W.P.(C) 5503/2021

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 25^th May, 2021

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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 17^th 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 5^th

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

2021:DHC:1692-DB

W.P.(C) 5503/2021

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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.

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W.P.(C) 5503/2021

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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