Delhi High Court
Kulachi Hansraj Model School & ... vs Hari Om Sharma & Anr on 12 July, 2018
$~
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 26/2017 & CM No.912/2017
% Date of decision : 12th July, 2018
KULACHI HANSRAJ MODEL SCHOOL & ANR. Appellants
Through: Mr. Rajshekhar Rao, Ms.
Amita Singh Kalkal and Mr.
Sameer Dawar, Advs.
versus
HARI OM SHARMA & ANR ..... Respondent
Through: Mr. J.S. Bakshi and Mr. A.K.
Bakshi, Advs. for R-1.
Mr. Yogesh Kumar, DEO,
Zone-XI.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
LPA No.26/2017
1. The appellant assails an order dated 19th October, 2016 passed
by the learned Single Judge, allowing W.P.(C) No. 8144/2010 which
had been filed by Late Sh. Hari Om Sharma (hereinafter referred to as
the 'employee'). By way of the writ petition, Sh. Sharma had
assailed an order dated 7th September, 2010 passed by the Presiding
Officer of the Delhi School Tribunal dismissing his appeal assailing
the inquiry report dated 5th February, 2002 made by the Inquiry
Officer after conducting disciplinary proceedings against Shri Hari
Om Sharma as the order of imposition of major penalty of removal
from service which had been conveyed to Sh. Sharma vide an order
dated 14th August, 2002.
2. The respondent had been appointed as a Physical Education
Teacher on 10th July, 1981 and confirmed as such on 12th July, 1985.
He was made the Physical Education Teacher and Transport Incharge
on 7th December, 1997 and w.e.f. 1st July, 1999, was promoted to the
TGT Scale. There had been no complaint against him and he enjoyed
19 years of unblemished record.
3. The appellant asserts that on complaints received in the year
2000 against him, disciplinary proceedings were initiated against the
respondent.
4. In contemplation of disciplinary proceedings, the respondent
was placed under suspension on 24th February, 2001 with immediate
effect. One Shri Singhal, a former District and Sessions Judge was
the CLO of the school. The management of the school appointed Shri
V.P. Kalra, a retired District & Sessions Judge as the inquiry officer.
It is on the record that (and the delinquent employees contention) Shri
V.P. Kalra was a close friend of the said Shri Singhal.
5. The delinquent official complained about the manner in which
the inquiry officer conducted the proceedings before the Delhi School
Tribunal in the brief synopsis if the appeal filed by the respondent.
6. As the Inquiry Officer was legally trained and experienced, and
in the above facts, the respondent made a request to be defended by a
defence counsel and to avail the assistance of an advocate.
The request of the delinquent unfolded as noted hereafter. It
appears that during the inquiry proceedings, the employee made a
request vide a letter dated 16th July, 2001 for certain documents and
further to the effect that the disciplinary proceedings to be rescheduled
at 2 p.m. for the reason that his Counsel was likely to be not available
before such time as he would be busy in court. In response, the
employee was informed that a legal practitioner could not be allowed
as a defence assistant in the domestic inquiry and that he could take
the assistance of an employee or a union representative of the
institution. This request was thus declined. The respondent contended
before the Delhi School Tribunal that this refusal vitiated the inquiry.
7. The submission is that the Inquiry Officer proceeded with the
inquiry and submitted a report dated 5th February, 2002 finding the
employee guilty of the charges with which he was charged. The
Disciplinary Authority agreed with the findings of the Inquiry Officer
and by an order dated 14th August, 2002 imposed the penalty of
removal from service.
8. Aggrieved thereby, Sh. Hari Om Sharma filed an appeal being
Appeal No. 60/2002 before the Delhi School Tribunal. This appeal
remained pending before the Delhi School Tribunal for a long period
of 8 years. It came to be rejected only on 7th September, 2010 and the
Tribunal upheld order of removal from service was upheld.
9. The order of dismissal from service by the School as well as the
order dated 7th September, 2010 of the Delhi School Tribunal was
assailed by the appellant by way of W.P.(C) No.8144/2010. Inter
alia, it was urged on behalf of Sh. Hari Om Sharma that the inquiry
was vitiated for the reason that even though the Inquiry Officer was a
retired District & Sessions Judge, a person with a trained legal mind,
the services of a lawyer were not permitted for conducting his defence
and that as such, the inquiry had been conducted in violation of
principles of natural justice.
10. In support of this submission, reliance was placed by counsel
for the employee on the pronouncement of the Supreme Court
reported at (2013) 6 SCC 530 Chairman, LIC of India & Ors. v. A.
Masilamani.
Additionally, reliance was placed on the pronouncement of the
Supreme Court in Civil Appeal No. 8824/2012, Professor Ramesh
Chandra v. University of Delhi & Ors. wherein the Supreme Court
had specifically held that if any person, who is or was a legal
practitioner including a retired Judge, is appointed as an Inquiry
Officer in disciplinary proceedings against an employee, denial of the
assistance of a legal practitioner to the charged employee would be
unfair.
11. We may note that the respondents did not file any reply to the
writ petition. Instead only a three page synopsis dated 3 rd August,
2016 was filed mentioning bald facts and placing reliance on the
pronouncements of the Supreme Court reported at 1996 (1) LMJ 1231
SC, B.C. Chaturvedi v. Union of India & Ors. setting out the
limitations on the powers of judicial review of the order with regard to
the disciplinary proceedings.
12. After a detailed consideration, the ld. Single Judge by the
judgment dated 19th October, 2016 accepted the writ petition directing
as follows :
"6. In view of the above settled position in law, the petitioner
would be treated as having been reinstated in the service.
However, his reinstatement would be taken from the point
that the inquiry proceedings against him were vitiated by
breach of principles of natural justice. The petitioner was
suspended for a period of one year with effect from
24.02.2001. He would therefore be entitled to 75% of his
salary after three months' of such suspension order. Hence,
from the 4th month of the suspension order, the petitioner
would be entitled to 75% of his salary since he would be
treated as being on suspension but in service, along with
consequential benefits of service.
7. In the circumstances, the impugned order dated
07.09.2010, Inquiry Report dated 05.02.2002 and imposition
of major penalty of removal from the service dated
14.08.2002 are quashed. The petitioner shall be treated as
being in service but under suspension and shall be entitled to
75% of the salary from the 4th month of the order of
suspension. The money will be paid to the petitioner in two
equal instalments in four weeks.
8. Should the respondent choose to proceed against the
petitioner as per the charge-sheet issued, it may do so.
9. The petitioner shall be entitled to assistance of a counsel
should the inquiry proceedings be conducted by a retired
judge or a legally trained mind.
10. The writ petition is disposed off in the above terms."
13. It is contended by Mr. Rajshekhar Rao, ld. counsel for the
appellants that the factual basis in Ramesh Chandra was that both the
inquiry officer as well as the presenting officer were legally trained
persons and therefore, the finding of the Supreme Court in para 70 has
overlooked the fact that the presenting officer in the present case was
not a legally trained person.
14. We find ourselves unable to agree with this submission. The
Supreme Court has explicitly noted the facts of the case which
included the qualifications of the defending officer and the inquiry
officer. The findings have thereafter been categorically recorded. For
expediency, we extract para 70 of the judgment of the Supreme Court
in Ramesh Chandra wherein the court has categorically held as
follows :
"70. In view of the law laid down by this Court, we are of
the view that if any person who is or was a legal
practitioner, including a retired Hon'ble Judge is
appointed as an enquiry officer in an inquiry initiated
against an employee, the denial of assistance of a legal
practitioner to the charged employee would be unfair."
(Emphasis by us)
15. Before the Supreme Court, the fact that the presenting officer
was also a legally trained person was really only an additional fact.
The court was concerned with fair opportunity to present his defence
to an officer who was defending himself in disciplinary proceedings
while laying down the above position and has clearly reiterated the
legal position that if the inquiry officer is a legally trained mind which
would include a retired judge, the charged employee would be entitled
to the services of a legally trained mind for conducting his defence. It
has been held that denial of such defence officer would be in violation
of principles of natural justice.
16. We may place useful reliance on the pronouncement of the
Supreme Court reported at (1983) 1 SCC 124 Port of Bombay v.
Dilipkumar Raghavendranath Nadkarni, where the court has
expounded on the need for allowing legal assistance to an employee,
where he is being pitted against a legally trained mind:-
"9. We concern ourselves in this case with a narrow
question whether where in such a disciplinary enquiry by a
domestic tribunal, the employer appoints Presenting-cum-
Prosecuting Officer to represent the employer by persons
who are legally trained, the delinquent employee, if he seeks
permission to appear and defend himself by a legal
practitioner, a denial of such a request would vitiate the
enquiry on the ground that the delinquent employee had not
been afforded a reasonable opportunity to defend himself,
thereby vitiating one of the essential principles of natural
justice.
10. Even in a domestic enquiry there can be very serious
charges, and an adverse verdict may completely destroy the
future of the delinquent employee. The adverse verdict may
so stigmatize him that his future would be bleak and his
reputation and livelihood would be at stake. Such an enquiry
is generally treated as a managerial function and the
Enquiry Officer is more often a man of the establishment.
Ordinarily he combines the role of a Presenting-cum-
Prosecuting Officer and an Enquiry Officer a Judge and a
prosecutor rolled into one. In the past it could be said that
there was an informal atmosphere before such a domestic
tribunal and that strict rules of evidence and pitfalls of
procedural law did not hamstring the enquiry by such a
domestic tribunal. We have moved far away from this stage.
The situation is where the employer has on his pay
rolls labour officers, legal advisers -- lawyers in the garb of
employees -- and they are appointed Presenting-cum-
Prosecuting Officers and the delinquent employee pitted
against such legally trained personnel has to defend himself.
Now if the rules prescribed for such an enquiry did not place
an embargo on the right of the delinquent employee to be
represented by a legal practitioner, the matter would be in
the discretion of the Enquiry Officer whether looking to the
nature of charges, the type of evidence and complex or
simple issues that may arise in the course of enquiry, the
delinquent employee in order to afford a reasonable
opportunity to defend himself should be permitted to appear
through a legal practitioner. Why do we say so? Let us
recall the nature of enquiry, who held it, where it is held and
what is the atmosphere? Domestic enquiry is claimed to be a
managerial function. A man of the establishment dons the
robe of a Judge. It is held in the establishment office or a
part of it. Can it even be compared to the adjudication by
an impartial arbitrator or a court presided over by an
unbiased Judge?. The Enquiry Officer combines the judge
and prosecutor rolled into one. Witnesses are generally
employees of the employer who directs an enquiry into
misconduct. This is sufficient to raise serious
apprehensions. Add to these uneven scales, the weight of
legally trained minds on behalf of employer simultaneously
denying that opportunity to delinquent employee. The
weighted scales and tilted balance can only be partly
restored if the delinquent is given the same legal assistance
as the employer enjoys. Justice must not only be done but
must seem to be done is not a euphemism for courts alone,
it applies with equal vigour and rigour to all those who
must be responsible for fair play in action. And a quasi-
judicial tribunal cannot view the matter with equanimity
on inequality of representation. This Court in M.H.
Hoskot v. State of Maharashtra [(1978) 3 SCC 544 : 1978
SCC (Cri) 468 : AIR 1978 SC 1548 : 1978 Cri LJ 1678]
clearly ruled that in criminal trial where prosecution is in
the hands of public prosecutor, accused, for adequate
representation, must have legal aid at State cost. This will
apply mutatis mutandis to the present situation."
(Emphasis by us)
17. In the present case, the fact that the inquiry officer was a retired
judicial officer is not denied. The above narration of facts would
show that as per the representation dated 16th July, 2001, the
employee in fact had appointed a lawyer but was not permitted to use
his services during the inquiry.
18. It is also important to note that the deceased Shri Hari Om
Sharma had sought leave to be defended by a lawyer at the earliest.
The inquiry report before us notes that Shri Hari Om Sharma had
submitted a representation dated 16th July, 2001. This was even
before first date of preliminary inquiry held on 19 th July, 2001. This
request was not favourably considered.
19. The record also shows that the order of Disciplinary Authority
was assailed by way of an appeal filed in 2002 by the Delhi School
Tribunal which remained pending for 8 years and came to be decided
against Shri Hari Om Sharma only in the year 2010.
20. The writ petition (being W.P.(C)No.8144/2010) filed by Shri
Hari Om Sharma in 2010 was not heard for a long time. Shri Hari Om
Sharma filed an application being CM No10604/2016 for expeditious
hearing, which came to be allowed by the court on 12th July, 2016.
We may note that the ground for seeking expedited hearing by
Shri Hari Om Sharma was that he had been suffering from Stage IV-
Cancer. We are noting this fact only for the reason that the appellants
before us were put to notice about the criticality so far as the health of
Shri Hari Om Sharma was concerned. As a result of this fervent
prayer for a hearing that the writ petition was taken up for hearing and
decided by the order impugned before us.
21. In this background, the finding of the learned Single Judge that
the inquiry was conducted in violation of the principles of natural
justice and that the Inquiry Report dated 5th February, 2002 and the
order dated 14th August, 2002 dismissing the respondent from service,
are unassailable.
22. It is also to be noted that despite having been fully aware of the
urgency of proceeding in the matter and the order of the ld. Single
Judge having been passed on 19th October, 2016, the appellants before
us took no steps in the matter. When we say that the appellants took
no steps, we are adverting not only to the fact that they took no steps
in proceeding with the inquiry, as directed by the ld. Single Judge but
also took no effective steps to ensure that their challenge to the order
dated 19th October, 2016 was actually listed and heard.
This inaction was despite the matter being brought to the
appellants notice.
23. An unfortunate event has intervened in the meantime. We are
informed by Mr. J.S. Bakshi, learned counsel for the employee that
unfortunately on 18th December, 2016, Sh. Hari Om Sharma has
expired.
24. The present appeal was filed and listed for the first time on 11 th
January, 2017 i.e. after the death of the employee.
25. Another important fact which intervened in the matter was that
Shri Hari Om Sharma, during his lifetime, filed a petition under the
Contempt Of Courts Act, 1971 being Cont.Cas.(C)No.1257/2016
complaining that the appellants had failed to comply with the orders
of the ld. Single Judge. This contempt petition was disposed of by the
ld. Single Judge by an order dated 21st February, 2017 which has been
placed before us and reads as follows :
"After some arguments, it is agreed that half of the
75% of the salary, directed to be paid by a Coordinate Bench
of this Court vide order dated 19th October, 2016 in W.P.(C)
8144/2010, i.e. Rs.22,00,942/- shall be released to the two
petitioners in equal share subject to their furnishing
undertakings to this Court that in the event the respondent-
school's LPA No.26/2017 is ultimately allowed, petitioners
shall refund the said amount to the respondent-school.
The undertakings are directed to be furnished by the
petitioners on or before 22nd February, 2017 and the amount
is directed to be released to the petitioners within twenty-four
hours thereafter.
The balance 50% amount shall be deposited by the
respondent-school with the Registry of this Court within a
period of two weeks. The said amount shall be released
subject to further orders to be passed in LPA 26/2017.
It is clarified that the aforesaid payments are only in
pursuance to the order dated 19th October, 2016 passed in
W.P.(C) 8144/2010.
By the aforesaid consensual order, present contempt
petition and application stand disposed of.
Order dasti under the signature of Court Master."
26. Mr. Rajshekhar Rao, learned counsel for the appellant/school
has contended that Mr. Hari Om Sharma was suspended from service
for a period of one year with effect from 24th February, 2001. At the
time of passing of the final order on 19th October, 2016 in the writ
petition, the penalty of removal from service by the order dated 14th
August, 2002 stood against him and as such he was not in service.
27. We are informed by Mr. Rajshekhar Rao, ld. counsel for the
appellants that the amount in terms of the order of the ld. Single Judge
has been computed by the appellants at a total amount of
Rs.44,01,884/-. We are informed that an amount of Rs.22,00,942/-
has been paid to the respondent in terms thereof and the balance
amount is lying deposited in this court.
28. It is submitted by Mr. Rajshekhar Rao that the allegations with
which the employee was charged were extremely serious in nature and
that the order of the Single Judge dated 19 th October, 2016 directing
that the employee be treated as being in service but under suspension
and entitled to 75% of his salary from the 4th month of the order of
suspension on 24th February, 2001 is unfair and unsustainable.
29. Per contra, Mr. J.S. Bakshi would urge that the inquiry report
dated 5th February, 2002 and the major penalty of removal from
service dated 14th August, 2002 stand quashed by the order dated 19th
October, 2016.
30. As noted above, so far as the request for permission to be
defended by a lawyer is concerned, Shri Hari Om Sharma had made
the request by his letter dated 16th July, 2001 which was even before
the first hearing before the inquiry officer.
31. Vide the letter dated 16th of July 2001, the respondent had made
a request for certain documents and sought rescheduling of the time of
the inquiry. Clearly, on that date, the inquiry was at the very initial
stage. The ld. Single Judge had remanded the matter by the order
dated 19th October, 2016 when it would have commenced by this
stage.
32. We find that in the impugned order, the learned Single Judge
has noted the ratio laid in Chairman, LIC of India & Ors. v.
Masilamani wherein it has been held that the disciplinary proceedings
which violate the principles of natural justice would have to be set
aside right from the stage when the benefit of assistance of a lawyer
was not given, and that the impugned inquiry report would have to be
set aside because the corresponding nature of defense assistance was
not accorded to the petitioner and that a fresh inquiry would have to
be conducted in view of the aforesaid judgment.
33. It is further submitted that even after the passing of the orders
dated 19th October, 2016, the appellant took no steps at all, either to
initiate the inquiry or to pay the amount which was directed to be paid
as subsistence allowance.
34. It is pointed out that, therefore, as on 18th December, 2016
when Sh. Hari Om Sharma expired, other than the framing of charges,
no steps had taken place in the Inquiry even in accordance with law.
35. Mr. J.S. Bakshi would submit that as such, the legal heirs of the
employee are really entitled to the full arrears of the salary and dues
payable to Sh. Hari Om Sharma. In support of this submission,
reliance is placed on the pronouncement of the Supreme Court in the
judgment reported at 2013 (12) SCC 322, Deepali Gundu Surwase v.
Kranti Junior Adhyapak Mahavidyalaya (D.Ed.) & Ors..
36. The judgment in Deepali Gundu dealt with a case of
termination of service. The Supreme Court has laid down the
applicable principles as follows :
"33. The propositions which can be culled out from the
aforementioned judgments are:
i) In cases of wrongful termination of service,
reinstatement with continuity of service and back wages
is the normal rule.
ii) The aforesaid rule is subject to the rider that while
deciding the issue of back wages, the adjudicating
authority or the Court may take into consideration the
length of service of the employee/workman, the nature of
misconduct, if any, found proved against the
employee/workman, the financial condition of the
employer and similar other factors.
iii) Ordinarily, an employee or workman whose services
are terminated and who is desirous of getting back wages
is required to either plead or at least make a statement
before the adjudicating authority or the Court of first
instance that he/she was not gainfully employed or was
employed on lesser wages. If the employer wants to avoid
payment of full back wages, then it has to plead and also
lead cogent evidence to prove that the
employee/workman was gainfully employed and was
getting wages equal to the wages he/she was drawing
prior to the termination of service. This is so because it is
settled law that the burden of proof of the existence of a
particular fact lies on the person who makes a positive
averments about its existence. It is always easier to prove
a positive fact than to prove a negative fact. Therefore,
once the employee shows that he was not employed, the
onus lies on the employer to specifically plead and prove
that the employee was gainfully employed and was getting
the same or substantially similar emoluments.
iv) The cases in which the Labour Court/Industrial
Tribunal exercises power Under Section 11-A of the
Industrial Disputes Act, 1947 and finds that even though
the enquiry held against the employee/workman is
consistent with the rules of natural justice and/or certified
standing orders, if any, but holds that the punishment was
disproportionate to the misconduct found proved, then it
will have the discretion not to award full back wages.
However, if the Labour Court/Industrial Tribunal finds
that the employee or workman is not at all guilty of any
misconduct or that the employer had foisted a false
charge, then there will be ample justification for award of
full back wages.
v) The cases in which the competent Court or Tribunal
finds that the employer has acted in gross violation of the
statutory provisions and/or the principles of natural
justice or is guilty of victimizing the employee or
workman, then the concerned Court or Tribunal will be
fully justified in directing payment of full back wages. In
such cases, the superior Courts should not exercise power
under Article 226 or 136 of the Constitution and interfere
with the award passed by the Labour Court, etc., merely
because there is a possibility of forming a different
opinion on the entitlement of the employee/workman to get
full back wages or the employer's obligation to pay the
same. The Courts must always be kept in view that in the
cases of wrongful/illegal termination of service, the
wrongdoer is the employer and sufferer is the
employee/workman and there is no justification to give
premium to the employer of his wrongdoings by relieving
him of the burden to pay to the employee/workman his
dues in the form of full back wages.
vi) In a number of cases, the superior Courts have
interfered with the award of the primary adjudicatory
authority on the premise that finalization of litigation has
taken long time ignoring that in majority of cases the
parties are not responsible for such delays. Lack of
infrastructure and manpower is the principal cause for
delay in the disposal of cases. For this the litigants cannot
be blamed or penalised. It would amount to grave injustice
to an employee or workman if he is denied back wages
simply because there is long lapse of time between the
termination of his service and finality given to the order of
reinstatement. The Courts should bear in mind that in most
of these cases, the employer is in an advantageous position
vis-à-vis the employee or workman. He can avail the
services of best legal brain for prolonging the agony of the
sufferer, i.e., the employee or workman, who can ill afford
the luxury of spending money on a lawyer with certain
amount of fame. Therefore, in such cases it would be
prudent to adopt the course suggested in Hindustan Tin
Works Private Limited v. Employees of Hindustan Tin
Works Private Limited (supra).
vii) The observation made in J.K. Synthetics Ltd. v. K.P.
Agrawal (supra) that on reinstatement the
employee/workman cannot claim continuity of service as
of right is contrary to the ratio of the judgments of three
Judge Benches referred to hereinabove and cannot be
treated as good law. This part of the judgment is also
against the very concept of reinstatement of an
employee/workman."
(Emphasis by us)
37. The learned Single Judge has placed reliance on the above
principles to direct the respondents to pay 75% of the salary after
three months of such suspension order.
38. We have rejected the appellants challenge to the order of the ld.
Single Judge dated 19th October, 2016. The ld. Single Judge had set
aside the order dated 7th September, 2010 of the Delhi School
Tribunal and directed that Shri Hari Om Sharma be treated as being
in service. The appellants did not impugn the said orders. As a result
of our rejection of the order of the ld. Single Judge; on account of
intervention of the unfortunate fact that Shri Hari Om Sharma expired
on 18th December, 2016 and as a result of his being held to be treated
in service, the natural consequence would be that the legal heirs of
Shri Hari Om Sharma would be entitled to the entire financial benefits
to which he was entitled at the time of his death.
39. In the light of the above factual narration, it cannot be contested
that by virtue of the impugned order dated 19 th October, 2016, the ld.
Single Judge had set aside the inquiry report dated 5 th February, 2002
as well as the order dated 14th August, 2002 imposing the major
penalty of removal from service upon Shri Hari Om Sharma. On 18 th
December, 2016, when Shri Hari Om Sharma expired, there was no
disciplinary proceedings concluded against him and no order of
punishment. There was no order of dismissed from service against the
employee.
40. In its pronouncement reported at JT (2013) 12 SC 322, Deepali
Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, the
Supreme Court has emphasized the well settled principle that in cases
of wrongful termination of service, reinstatement with continuity of
service and back wages is the rule.
41. While considering the aspect of entitlement to full or partial
back wages as a consequence, in sub-para (iii) of para 33 of Deepali
Gundu judgment, the court has directed that "ordinarily, an employee
or workman whose services are terminated and who is desirous of
getting back wages is required to either plead or at least make a
statement before the adjudicating authority or the court of first
instance that he/she was not gainfully employed or was employed on
lesser wages. If the employer wants to avoid payment of full back
wages, then it has to plead and also lead cogent evidence to prove
that the employee/workman was gainfully employed and was getting
wages equal to the wages he/she was drawing prior to the
termination of service."
42. In the present case, Mr. J.S. Bakshi, ld. counsel for the
respondent no.1 has drawn our attention to the following assertions
made in para 7, the application dated 18th October, 2016 filed by the
petitioner for directions of payment of subsistence allowance wherein
the writ petitioner pleaded as follows :
"7. That the petitioner has been turned into a mental
wreck. He has no independent income and is dependent
only upon his wife. He is not gainfully employed anywhere.
He is in a state of penury and requires at least some
subsistence allowance as quantified by the Hon'ble Court."
(Emphasis supplied)
This factual assertion was not disputed by the respondents.
43. An application dated 1st March, 2016 seeking early hearing of
the matter was filed, relevant portion whereof reads as follows :
"3. That the Petitioner is suffering from cancer i.e.
'Peritoneum: Metstatic Mucinous Adenocarcinoma
th
appendix (4 stage).
4. That if the matter is not immediately posted for
hearing, it might be that the Petitioner is unable to get the
benefit of the decision of the present writ petition, even if the
same is in favour of the petitioner.
xxx xxx xxx
6. That in the event the Orders as prayed for are not
passed the petitioner shall suffer irreparable loss and injury,
which cannot be compensated."
44. It is noteworthy that the appellants have at no place stated that
Shri Hari Om Sharma was gainfully employed.
45. We may note that it is not the appellants contention even before
us that Shri Hari Om Sharma was gainfully employed, at any stage
after his dismissal, till his death.
46. Mr. J.S. Bakshi, ld. counsel for the respondent no.1 has also
drawn our attention to Clause 4 of Rule 116 of the Delhi School
Education Rules, 1973 which reads as follows :
"116. Subsistence allowance
xxx xxx xxx
(4) Where a suspended employee is exonerated after
disciplinary proceeding or where any criminal prosecution
against a suspended employee ends with an honorable
acquittal the salaries and allowances of such employee
minus the subsistence allowance received by him shall be
paid to him from the date on which he was suspended."
47. Though it is self-evident, we may note that our direction, to
disburse the entire financial benefits to the legal heirs of Shri Hari Om
Sharma is not in any way affected by the directions, in the impugned
order of the learned Single Judge (which we have otherwise upheld)
entitling Shri Hari Om Sharma to 75% of his salary by way of
subsistence allowance. That direction was conditional upon a de novo
enquiry being held against Shri Hari Om Sharma. That enquiry,
obviously, cannot be held, owing to the unfortunate demise of Shri
Hari Om Sharma in the interregnum. What survives are the legal heirs
of Shri Hari Om Sharma, and the quashing of the disciplinary
proceedings held against him. The benefit, of the latter, must of
necessity enure to the former. The disciplinary proceedings against
Shri Hari Om Sharma having been set aside, all financial benefits, that
would result as a consequence thereof, must enure in favour of his
legal heirs.
48. The matter may be viewed from another angle as well.
Effectively, because of the demise of Shri Hari Om Sharma, all that
remains against him, at worst, is a charge-sheet, which can never be
decided. Mere issuance of a charge-sheet can afford no ground to
withhold any part of an employee's emoluments. For this reason, too,
the legal heirs of Shri Hari Om Sharma would be entitled to his entire
financial benefits.
49. As noted above, the respondents have deposited the amount of
Rs.22,00,942/- in the Registry in Cont.Cas(C)No.1257/2016.
However, calculation of the basis thereof has to be furnished to the
legal heirs. The above amount shall be released to the legal heirs of
the Shri Hari Om Sharma. The orders with regard to the balance
amount, due and payable as required in terms of this order, have to be
made.
50. In view of the above, it is directed as follows :
(i) The disciplinary proceedings against the respondent shall stand
abated.
(ii) The appellants are directed to forthwith effect computation of
the entire salary and allowances admissible to Shri Hari Om Sharma.
The appellants would be entitled to deduct the amount of subsistence
allowance paid to Shri Hari Om Sharma, the amount of Rs.22,00,942/-
paid to his legal representatives under orders of the court and the
amount lying deposited in this court.
(iii) The calculations of the above amount shall be furnished to Mr.
J.S. Bakshi, ld. counsel for the respondent no.1 within a period of two
weeks from today.
(iv) The respondents shall pay the balance amount due and payable
under the present orders to Smt. R. Sujata Sharma and Shri Avinash,
the widow and only son of Late Shri Hari Om Sharma respectively
within a period of two weeks thereafter.
(v) The Registry is directed to forthwith release the amount of
Rs.22,00,942/- lying deposited in this court.
(vi) The respondents shall be entitled to the costs of the present
appeal which are quantified at Rs.25,000/-. The same shall also be
paid by the appellants to the respondents within four weeks from
today.
51. This appeal is dismissed in the above terms.
CM No.912/2017
In view of the orders passed in the appeal, this application does
not survive for adjudication and is hereby dismissed.
Dasti.
ACTING CHIEF JUSTICE
ANU MALHOTRA, J
JULY 12, 2018/aj
