R.K. Dey vs K.N. Rao & Ors.
2008 Latest Caselaw 1060 Del

                       Reportable
        IN THE HIGH COURT OF DELHI AT NEW DELHI

+Cont. App. (C) No.20/2007 and CM Appl. Nos.14398/07 &
                        5035/08

                                          Date of Decision: 18.07.2008


#R.K. Dey                              ....Appellant
!                                      Through: Ms.Maneesha Dhir with
                                       Ms.Preeti Dalal


                   Versus


$K.N. Rao & Ors.                       .....Respondents
^                                      Through Mr.R.K. Saini with
                                       Mr.Nikhil Bhalla


CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE MANMOHAN SINGH


      1.Whether Reporters of Local papers may be allowed to
        see the Judgment?
      2.To be referred to the Reporter or not?
      3.Whether the judgment should be reported in the Digest?


A.K. SIKRI, J. (Oral)

:

1. The respondent No.1 herein, on the basis of judgment dated

8.3.2006 passed by the Division Bench in WP(C)

No.4708/1997, wanted payment of subsistence allowance

from the date of his dismissal till the date of reinstatement

pursuant to the said orders of the Division Bench. As it was

not paid, the respondent No.1 (hereinafter referred to as the

„respondent‟ since respondents No.2 and 3 are proforma

parties) filed Cont. Cas (C) No.240/2007 in which vide order

dated 1.8.2007, directions were given by the learned Single

Judge to the appellants to make payment of the subsistence

allowance to the respondent. Challenging this order, present

appeal is filed primarily on the ground that as the Division

Bench in its order dated 8.3.2006 had authorized the

appellants to pass appropriate orders in respect of the said

period and armed with those directions the appellants have

passed the orders rejecting the claim of the subsistence

allowance and treated that period as dies non. On this basis,

submission of the appellant, essentially, is that if the

respondent was aggrieved against that order, his only

remedy was to challenge those orders by filing appropriate

proceedings and in no case, contempt would lie. For

appreciating this controversy, we will have to traverse the

material facts and we proceed to undertake that exercise

now.

2. The respondent was an employee of the Central Industrial

Security Force (CISF). At the relevant time, i.e., on 17.4.1996

he was working as Lance Naik. On certain allegations he was

charge-sheeted. Inquiry was held holding charges as proved

and orders dated 11.1.1997 were passed dismissing him from

service. He challenged those orders dated 11.1.1997 by filing

WP(C) No.4708/1997 in this Court. The Division Bench came

to the conclusion that the departmental proceedings, which

were initiated against the respondent, were conducted ex

parte, which was not proper as during the relevant period the

respondent was in hospital. Therefore, the inquiry as well as

the punishment order set aside giving liberty to the appellant

to proceed afresh against the respondent after giving due

opportunity to him. While setting aside the orders of

termination of service of the respondent as well as the order

of the Appellant Authority, the following directions were given

with which we are concerned in these proceedings:-

"The petitioner shall be reinstated in service. However, as the petitioner was under suspension at the time when the impugned order of termination was passed he shall be deemed to be under suspension from the date he is reinstated. The petitioner shall be paid subsistence allowance as per rules. So far as the period from the date of his termination till the date of his reinstatement is concerned, appropriate order in respect of the same shall be passed by the respondent in accordance with law. In view of the aforesaid order this writ petition stands

disposed of. It is also made clear that this order is passed in the light of the facts of the present case and shall not in any manner be treated as a precedent for any other case."

3. It is clear from the above that following three directions are

contained in the said order:-

a) The respondent was to be reinstated in service;

b) The respondent was deemed to be under

suspension from the date of reinstatement and

was to be paid subsistence allowance as per the

rules;

c) In so far as the period from the date of termination

till the date of instatement is concerned, the

Competent Authority was to pass appropriate

order for this period, in accordance with law.

4. The respondent was reinstated in service vide orders dated

29.3.2006. He was placed under deemed suspension with

effect from 23.3.2006. The first two directions were,

accordingly, duly complied with. Dispute remains about the

third direction.

5. The departmental inquiry was also conducted from the stage

of submission of reply to the charge and on the completion of

the same, the respondent was awarded the punishment of

reduction of pay to the lowest stage from Rs.3500/- to

Rs.3050/- in the time scale of Rs.3050-75-4590 for a period of

three years with cumulative effect vide orders dated

31.8.2006. After the imposition of this punishment, show

cause notice dated 19.9.2006 was served upon the

respondent as to why the period from his initial removal till

the reinstatement, on the basis of High Court orders, i.e.,

from 30.9.1996 to 22.3.2006 be not treated as dies non. He

was asked to make representation, if any, within a period of

15 days. He submitted his representation, which was not

found favourable and the Disciplinary Authority passed orders

dated 4.11.2006 treating the said period as dies non.

6. On the ground that the Disciplinary Authority could not pass

an order treating this period as dies non and he was to be

treated as under suspension for this period, the respondent

filed Contempt Petition No.1384/2006. The appellant

contested the petition, as mentioned above, on the ground

that since the Division Bench had authorized the appellant to

pass appropriate orders and such orders had, in fact, been

passed, the third direction contained in the orders dated

8.3.2006 passed by the Division Bench was also complied

with and therefore, there was no question of committing any

violation of that order. It was contended that if the appellant

was aggrieved by that order, proper remedy was to challenge

the same. The learned Single Judge after reproducing the

relevant portion of the orders dated 8.3.2006 (which we have

also extracted above) interpreted the said order in the

following manner and consequently, directed the appellant to

pay the subsistence allowance for the period in question:-

"4. Although the sentence in above operative portion reads: "however, as the petitioner was under suspension at the time when the impugned order of termination was passed he shall be deemed to be under suspension from the date he is reinstated", it is obvious that the word "from" should read as "till" since otherwise the sentence would be inconsistent with the rest of the order.

5. The Respondents are accordingly directed to re-compute the subsistence allowance payable to the petitioner during the period from the date of removal till the date of his reinstatement. Payment of the subsistence allowance be made by the respondents within four weeks and the compliance affidavit be filed within two weeks thereafter."

7. We may say at the outset that the aforesaid interpretation

given by the learned Single Judge is not correct. The learned

Single Judge has, in fact, altered the directions given by the

Division Bench by introducing the word "till" in place of word

"from" as appearing in the said order. We are also inclined to

agree with the contention of the learned counsel for the

appellant that once an order is passed giving direction in the

judgment to the appropriate authority to pass an order and

that order is passed, aggrieved party cannot normally file a

contempt petition but is supposed to challenge that order in

appropriate proceedings. Reason is simple, by passing the

order the directions are complied with and therefore, there is

no infraction of the directions.

8. Notwithstanding the above, in the present case we are of the

opinion that the respondent was to remain under deemed

suspension even for the period from the date of his

termination till the date of his reinstatement and therefore,

the ultimate outcome, namely, directions given by the

learned Single Judge in the impugned order does not call for

interference; albeit we do so for different reasons and not

subscribing to the view taken by the learned Single Judge.

Our reasons, in this behalf, are contained in the following

passages.

9. No doubt, the Department/Competent Authority was given

liberty by the Division Bench in its orders dated 8.3.2006 to

pass appropriate orders in respect of the period from the date

of termination of service till the reinstatement. At the same

time, it was made clear that such an order has to be in

accordance with law as is clear from the following line in the

said order: "Appropriate order in respect of the same shall be

passed by the respondent in accordance with law." The

Competent Authority, thus, while considering the issue as to

what treatment is to be given to the period from the date of

termination till reinstatement, when further inquiry was to be

held against the respondent herein, was to follow the relevant

law. Learned counsel for the respondent has pointed out that

the Central Industrial Security Force Rules, 2001, specifically

take care of this situation, as is clear from sub-rule (4) of Rule

33 which deals with suspension. This sub-rule reads as

follows:-

"33. (1) xxxxx (2) xxxxx (3) xxxxx (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon an enrolled member of the Force is set aside or declared or rendered void in consequence of or by a decision of a court of law and the disciplinary authority, on consideration of the circumstances [of] of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory

retirement was originally imposed, the enrolled member of the Force shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders."

10. The aforesaid rule clinchingly stipulates that such an

employee like the respondent in the present case has to be

treated as under deemed suspension from the date of

dismissal/removal etc. by using the expression "from the date

of original order of dismissal ....." In view of this rule, the

Disciplinary Authority had no choice to pass any other kind of

order. Merely because the Division Bench of this Court had

authorized the Disciplinary Authority to pass appropriate

orders dealing with the aforesaid period would not give carte

blanche. It is stated at the cost of repetition that the

Disciplinary Authority was under obligation to pass the order

"in accordance with law", which it is supposed to do even

otherwise, but here specifically mandated by the Division

Bench as well. Once we look into the matter from this angle,

it is obvious that the order of the Disciplinary Authority was

not in accordance with law and to that extent it was contrary

to the directions contained in the aforesaid order of the

Division Bench.

11. In these circumstances, we are of the opinion that the

order can be passed even in the contempt proceedings

directing the Disciplinary Authority to treat the respondent

under suspension for the period in question and pay the

subsistence allowance. These are the reasons because of

which we affirm the directions given by the learned Single

Judge, though we do not subscribe to the reasoning given by

the learned Single Judge in support of the said directions.

This appeal is accordingly dismissed. We may note that

during the pendency of this appeal the appellant had

deposited the amount in this Court. This amount shall be

released to the respondent forthwith.

                                                 (A.K. SIKRI)
                                                   JUDGE




July 18, 2008                              (MANMOHAN SINGH)
hp.                                               JUDGE