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REPORTABLE        

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NOs.     7939-7940      OF     2012   (Arising out of SLP (C) Nos. 7597-7598 of 2011)

Ex-Hav. Satbir Singh                 .... Appellant (s)

Versus

The Chief of the Army Staff,  New Delhi & Anr.                              .... Respondent(s)

J     U     D     G     M     E     N     T      

P.     Sathasivam,     J.   

1) Delay condoned.

2) Leave granted.

3) These appeals are filed against the final judgment and order dated  

02.05.2008 in Writ Petition (C) No. 3874 of 1995 and order dated  

20.02.2009 in Review Petition No. 244 of 2008 passed by the Division  

Bench of the High Court of Delhi insofar as rejection of salary and  

terminal benefits for the “intervening period” during which the appellant  

remained out of service.   

4) Brief facts:

(a) The appellant herein was enrolled in the Army on 31.08.1982.  In  

September, 1985, he was promoted to the rank of Lance Naik and in  

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April, 1986, he was promoted to the rank of Naik.  On 14.02.1990, he  

got further promotion to the rank of Havildar and with the said  

promotion, his tenure of service was extended to 24 years and his date  

of superannuation also got extended to 31.08.2006.    

(b) The Army Headquarters, Adjutant General Branch issued a letter  

dated 28.12.1988, laying down the procedure for removal of undesirable  

and inefficient candidates by way of discharge/dismissal.  Pursuant to  

the same, a show-cause notice dated 16.03.1995 was served upon the  

appellant as the particulars in the service record reveal 4 ‘Red Ink  

Entries’ in the service of 12 ½ (twelve and a half) years.  On 21.03.1995,  

the appellant submitted his reply and on 01.04.1995, the appellant was  

discharged from service.  

(c) Challenging the same, the appellant filed petition being Writ  

Petition (C) No. 3874 of 1995 before the High Court of Delhi and prayed  

for reinstatement of service with all consequential benefits.  By  

impugned judgment dated 02.05.2008, the High Court set aside the  

order of discharge and directed the respondents to reinstate the  

appellant in service with no benefit of salary and other allowances for  

the “intervening period.”   

(d) Feeling aggrieved by the said impugned judgment, the appellant  

filed review petition being Review Petition No. 244 of 2008.   By  

impugned order dated 20.02.2009, the review petition was also  

dismissed.

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(e) Feeling aggrieved by impugned judgment dated 02.05.2008 in W.P.

(C) No. 3874 of 1995 and order dated 20.02.2009 in R.P.(C) No. 244 of  

2008, the appellant has filed these appeals by way of special leave.

5) Heard Mr. C.M. Khanna, learned counsel for the appellant and Mr.  

A.S. Chandhiok, learned Additional Solicitor General for the  

respondents.

6) On 07.03.2011, this Court issued notice calling upon the  

respondents to show cause as to why “the intervening period should not  

be counted for the purpose of terminal benefits”.  

7) Since the issue in this appeal is very limited, as mentioned above,  

in view of narration of facts in the earlier part of our order, there is no  

need to traverse further factual details.  

8) We have to see whether the High Court having arrived at a  

conclusion that the discharge/termination of the appellant from service  

is unsustainable and after setting aside the termination order was  

justified in depriving the appellant from any salary for the intervening  

period as well as for the purpose of terminal benefits, the intervening  

period during which the appellant remained out of job shall not be  

counted.  Since we have issued notice only for the purpose of terminal  

benefits, there is no need to go into the entitlement of salary during the  

intervening period.  

9) It is not in dispute that in the concluding paragraph, the Division  

Bench of the High Court in categorical terms set aside the order of  

termination.  The relevant conclusion reads as under:  

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“Fact remains that he was discharged/terminated from service on the  basis of show cause notice.  This action is found to be unsustainable.  Therefore, we have no hesitation in setting aside the termination order.”

Having found that the discharge/termination is legally unsustainable,  

we are of the view that the incumbent, namely, the appellant, ought to  

have been provided relief at least to the extent of counting the  

intervening period for the purpose of terminal benefits.  It is true that  

during the intervening period, the appellant, admittedly, did not work,  

in that event, the Division Bench was justified in disallowing the salary  

for the said period.  However, for the terminal benefits, in view of the  

categorical conclusion of the High Court that discharge/termination is  

bad, ought to have issued a direction for counting the intervening period  

at least for the purpose of terminal benefits.  According to the Division  

Bench, the conduct of the appellant, namely, securing 4 Red Ink Entries  

in the service record is the reason for not considering the intervening  

period even for the purpose of terminal benefits.  We hold that the said  

reasoning adopted by the Division Bench of the High Court cannot be  

sustained in view of its own authoritative conclusion in setting aside the  

discharge/termination order.  

10) In the light of the conclusion that the termination is bad and the  

direction to deprive the appellant the benefit of intervening period for  

the purpose of terminal benefits is punitive imposing break in service as  

the period involved amounts to dies non and the said direction was  

based without considering any related issue and decided on merits by  

the High Court, hence, the same is not sustainable and liable to be set  

aside.  

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11) In the light of the above discussion, while upholding the order of  

the Division Bench setting aside the termination order, we hold that for  

the purpose of terminal benefits, the “intervening period” for which the  

appellant remained out of job shall be counted.  In view of the same,  

respondent Nos. 1 and 2 are directed to pass appropriate orders fixing  

terminal benefits within a period of two months from the date of receipt  

of copy of this judgment and intimate the same to the appellant.   

12) The appeals are allowed to the extent mentioned above.

...…………….…………………………J.            (P. SATHASIVAM)                                  

.…....…………………………………J.    (RANJAN GOGOI)                                  

NEW DELHI; NOVEMBER 09, 2012.

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