Mtnl & Anr. vs R.K.Gupta & Anr.
2013 Latest Caselaw 1251 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                               Date of Decision : March 13, 2013

+      WP (C) 5299/2010

       MTNL & ANR.                                .....Petitioners
               Represented by:         Mr.Vaibhav Kalra, Advocate

                                  versus

       R.K.GUPTA & ANR.                           ..... Respondents
                Represented by:        Mr.K.P.Gupta, Advocate

       CORAM:
       HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
       HON'BLE MS. JUSTICE PRATIBHA RANI

PRADEEP NANDRAJOG, J. (Oral)

1. The first respondent was placed under suspension vide order dated January 04, 2001. He was charge sheeted on February 03, 2003. Pending inquiry, the suspension order was revoked on March 15, 2003.

2. Another vigilance inquiry commenced against the first respondent in which pending investigation, he was suspended on March 28, 2004.

3. With respect to the charge sheet issued on February 03, 2003, to which we shall refer to as the first charge sheet, upon being held guilty, penalty of compulsory retirement was inflicted upon the first respondent on November 29, 2004, and needless to state on said date the first respondent was under suspension pursuant to the order dated March 28, 2004 with respect to the second inquiry, which was at that time at the stage of investigation.

4. In the departmental appeal filed against the order dated November 29, 2004, the Appellate Authority set aside the penalty of compulsory retirement vide appellate order dated May 19, 2006 and the result was the first respondent being reinstated in service.

5. Suffice would it be to state that the order of suspension dated March 28, 2004, which had got eclipsed when the order dated November 29, 2004 was passed compulsorily retiring the first respondent, got restored on its own strength when the object casting the eclipse i.e. the penalty order dated November 29, 2004 was set aside by the appellate order dated May 19, 2006.

6. In what manner the period intervening the date of compulsory retirement till the first respondent was reinstated in service was to be treated, required an order to be passed. On July 20, 2006 it was directed that said period shall be treated as on duty for all purposes. Thereafter a second charge sheet was issued on December 21, 2006.

7. The Disciplinary Authority realized that when first respondent was compulsorily retired he was under suspension. And thus it passed an order on October 25, 2008 that the first respondent would be treated as deemed to be suspended during the period interregnum the date of compulsorily retirement till date of reinstatement and during this period the first respondent shall receive subsistence allowance equal to 50% of his pay last drawn.

8. Vide impugned order dated October 07, 2009 the Tribunal has faulted the order dated October 25, 2008 holding that there is no concept of a deemed suspension and that too from a retrospective date.

9. Regretfully, nobody pointed out to the Tribunal that there exists in law a doctrine known as 'doctrine of eclipse'. The said doctrine means that where an order or an act comes under a shadow of an object

i.e. an eclipse takes place, the moment the object casting the shadow moves out of the way, the act or the order shines on its own strength; ex proprio vigore. The Tribunal got misled by the wrong language used in the order dated October 25, 2008 that it was a case of deemed suspension.

10. Thus the view taken by the Tribunal is incorrect. But we find a taint in the order dated October 25, 2008, which directs that only 50% of the last drawn pay shall be paid towards subsistence allowance ignoring that if the delinquent is not at fault and delay in conducting the inquiry is not attributable to the delinquent, the subsistence allowance needs to be revised after 3 months to 75% of the last drawn salary.

11. Thus, we dispose of the writ petition setting aside the impugned order dated October 07, 2009. Order dated October 25, 2008 passed by the Competent Authority is restored but with a modification that respondent would receive subsistence allowance for the period in question at the rate of 75% of the last salary drawn when he was suspended.

12. No costs.

13. Dasti.

(PRADEEP NANDRAJOG) JUDGE

(PRATIBHA RANI) JUDGE MARCH 13, 2013 mm