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CASE NO.: Appeal (civil)  1813 of 2003

PETITIONER: Union of India and Ors.                                  

RESPONDENT: Narender Singh                                                   

DATE OF JUDGMENT: 29/07/2005

BENCH: ARIJIT PASAYAT & H. K. SEMA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       The union of India and the Additional Commissioner of  Police (OPS), New Delhi have questioned correctness of the  order passed by a Division Bench of the Delhi High Court  dismissing writ petition filed by the present appellants as  infructuous.   

The controversy lies within a very narrow compass and  is as under:    

Respondent (herein referred to as the ’employee’) was  proceeded against departmentally on the charge that on  27/28.2.1996 while posted in the vigilance cell at the  Indira Gandhi International Airport he accepted illegal  gratification for getting two Afghan nationals cleared  through Customs without paying the Customs duty payable.  He  was ultimately dismissed by the disciplinary authority by  order dated 7.8.1997. The appeal preferred by him was also  rejected by the appellate authority by order dated  20.11.1997. Challenging these orders the respondent-employee  filed Original Application before the Central Administrative  Tribunal, Principal Bench, New Delhi (in short the  ’Tribunal’). By order dated 21.11.2000, the Tribunal quashed  and set aside the order of dismissal dated 7.8.1997 passed  by the disciplinary authority as also the order dated  20.11.1997 passed by the appellate authority. The  respondent-employee was directed to be reinstated forthwith.  The order passed by the Tribunal was questioned by the  present appellant by filing writ petition under Article 226  of the Constitution of India, 1950 (in short ’the  Constitution’).  The Division Bench of the Delhi High Court  by its order dated 5.12.2001 dismissed the writ petition as  infructuous by observing as follows:

"We are informed that respondent stands  already reinstated in service pursuant to  Tribunal order dated 21.11.2000 passed in  OA.95/98 rendering this petition as good as  infructuous.  But L/C for petitioners still  tried to justify the departmental action.  We  are not impressed as petitioner had already  implemented Tribunal order.

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Writ petition is, accordingly, dismissed  as infructuous."

Stand of the appellant in the present appeal is that  the view taken by the High Court is clearly untenable.   Merely because the respondent-employee had been reinstated  in service pursuant to impugned orders that did not render  the petition infructuous.   

In response, learned counsel for the respondent- employee submitted that Tribunal’s order is without blemish  and even on merits there is no scope for interference with  the said order.  Even otherwise as has been rightly held by  the High Court after the order of reinstatement the writ  petition had really become infructuous.   

The High Court’s order is clearly indefensible.  A writ  petition questioning the Tribunal’s order on merits does not  become infructuous by giving effect to the Tribunal’s order.   Merely because the order of reinstatement had been  implemented by the appellant, that did not render the writ  petition infructuous as has been observed by the High Court.   This position was clearly stated in Union of India v. G.R.  Prabhavalkar and Ors. (1973 (4) SCC 183). In para 23 of the  decision it was observed as follows:

"Mr. Singhvi, learned counsel, then  referred us to the fact that after the  judgment of the High Court the State  Government has passed an order on March 19,  1971, the effect of which is to equate the  Sales Tax Officers of the erstwhile Madhya  Pradesh State with the Sales Tax Officers,  Grade III, of Bombay. This order, in our  opinion, has been passed by the State  Government only to comply with the directions  given by the High Court. It was made during a  period when the appeal against the judgment  was pending in this Court. The fact that the  State Government took steps to comply with  the directions of the High Court cannot lead  to the inference that the appeal by the Union  of India has become infructuous."                          

The expression infructuous means ineffective,  unproductive and unfruitful.  It is derived from the Latin  word "fructus" (fruit).  By implementing an order, the  challenge to the validity of the order is not wiped out and  is not rendered redundant.                                   The inevitable result is that the appeal deserves to be  allowed which we direct.  The order of the High Court is set  aside and the matter is remitted to it for fresh disposal on  merits.  We make it clear that we have not expressed any  opinion on the merits of the case.   

       Appeal is allowed with no order as to costs.  27069