Interim relief against discharge orders in serious misconduct cases cannot be granted to avoid potential irreversibility and usurpation of public office.

JUDGMENT

[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 pe