Government Of Nct Of Delhi vs Mahender Singh
2011 Latest Caselaw 2317 Del

$~28.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+       WRIT PETITION (CIVIL) NO. 2800/2011

                                      Judgment delivered on : 29th April, 2011

        GOVERNMENT OF NCT OF DELHI         ..... Petitioner
                   Through Mr. V.K. Tandon, Advocate.

                          Versus

        MAHENDER SINGH                                      ..... Respondent
                    Through Nemo.

         CORAM:
         HON'BLE THE CHIEF JUSTICE
         HON'BLE MR. JUSTICE SANJIV KHANNA

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 ?

SANJIV KHANNA, J.:

        Government of National Capital Territory of Delhi has filed

the present writ petition to assail the order dated 18th January,

2011 allowing O.A. No. 3111/2009 filed by Mr. Mahender Singh

with the following directions:


                 "7. In view of the above, the OA is
                 disposed of with a direction to the
                 respondents to pass orders for payment
                 of subsistence allowance to the applicant
                 for the period from 23.05.2007 to
                 02.04.2008 and to review the case of the
                 applicant for grant of enhanced
                 subsistence allowance as per the rules on
                 the subject reckoning his date of
WRIT PETITION (CIVIL) No. 2800/2011                                   Page 1 of 4
                  suspension as 23.05.2007. This may be
                 done within six weeks from the date of
                 receipt of a copy of this order."
2.      In the writ petition, various factual aspects have been

mentioned but these to our mind are not relevant as these are

allegations on the basis of which departmental proceedings

have been initiated against the respondent. The respondent is

facing prosecution under the Prevention of Corruption Act, 1988.

He was suspended vide order dated 24th May, 2007 with effect

from 23rd May, 2007.                  Subsequently, he was dismissed from

service under Article 311(2)(b) of the Constitution by the

disciplinary authority vide order dated 1st June, 2007 but this

order was set aside in appeal by the appellate authority vide

order dated 28th March, 2008. The operative portion of the order

dated 28th March, 2008 passed by the appellate authority reads

as under:


                 "     In view of the above, the
                 punishment order dated 1.6.2007 issued
                 by the disciplinary authority is set aside.
                 Ex. ASI Sukhdev Singh No. 2573/W and
                 Ex. HC Mahender Singh No. 593/W be
                 re-instated in service without prejudice to
                 the disciplinary proceedings which may
                 be re-instated in service without prejudice
                 to the disciplinary proceedings which may
                 be instituted against them in the due
                 course of time. On their re-instatement,
                 they should remain under suspension till
WRIT PETITION (CIVIL) No. 2800/2011                               Page 2 of 4
                  their case is decided or disciplinary
                 proceedings are initiated against them.
                 The intervening period from the date of
                 dismissal to the date of his reporting back
                 for duty and their suspension period will
                 be decided after a final decision is taken
                 in   the    criminal    case/departmental
                 enquiry."
                                      (emphasis supplied)
3.      The net effect of the aforesaid order is that the order of

dismissal has been set aside by the appellate authority with the

direction that the disciplinary proceeding should be initiated.

Thus, the order of dismissal dated 1st June, 2007 stands

obliterated and the respondent is under deemed suspension.

The respondent continues to remain in employment and

accordingly is entitled to subsistence allowance and in this

context the tribunal has issued the directions mentioned in

paragraph 7 above. The aforesaid directions do not stipulate or

state the amount of subsistence allowance which is to be paid

and it has been left to the authorities to determine and deicide

the same.


4.      Learned counsel for the petitioner has submitted that in

view of the directions given by the appellate authority, no

subsistence allowance can be paid for the period 23rd May, 2007

to 2nd April, 2008. The said contention is without substance and
WRIT PETITION (CIVIL) No. 2800/2011                            Page 3 of 4
 is not supported by any rule or provision.    The petitioner is

misreading the order of the appellate authority to mean that

subsistence allowance has been denied for this period or the

question of subsistence allowance will be decided only when the

departmental proceedings are finally decided. The contention of

the petitioner cannot be accepted and accordingly we do not find

any merit in the present writ petition and the same is dismissed

in limine.




                                        SANJIV KHANNA, J.

CHIEF JUSTICE

APRIL 29, 2011 VKR