Delhi High Court
Rohit Sharma vs Union Of India, Through Its ... on 25 May, 2021
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25th May, 2021
+ W.P.(C) 5503/2021
ROHIT SHARMA ..... Petitioner
Through: Mr. Jai Singh Mann, Advocate.
Versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Vikram Jetley, CGSC for R-1.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
HON'BLE MR. JUSTICE AMIT BANSAL
[VIA VIDEO CONFERENCING]
RAJIV SAHAI ENDLAW, J.
C.M.Nos.17048/2021 & 17049/2021(both for exemption)
1. Allowed, subject to all just exceptions and as per extant Rules.
2. The applications stand disposed of.
W.P.(C) 5503/2021 & C.M. No.17047/2021(for stay)
3. The petition impugns the order dated 17th May, 2021 of the Armed
Forces Tribunal (AFT), Principal Bench, New Delhi, of, while admitting the
OA 890/2021 preferred by the petitioner impugning the order dated 5th
April, 2021 of his discharge from the respondents Indian Navy (on the
ground of having got inducted into the respondents Indian Navy by playing
fraud), dismissing the application of the petitioner for interim relief of stay
of the discharge order, observing that "keeping in view the seriousness of
the allegations, we do not deem it appropriate at this stage to stay the
discharge order".
4. We have enquired from the counsel for the petitioner, how can there
be an interim stay of the order of discharge of the petitioner from service
inasmuch as the same cannot be undone in the event of the OA of the
petitioner being ultimately dismissed; on the contrary, if the OA ultimately
succeeds, the petitioner can be restored to the same position as would have
been had the discharge order not been passed, monetarily as well as in terms
of seniority.
5. The counsel for the petitioner contends that the discharge order has
not been implemented as yet and thus the same status can be ordered to
continue. It is also contended that the petitioner has a prima facie good case
and the basic procedural requirements have not been fulfilled before passing
the discharge order. It is yet further contended that if the petitioner is
discharged, he will not be receiving his pay and other emoluments and the
petitioner is a poor person who would find it difficult to survive without the
emoluments. It is yet further stated that the father of the petitioner is ailing.
6. On enquiry, when the discharge order was/is to come in force, the
counsel for the petitioner states that the discharge order does not give any
date but has not been served on the petitioner as yet.
7. The counsel for the respondents Indian Navy appearing on advance
notice states that the order could not be served on the petitioner since the
petitioner has been on leave, claiming to be in quarantine.
8. As far as the other contentions of the counsel for the petitioner are
concerned, though our sympathies are with the petitioner but we, in law are
not empowered to pass an interim order, the effect whereof cannot be
undone at the final stage. The Court, whenever passes an interim order, at
the time of final adjudication is required to and ought to balance the equities
flowing from the said interim order. Reference in this regard may be made
to Abhimanyoo Ram Vs. State of U.P. (2008) 17 SCC 73, Ramesh
Chandra Sankla Vs. Vikram Cement (2018) 14 SCC 58 and Ruchika
Cables Pvt. Ltd. Vs. The Secretary (Labour) MANU/DE/1033/2010.
9. No answer is forthcoming to, how in the event of the OA being
ultimately dismissed, the presence of the petitioner on the rolls of the
respondents Indian Navy, after the date of the service of the order of
discharge will be explained. Supreme Court, in State of Haryana Vs.
Suman Dutta (2000) 10 SCC 311, has observed that by an interim order, if
an employee is allowed to continue in service and then ultimately the writ
petition is dismissed, then it would tantamount to usurpation of public
office without any right to the same. Similarly, in State of U.P. Vs.
Sandeep Kumar Balmiki (2009) 17 SCC 755, it was held that by an interim
order, termination of employment could not be stayed as giving such a relief
amounted to allowing the writ petition itself. In Bhankra Byas Managing
Board Vs. Suresh (2009) 7 SCC 515 also, while setting aside an interim
order of the High Court granting compassionate employment, the Supreme
Court observed that the High Court was not justified in granting such
interim order at the admission stage and although a decree had been passed
against the appellant directing the appellant to make compassionate
appointment, but at the interim stage of the second appeal, the appellant
could not be directed to appoint the respondent, on the statement of the
respondent that he was ready to forego the past benefit if he was taken in
service. Reference may also be made to the dicta of this Court in, Air India
Ltd. Vs. Aditya Beri MANU/DE/2781/2012 (DB) and The Co-operative
Store Ltd., Superbazar Vs. Superbazar Karamchari Hitesh Sangathan
MANU/DE/5089/2012 (DB).
10. Notice may also be taken of the observations of the Supreme Court in
U.P. Junior Doctors' Action Committee Vs. B. Sheetal Nandwani 1992
Supp (1) SCC 680, though in different facts. It was held to be a well-
known rule of practice and procedure, that at interlocutory stage, a relief
which was asked for and was available at the disposal of the matter, is not
granted. The writ petitioners in the said case wanted admission into post-
graduate course as the main relief in the writ petition. Supreme Court
observed, that unless there was any special reason to be indicated in clear
terms in an interlocutory order, as a rule no provisional admission should be
granted and more so into technical courses. It was further held that grant of
such a relief at the threshold creates a lot of difficulties and in a case where
the petitioner ultimately loses in a case of this type, a very embarrassing
situation crops up if he has by then read for two to three years, there is a
claim of equity, on the plea that one cannot reverse the course of time.
11. We also find merit in the reason given by the AFT, of the seriousness
of the ground on which the petitioner has been discharged, not entitling the
petitioner to any interim relief. Supreme Court, in U.P. Rajya Krishi
Utpadan Mandi Parishad Vs. Sanjiv Rajan 1993 Supp. (3) SSC 483 held
that when the charge is of moral turpitude, till the Court, after examining
the entire records finds that the conclusion reached by the disciplinary
authority is wrong, no stay of termination of employment should be
granted.
12. No perversity is found in the impugned order of the AFT.
Dismissed.
RAJIV SAHAI ENDLAW, J
AMIT BANSAL, J
MAY 25, 2021
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