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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

PETITION FOR SPECIAL LEAVE (CIVIL) NO. 6393 OF 2012

VIJAY KUMAR AGARWAL .....APPELLANT(S) VERSUS

UNION OF INDIA AND ANR. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

Though,  the  issue  raised  in  this  Special  Leave  Petition  is  very

short and in a narrow campus, it has a chequered history.   The question

is only as to whether the petitioner is entitled to full salary from June 05,

1996.   However,  the  background  facts  under  which  the  issues  have

cropped up for discussion need to be recapitulated.   

 2) Eschewing  the  unnecessary  details,  we  confine  the  narration  to  only

those facts which are absolutely  essential  and relevant to decide the

controversy at hand.

3) The petitioner herein, after emerging as a successful candidate in the

Civil  Services Examination,  was selected  in  the Indian Administrative

Service ('IAS') and was allocated to Maharashtra cadre, where he joined

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on September 01, 1982.  There were certain jerks and upheavals in the

service career of the petitioner from the very beginning which need not

be mentioned.  Suffice it to state that the petitioner was denied senior

time scale and he challenged the same by filing writ petition in the High

Court of Bombay claiming that he was entitled to the senior time scale

with  effect  from  January  01,  1986.  With  the  constitution  of  Central

Administrative  Tribunal  (hereinafter  referred  to  as  the  'Tribunal'),  on

passing of the Administrative Tribunal Act,  1986, this writ petition was

transferred to the Tribunal bearing Transfer Application No. 283 of 1986

and the Tribunal ultimately dismissed the aforesaid transfer application

of the petitioner on January 19, 1987. The petitioner assailed the order

of  the Tribunal  by filing Special  Leave Petition in  this  Court  in  which

leave was granted and the case was registered as Civil Appeal No. 3446

of 1987.

4) During the pendency of the Civil Appeal, the petitioner was suspended

vide orders dated May 26, 1988 and a charge sheet was served upon

him  for  major  penalty  proceedings  on  July  06,  1988.  This  order  of

suspension as well as validity of the charge-sheet was challenged by the

petitioner by filing Writ Petition (C) No. 1037 of 1988 under Article 32 of

the Constitution, in this Court. In this writ petition, interim orders dated

November  02,  1988  were  passed  staying  the  proceedings  in  the

charge-sheet which was served upon the petitioner on July 06, 1988.

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Significantly, the prayer of the petitioner in the writ petition for staying the

order  of  suspension  was  not  allowed  and,  therefore,  the  petitioner

remained under suspension since May 26,  1988.   

5) Civil  Appeal  No.  3464  of  1987,  against  the  non-denial  of  the  senior

time-scale to the petitioner, was also allowed by this Court vide order

dated August 30, 1988, i.e., two months before the stay of charge-sheet

was granted. The petitioner, thus, became entitled to be placed in the

senior time-scale.

6) In  the  meantime,  since  direction  of  this  Court  to  grant  him  senior

time-scale was to be complied with by the Government, the Collector,

Kolhapur sent a bill to be signed by the petitioner so that subsistence

allowance  could  be  paid.   However,   notwithstanding  various

communications written to him in this behalf he did not sign the same nor

submitted non-employment certificate.  On the other hand, the petitioner

resorted to multiple litigation before the Tribunal and also in this Court

directly.  It may not be necessary to give the details of these proceedings

except  to  mention  that  virtually  all  these  proceedings  were  decided

against the petitioner, with the exception of one case where the Tribunal

granted  him  relief  directing  the  Authorities  to  issue  'No  Objection

Certificate' to enable him to obtain a passport for going abroad.

7) We would, however, like to mention that in a Criminal Appeal No. 605 of

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1991, this Court passed the orders dated October 31, 1991 requesting

the  Attorney  General  to  look  into  his  representation  as  he  wanted

change of allocation of Maharashtra cadre to any other State.  This was

done with a view to put an end to various cases which were initiated by

the petitioner and were found to be unnecessary or without any merit.

Be that as it may, in deference to the wishes of this Court expressed in

the  aforesaid  order,  the  Central  Government  informed  the  Court  on

December 16, 1993 that State of Punjab was willing to take the petitioner

on deputation for one year.  In order to enable the petitioner to join there,

the suspension of the petitioner was also withdrawn vide orders dated

May 13, 1996. However, in the application submitted by the petitioner to

the Central Government for his being transferred on deputation to the

State of Punjab he put certain conditions which were not acceptable to

the State of Maharashtra.  Vide another order dated June 07, 1996, he

was  directed  to  take  charge  as  Deputy  Secretary,  Social  Welfare,

Cultural Affairs and Sports Department, Government of Maharashtra to

finalize the procedural formalities required to be completed for the State

of Punjab to take him on deputation. The petitioner, however, did not join

the  said  posting  because  of  which  his  joining  State  of  Punjab  on

deputation also could not materialize.

8) On the other hand, as the petitioner had not joined the services in spite

of  revocation  of  suspension  on  May 13,  1996,  another  charge-sheet

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dated May 04, 1998 was issued to the petitioner on the ground that he

remained  unauthorisedly  absent  from  duty  and  had  also  left  the

headquarters  without  permission  of  the  Competent  Authority.  The

petitioner, promptly, filed contempt petition in Civil  Appeal No. 3464 of

1987 alleging that service of such a charge-sheet amounted to contempt

of court. This contempt petition was, however, dismissed by this Court.  

9) In the meantime, third charge-sheet dated October 05, 1998 was also

served upon him.    

10) Finally, the request of the petitioner to send him on deputation to the

State of Punjab was also turned down by the Government of India on

February  27,  1997,  going  by  the  aforesaid  subsequent  events  which

have taken place.  

11) The petitioner once again filed another contempt petition in Civil Appeal

No.  3464 of  1987 and raised many other  grievances therein  as well

including non-grant of subsistence allowance.  The State of Maharashtra

informed the Court that his suspension had been revoked but he was not

joining the duties.  It  was also pointed out  that  subsistence allowance

could not be paid as he had not signed the bills sent to him. Orders were

passed on September 19, 2001 by the Court for payment of complete

salary to the petitioner from May 01, 1988 to May 13, 1996. The amount

was  calculated  and  salary  for  this  period,  which  was  in  the  sum of

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6,82,290/-,  was tendered to the petitioner in the Court,  however, he₹

refused to accept the same on the ground that this salary was calculated

as per the senior time-scale but in the meantime persons junior to him

had been promoted and,  therefore,  he should be given the salary of

promotional post. The Court, taking note of the obstinate stand of the

petitioner,  dismissed  the  contempt  petition  as  well  as  all  pending

applications of October 18, 2001.  In the process, this Court observed

that the issue of payment of salary at higher scale could not be decided

in the contempt petition.  Pertinently, the petitioner received the amount

of 6,82,290/- later on.₹

12) There were yet  various writ  petitions,  contempt  petitions and criminal

appeals filed by the petitioner in this Court, all of which were dismissed

in  default  on  October  07,  2002.  The  order  dated  October  07,  2002

passed in  Writ  Petition  (C)  No.  1037 of  1988 records :  “Despite  the

service of notice of hearing to the petitioner for remaining present the

petitioner  has  not  remained  present.  In  spite  of  that  petitioner  who

appears in person has filed an application for transfer of the matter to

another Bench. In our view, enough indulgence is shown to the petitioner

and he has misused the same.  The petition therefore does not require

any further consideration. The writ petitions, contempt petitions, criminal

appeal  and  the  I.A.  are  dismissed  for  default.  Interim  order  stands

vacated.”    Thereafter,  on  an  application  filed,  the  writ  petition  was

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restored. Rather than arguing the writ petition, the petitioner filed another

writ petition No. 75 of 2003 claiming multifarious reliefs pertaining to his

service which was dismissed on June 16, 2003. Thereafter, vide order

dated December 09, 2005, Writ Petition (C) No. 1037 of 1988 was also

dismissed with a direction that the petitioner may avail the alternative

remedy of approaching the Central Administrative Tribunal.  

13) After  the  aforesaid  order,  the  petitioner  filed  O.A.  No.  1714  of  2003

before the Central Administrative Tribunal, Principal Bench, New Delhi.

He challenged order dated May 13, 1996, revoking his suspension and

prayed  that  it  be  set  aside  on  the  ground  that  composite  order  of

revocation of suspension should have been passed which should have

included pay and allowances that are to be paid during the period of

suspension ending with reinstatement and also whether or not the period

of suspension is to be treated as period on duty.  In this O.A., he also

justified his non-joining the duty in terms of orders dated June 07, 1996

on  the  ground  that  the  post  of  Deputy  Secretary  was  below  his

entitlement  as  the  persons  immediately  junior  to  him  had  earned  a

promotion. The petitioner, thus, also challenged his posting as Deputy

Secretary, he also questioned the validity of two charge-sheets dated

May  04,  1998  and  October  05,  1998  and  sought  quashing  thereof

including quashing of the order dated September 18, 2002 whereby an

enquiry officer was appointed. He also challenged orders dated March

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27, 2003 wherein he was intimated that salary could not be paid to him

as he was not reporting for duty.  

14) This OA was decided by the Tribunal on November 18, 2003 quashing

the orders dated May 13, 1996. The said order was quashed on the

ground  that  a  composite  order  contemplated  by  Rule  5B  had  to  be

passed with respect to the manner in which suspension period was to be

reckoned or the entitlement of  payment of salary.  At  the same time,

liberty was granted to the State of Maharashtra to pass a fresh order on

issue of revocation of suspension. However, salary for the period after

June, 1996 was declined with the observation that if the petitioner joins

service as Deputy Secretary, the salary shall be paid.  No other relief

was granted to the petitioner on the ground that in one OA, the petitioner

had joined multifarious causes. It was observed that qua other reliefs,

the petitioner was free to take resort to necessary action.  The petitioner

filed review application in the said OA on the ground that once the order

of revocation of suspension was quashed, the Tribunal could not have

granted permission to the State Government to pass a fresh order.  This

application for review was dismissed. He filed one more application for

review  which  was  also  dismissed.   Challenging  the  orders  of  the

Tribunal, the petitioner filed Writ Petition (Civil) No. 916 of 2007 in the

High Court of Delhi.

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15) The petitioner thereafter filed another OA but confined his relief insofar

as it related to charge-sheet dated May 04, 1998 and penalty imposed

on him vide orders dated April 02, 2007.  This OA is still pending before

the Tribunal.    

16) After the Tribunal had decided OA No. 1714 of 2003 and permitted the

Department  to  pass  an  order  pertaining  to  the  period  the  petitioner

remained under suspension, the Government passed the orders dated

July 29, 2004 declining to pay full pay and allowances to the petitioner

for the period May 26, 1988 to May 12, 1996, viz.,  the period during

which he remained under suspension. This order was challenged by the

petitioner by filing OA No. 2507 of 2005.  In this OA, he also filed six

miscellaneous applications seeking various other reliefs.  The said OA

No. 2507 of 2005 as well as miscellaneous applications were disposed

of by the Tribunal holding that order dated July 29, 2004 was repugnant

to the directions issued by the Supreme Court to pay full salary for the

aforesaid period.  At the same time, the Tribunal also noted that in any

case the petitioner had already received full salary for this period, that is,

some of 6,82,290/-.₹

17) The petitioner had filed three more OAs, namely, OA No. 2947 of 2003,

OA No. 3092 of 2003 and OA No. 3141 of 2003 which were disposed of

by the Tribunal by common order dated May 18, 2004. In OA No. 2947 of

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2003, the petitioner sought quashing of inquiry report dated November

01, 2003 pertaining to the second charge-sheet in which he was charged

with the misconduct of unauthorisedly remaining absent from duty.   

18) In O.A. No. 3092/2003, the petitioner had challenged third charge-sheet

dated October 05, 1998 wherein the charge was that he had not filed

annual returns. Vide O.A. No. 3141 of 2003, the petitioner prayed for

quashing of orders dated June 07, 1996 vide which he was directed to

report for duty as Deputy Secretary in the Social Welfare Department.

Vide orders dated May 18, 2004, all these three OAs were dismissed by

the Tribunal. Challenging the said order, the petitioner filed writ petition

no. 2768 of 2007 in the High Court of Delhi.  

19) Few more  OAs  were  also  filed  by  the  petitioner  in  CAT which  were

dismissed by the Tribunal.  Against those orders, writ petitions were also

preferred.   These  writ  petitions  were  also  dismissed  by  the  same

common judgment.  However, for the purpose of present special leave

petition, it is necessary to refer to those writ petitions.    

20) With this background, we revert back to writ petition Nos.916/2007 and

2768/2007.  As far as writ petition No.916/2007 is concerned, let it be

recapitulated that it arises out of OA No.1714/2003 wherein the petitioner

had challenged the order dated May 13, 1996 by which his suspension

was revoked.  This OA was allowed by the Tribunal on the ground that it

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was necessary for the Government to pass composite order which was

the requirement of Rule 5B of the Rules and since the Government had

not indicated in the order as to how the suspension period would be

reckoned and the decision for payment of salary during the suspension

period  was  also  not  taken,  the  order  was  bad  in  law.   The  liberty,

however,  was  granted  to  the  State  Government  to  pass  fresh  order

regarding salary of suspension period.  This part of the order granting

liberty  to  the  State  Government  was  sought  to  be  reviewed  by  the

petitioner by filing review petition which was dismissed and this dismissal

was challenged by the petitioner in the said writ petition No.916/2007.

21) The High Court while dealing with this writ petition took the view that in

case order revoking the suspension did not  deal  with the suspension

period or payment of the salary for suspension period, order revoking

suspension cannot be treated as void or non est. The only effect thereof

would be that the competent authority is precluded from exercising its

power under FR 54B and the legal position was that if while revoking the

suspension  or  within  a  reasonable  time  thereof  no  order  is  passed

pertaining  to  pay  and  allowances  for  the  period  of  suspension,  the

authority  is  denuded  from  passing  such  an  order.   The  necessary

consequences thereof would be that the Government servant, in such a

situation,  is  entitled  to  full  salary  for  the  period  he  remained  under

suspension.  Therefore, High Court held that the petitioner was entitled

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to full pay and allowances for the period he remained under suspension

and in the present case, the Supreme Court  had already passed the

order for grant of full salary for the period May 01, 1988 to May 13, 1996

and this amount had also been received by the petitioner though initially

he had refused to accept the same when it was tendered to him in the

Court.   Moreover,  the  State  of  Maharashtra  had  not  revoked  the

suspension on its own but  to  facilitate petitioner's  inter-cadre transfer

from Maharashtra cadre to Punjab cadre and,  therefore,  the order  of

revocation of  suspension was not in exercise of  power to revoke the

suspension on the ground that the petitioner was no longer required to

kept under suspension and these peculiar circumstances were not kept

in mind by the Tribunal.

22) According to us, the aforesaid approach of the High Court, under the

given circumstances, is without blemish.  The High Court has relied upon

certain  judgments  of  this  Court  including  the  decision  in  the case of

Basant Ram Jaiswal v. Area Manager (North) MTNL Bombay1 which

held that in such a situation, the competent authority cannot exercise the

power under FR 54B.

23) When the order of suspension is revoked and the suspended employee

is asked to join the duty, he is required to do so.  How the period of

1 1996 (3) Supp. LLJ 855

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suspension is to be treated is another aspect.   At  the most,  such an

employee would be entitled to full salary during the suspension period if

no order is passed as to how the suspension period would be governed.

That would not mean that order revoking suspension itself becomes bad

in law.  It is pertinent to mention that even the Tribunal did not say that

order revoking suspension was bad in law (In fact that part of the order

was favourable to the petitioner).  What it held was that in terms of Rule

5(b),  the  Government  should  have  also  decided  how  the  period  of

suspension is to be treated and, therefore, directed the Government to

pass necessary order to that effect.   

24) An  employee  who  is  suspended  generally  feels  aggrieved  by  such

suspension  order  and  would  like  his  suspension  to  be  revoked.

Curiously, in the present case, when such an order was passed in the

case  of  the  petitioner,  instead  of  joining  the  duties,  he  started

questioning  the  validity  of  the  order  of  revocation  on  hyper-technical

grounds claiming that he would not join the duties unless his period of

suspension is also dealt with.  This speaks volumes about the conduct of

the petitioner depicting that he was not interested in joining the duties.

Had the petitioner joined the duties, it  would have even facilitated his

change of cadre as well by allowing him Punjab cadre.  He did not allow

it to happen and he himself is responsible for this state of affair.

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25) Otherwise  also,  in  any  case,  we  feel  that  once  the  entire  salary  for

suspension period is received by the petitioner, there was no question of

making any grievance in respect of order revoking suspension.   

26) Insofar  as  writ  petition  No.2768/2007  is  concerned,  this  pertain  to

challenge to the second as well as third chargesheets and orders dated

June 07, 1996 by which he was directed to report for duty as Deputy

Secretary in the Social Welfare Department.  The High Court dismissed

this writ petition with the reason that the petitioner had made repeated

attempts and re-agitated this issue time and again.  We do not find any

fault in dismissing this writ petition as well.

27) With this, we come to the real issue that is agitated by the petitioner and,

in fact, no grievance was made by the petitioner insofar as dismissal of

the aforesaid writ petitions are concerned.  The petitioner is claiming pay

and allowances from June 05, 1996 onwards till date.  This was also one

of the prayers in OA No.1714/2003 before the Tribunal.  The Tribunal

had, however, rejected this prayer in the following manner:

“26.  As regards claim of the applicant for grant of pay and allowances from 5.6.1996 is concerned, as the applicant, without express permission of the competent authority, has failed to bring on record any credible material showing that he  has  joined  the  post  of  Deputy  Secretary  in  Social Welfare Department, having not worked on the post by the applicant, at present he is not entitled for the relief of grant of salary for the aforesaid period.  However, the aforesaid period shall  remain subject to pending finalisation of the disciplinary proceedings and on culmination, the law shall take  its  own course.   However,  we observe  that  in  the

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event, the applicant joins the post of Deputy Secretary in the  Social  Welfare  Department,  respondents  shall  start paying him the salary as per rules.  We, at present, are not inclined to allow the prayer of  the applicant  for grant of salary for the period from 1996 till date.”

28) Significantly, the petitioner did not challenge this part of the order. As

pointed out above, though he filed two review petitions seeking review of

that portion of the order by which Tribunal had given liberty to the State

Government to pass fresh order of suspension but did not even ask for

review of the order denying him salary for the period after June 05, 1996.

The order of the Tribunal was not even challenged before the High Court

and, thus, it  became final.  That apart, the petitioner never joined the

duties and, therefore, he cannot claim salary on the principle of 'no work

no pay' as well.   

29) We may point out that the claim for salary for the period after June 05,

1996 till date is on the ground that the order revoking the suspension

itself was illegal and, therefore, he was not supposed to join the duty.  It

is stated at the cost of repetition that the petitioner could have claimed

salary for the period of suspension but that was no ground not to join the

duties  once the suspension order  was revoked.   The excuse for  not

joining the duties has also been negatived.  It may be recalled in this

behalf that he was asked to join the duties as  Deputy Secretary and his

plea was that he was asked to join inferior post.  His OA in this behalf

was also dismissed.   

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30) As a result, present special leave petition is dismissed in limine.

.............................................J. (A.K. SIKRI)

.............................................J. (ROHINTON FALI NARIMAN)

NEW DELHI; OCTOBER 06, 2015

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