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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5372 OF 2012 (Arising out of SLP (C) No. 23219 of 2010)

R.S. Misra  … Appellant

Versus

Union of India and others  … Respondents

J U D G M E N T

G. S. Singhvi, J.

1. This  appeal  is  directed  against  order  dated  5.2.2010  passed  by  the  

Division  Bench  of  the  Delhi  High  Court  whereby  the  civil  miscellaneous  

application filed by the appellant in Writ Petition No.3902/2008 for issue of a  

direction to the respondents to pay him salary for the period between 5.11.2003  

and 24.1.2006 was dismissed.

2. While he was holding the post of Post Graduate Teacher (Chemistry) in  

Kendriya Vidyalaya Sangathan (for short, ‘KVS’), the appellant’s services were  

terminated by the Commissioner, KVS under Article 81 (b) of the Education

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Code.  CWP No.3354 of 1994 filed by the appellant was allowed by the learned  

Single  Judge  of  the  Delhi  High  Court  vide  order  dated  19.9.1994  and  the  

termination of his service was quashed.  The operative portion of that order  

reads as under:

“In the result  I  allow the writ  petition, quash the  order  of  dismissal  dated  February  11,  1988  and  direct  that  the  petitioner  shall  be  reinstated  in  service  forthwith  with  all  consequential  benefits  from the date  of  his  dismissal.  Needless  to say it  would  be  open  to  the  respondents,  if  so  advised,  to  proceed  against  the  petitioner  afresh  as  per  the Rules of the Education Code.”

3. LPA  No.116/1994  filed  by  the  respondents  was  dismissed  by  the  

Division Bench of the High Court.  Thereafter,  the Commissioner, KVS passed  

order dated 3.10.2000 for reinstatement of the appellant with a stipulation that  

the period during which he had not worked, i.e., from 11.2.1988 to the date of  

joining the duty shall be treated as ‘dies-non’.

4. Since  the  appellant  was  not  given  consequential  benefits,  he  filed  

Contempt Petition No. 550/2000 which was disposed of by the learned Single  

Judge of the High Court vide order dated 25.1.2001, the relevant portion of  

which is reproduced below:  

“In  this case judgment of the learned Single Judge has  merged  in  the  judgment  passed  in  LPA.  There  is  no  dispute  about  one  aspect  that  the  petitioner  has  been  appointed vide annexure-2 vide order 3.10.2000 at page  33. In case there is non compliance of order of Division  Bench then petitioner is at liberty to file a fresh petition.  

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With the above observations, the application and petition  stand disposed of.”

5. The appellant sent legal notice dated 20.2.2001 through his advocate for  

grant  of  consequential  benefits  but  the  same  was  rejected  vide  letter  dated  

4.4.2001.  Thereupon, he filed Contempt  Petition No.  151/2001.  The learned  

Single Judge noted that the appellant had already been reinstated and a sum of  

Rs.11,48,625/- were paid to him by way of arrears of pay and allowances and  

directed  the  non-petitioner  in  the  contempt  petition  to  consider  his  case  for  

grant of such benefits to which he may be found entitled. The learned Single  

Judge also made it clear that if the appellant feels aggrieved by the decision of  

the competent authority then he shall be free to avail appropriate legal remedy.  

6. In  the  meanwhile,  the  appellant  was  served  with  memorandum dated  

11.3.2002 and was called upon to explain as to why disciplinary action should  

not  be taken against  him under Article  81(b) of  the Education Code on six  

allegations,  three  of  which  related  to  misbehaviour  with  girl  students.  The  

Enquiry Officer/Summary Enquiry Committee submitted report dated 9.4.2002  

with the finding that allegations leveled against the appellant have been proved.  

After considering the Enquiry Report, the Commissioner issued memorandum  

dated  31.3.2003  proposing  to  pass  final  order  under  Article  81(b)  of  the  

Education Code and gave opportunity to the appellant to make representation in  

the  context  of  the  findings  recorded  against  him.  The  appellant  submitted  

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detailed representation dated 15.4.2003 to contest the findings recorded in the  

Enquiry Report. After considering the same, the Commissioner, KVS passed  

order dated 5.11.2003 and terminated the appellant’s service with immediate  

effect.  

7. The  appellant  challenged  memorandum  dated  31.3.2003  by  filing  an  

application under Section 19 of the Administrative Tribunals Act, which was  

registered as OA No.2008/2003. He also filed a miscellaneous application for  

stay  of  order  dated  5.11.2003  passed  by  the  Commissioner,  KVS  for  

termination of his service.  By an order dated 29.12.2003, the Principal Bench  

of  the Central  Administrative Tribunal  (for  short,  ‘the  Tribunal’)  stayed the  

operation of order dated 5.11.2003. The Commissioner, KVS challenged that  

order in WP(C) No. 3141/2004, which was disposed of by the Division Bench  

of the High Court vide order dated 16.8.2004, the substantive portion of which  

reads as under:

“Petition is disposed of by providing that the termination  order  passed  against  the  petitioner  shall  remain  in  abeyance for  two months from this  period.  Tribunal  is  directed  to  dispose  of  the  OA  of  the  respondent  expeditiously.

During this period, respondent will be deemed to be in  service  and  petitioner  shall  pay  50%  of  his  salaries  subject to the outcome of the OA. Respondent will not  however enter the school premises for discharge of his  duties  during  this  period  in  view  of  the  nature  of  allegations levelled against him. This will not, however  be any expression of opinion on the merit of the OA or  the nature of charges against the respondent.”

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8. OA No.2008/2003 was finally disposed of  by the Tribunal  vide order  

dated 15.12.2005 and a direction was issued to the Commissioner, KVS to pass  

fresh  order  after  considering  the  representation  made  by  the  appellant  and  

keeping in view his forthcoming superannuation with effect from 31.12.2005.  

Simultaneously, it was directed that the respondents shall continue to pay 50%  

salary till the decision was taken in the matter.

9. In  view  of  the  aforesaid  order  of  the  Tribunal,  the  Commissioner  

considered the appellant’s representation and passed order dated 20/24.01.2006  

whereby  he  again  terminated  the  appellant’s  service  with  immediate  effect  

under Article 81(b) of the Education Code and directed that the amount payable  

to him in terms of the Tribunal’s order and 3 months pay and allowances in lieu  

of notice be paid to him immediately. The operative portion of that order reads  

as under:

“Considering  the  gravity  of  the  proven  immoral  behaviour towards girl  students,  I  hereby terminate the  services  of  Shri  R.S.  Misra  with  immediate  effect  pursuant to the provisions of Article 81(b) of Education  Code  for  Kendriya  Vidyalaya.  This  order  is  issued  in  compliance to the Orders dated 15.12.2005 of Hon’ble  CAT,  Principal  Bench,  New  Delhi  in  Original  Application  No.2008  of  2003.  The  amount  payable  to  Sh.R.S. Misra in terms of Hon’ble CAT’s order as well  as  three  month’s  pay and allowances  in  lieu  of  notice  period  also  in  terms  of  Article  81(b)  be  paid  to  him  immediately.”

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10. The appeal filed by the appellant against the order of the Commissioner  

was dismissed by the Vice-Chairman, KVS vide order dated 18/21.4.2006.  

11. The appellant challenged the order of termination as well as the appellate  

order in OA No. 996/2006, which was dismissed by the Tribunal by observing  

that the exercise of power by the Chairman, KVS under Article 81(b) did not  

suffer  from  any  legal  error.  The  writ  petition  filed  by  the  appellant  was  

dismissed by the Division Bench of the Delhi High Court. The same was the  

fate  of  review  petition  filed  by  him  before  the  High  Court  and  SLP(C)  

Nos.8219-8220/2010 filed before this Court.

12. Having failed to convince the Tribunal, the High Court and this Court to  

quash the termination of  his  service,  the appellant  filed Civil  Miscellaneous  

Application No. 14140/2009 in Writ Petition No.3902/2008 and prayed that a  

direction be issued to  the respondents  to  pay him full  salary  for  the period  

between 5.11.2003 and 24.1.2006.

13. The Division Bench of the High Court referred to the earlier order passed  

in WP(C) No. 3141/2004 whereby direction was given to the respondents to pay  

50% of salary to the appellant subject to the outcome of OA No.2008/2003,  

order dated 15.12.2005 passed by the Tribunal in OA No.2008/2003 and held  

that in view of the directions contained in those orders, the appellant  is  not  

entitled to more than 50% salary.  

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14. We have heard the appellant, who has appeared in person and Shri S.  

Rajappa, learned counsel for the respondents and carefully perused the record.  

In our opinion, the impugned order is liable to be set aside because the view  

taken by the High Court on the appellant’s entitlement to get full salary for the  

period  between  5.11.2003  and  31.12.2005  is  ex-facie  erroneous.  Once  the  

Tribunal  allowed OA No.2008/2003 and directed  the Commissioner  to  pass  

fresh order  under  Article 81(b)  of  the Education Code after  considering the  

representation  submitted  by  the  appellant,  the  earlier  order  terminating  his  

service will  be deemed to have become redundant and the appellant will  be  

deemed  to  be  continuing  in  service  for  all  purposes.  This  conclusion  is  

buttressed by the fact that vide order dated 24.1.2006, the Commissioner passed  

fresh  order  under  Article  81(b)  of  the  Education  Code  and  terminated  the  

appellant’s service with immediate effect. The order passed by the High Court  

in WP(C) No. 3141/2004 was a sort of interim arrangement made to dilute the  

impact of the stay order passed by the Tribunal on 29.12.2003.  Therefore, the  

same  could  not  be  relied  upon  by  the  respondents  and  the  High  Court  for  

denying the  appellant  of  his  right  to  get  full  salary  between 5.11.2003 and  

31.12.2005.  

15. It is neither the pleaded case of the respondents nor it was argued before  

us  that  during  the  pendency  of  the  enquiry,  the  appellant  was  kept  under  

suspension  and he was paid subsistence  allowance.  This  being the position,  

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there could be no justification to deny full salary to the appellant for the period  

between 5.11.2003 and 31.12.2005.  

16. In the result, the appeal is allowed, the impugned order is set aside and  

the respondents are directed to pay full salary and allowances to the appellant  

for the period between 5.11.2003 and 31.12.2005. The needful be done within a  

period of two months from today by getting prepared a demand draft in the  

appellant’s  name,  which  shall  be  delivered  at  his  residential  address  on  or  

before the end of two months period.

…..…...……..….………………….…J.         [G.S. Singhvi]

….…………..….………………….…J.     [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi, August 22, 2012.

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