State of Punjab Vs. Khemi Ram [1969] INSC
266 (6 October 1969)
06/10/1969 SHELAT, J.M.
SHELAT, J.M.
BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.
DUA, I.D.
CITATION: 1970 AIR 214 1970 SCR (2) 657 1969
SCC (3) 28
CITATOR INFO :
RF 1970 SC1494 (9,10) MV 1972 SC 554 (70) RF
1976 SC1737 (1,2) F 1977 SC 629 (15) F 1978 SC1109 (8)
ACT:
Punjab Civil Services Rules, r. 3.
26(d)-Order of suspension whether effective from date of its issue or date of
receipt by concerned Government servant-Validity of proceedings ending in
dismissal when order of suspension not received by Government servant before
age of superannuation.
HEADNOTE:
The services of the respondent who was an
Inspector Cooperative Societies in the Punjab were lent to the Himachal Pradesh
Government in the capacity of Assistant Registrar. His date of superannuation
was August 4, 1958.
On July 16, 1958 he was granted 19 day,;
leave preparatory to retirement by the Himachal Pradesh Government. On July 25,
1958 the Government of Punjab asked the Himachal Pradesh Government to cancel
the leave ranted to the respondent and to direct him to revert to the Punjab
Government immediately. On July 31, the Punjab Government sent a telegram to
the respondent at his home address as he had gone there immediately after grant
of leave. The telegram informed him that he had been suspended from service
with effect from. August 2, 1958. On that very day a charge- sheet was issued
to him, by letter dated August 2, 1958 the Himachal Pradesh Government informed
the respondent that his leave was reduced by two days i.e. it would end on
August 2, 1958. All these. communications reached the respondent after August
4, 1958. He attended the subsequent departmental enquiry under protest. After
completing formalities the Punjab Government dismissed him from service.
Thereupon the respondent filed a writ petition in the High Court challenging
his dismissal. It was urged that as he had already retired on August 4, 1958 the
proceedings starting with the order of suspension and ending with his dismissal
were void and against the terms of r. 3.26(d) of the Punjab Civil Service Rules
as they then stood. The said rule provided that a Government servant under
suspension for misconduct shall not be permitted to retire on his reaching the
date of compulsory retirement but should be retained in service until the
enquiry into the charge was completed and a final order passed passed thereon.
The Single Judge allowed the respondent's petition. The Division Bench in
appeal upheld the order of the Single Judge relying upon its earlier judgment
in Dr. Pratap Singh's cave which had held that an order passed under r. 3.26(d)
took effect from the day it was served on the concerned Government servant. The
State appealed,
HELD : The communication of an order such as
an order of suspension is only necessary because till the order is issued and
actually sent out to the person concerned the authority making such order would
be in a position to change its mind and modify it if it thought fit. Once such
an order is sent out it goes out of the control of such an authority, and
therefore, there would be no chance whatsoever of its changing its mind or
modifying it.
Therefore after an order is issued and sent
out to the concerned Government servant. it must be held to have been
communicated to him no matter when he actually received it.
[665 B-C] The view that it is only from the
date of the actual receipt by him that the order becomes effective could not be
accepted for then it would 658 be possible for a Government servant to
effectively thwart 'an order by avoiding receipt of it by one method or the
other till after the date of his Retirement even though such an order is passed
and dispatched before such date. [665 D] Actual knowledge by the concerned
Government servant of an order where it is one of dismissal may, perhaps be
necessary because 'of the consequences which the decision in Amar Singh's case
contemplates. But such consequences would not occur in the case of an officer
who has proceeded on leave and against whom an order of suspension is passed
because in his case there is no question of his doing any act or passing an
order and such act or order being challenged as invalid. [665 E-F] In this view
it must be held in the present case, that the order of suspension was validly
passed and was communicated to the respondent before August 4, 1958 and
therefore was effective as from July 31, 1958, Accordingly the State's appeal
must be allowed. [665 G] Dr. Pratap Singh v. State of Punjab, I.L.R. [1962]
15(2) Punjab 642, Raja Harish Chandra Rai Singh v. The Deputy Land Aquisition
Officer, [1962] 1 S.C.R. 676, Bachhittar Singh v. The State of Punjab [1962] 3
Supp. S.C.R. 713, S. Pratap Singh v. State of Punjab, [1964] 4 S.C.R. 733,
State of Punjab v. Sodhi Sukdev Singh, [1961] 2 S.C.R. 371 and State of Punjab
v. Amar Singh Harika A.I.R. 1966 S.C. 1313, considered.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1217 of 1966.
Appeal from the judgment and order dated May
29, 1963 of the Punjab High Court in Letters Patent Appeal No. 251 of 1962.
V. C. Mahajan and R. N. Sachthey, for the
appellant.
Bhagat Singh Chawla, K. L. Mehta and S. K.
Mehta, for the respondent.
The Judgment of the Court was delivered by
Shelat, J. The question arising in this appeal under certificate granted by the
High Court of Punjab is whether an order of suspension passed against a
Government servant takes effect when it is made or when it is actually served
on and received by him, The respondent was appointed as a sub-inspector,
Co-opera- tive Societies, in 1925 in the service of the State of Punjab. He was
promoted to the post of Inspector and was confirmed thereon in 1939. In 1952,
he was approved for promotion to the post of Assistant Registrar and officiated
thereafter as such in short term vacancies from March to November 1953. While
he was serving as the Inspector, he applied for the post of Assistant Registrar
in Himachal Pradesh, and on a reference by that Government, his services were
lent to Himachal Pradesh Government for appointment as the Assistant Registrar.
While he was so serving there, he was charge-sheeted on August 9, 1955 by the
Registrar, Co- operative Societies, Punjab in connection with cer- 659 tain
matters which occurred in 1950 while he was working under the Punjab Government.
Those proceedings, however, were kept in abeyance as the police in the meantime
started investigation in those matters.
In 1958,the Punjab Government decided to take
disciplinary action against the respondent and informed the Himachal Pradesh Government
of it on July 17, 1958. On July 16, 1958, however, the Himachal Pradesh
Government had granted to the respondent 19 days leave preparatory to
retirement, which was to take place on August 4, 1958. On being so informed,
the Punjab Government by its telegram dated July 25, 1958 informed the Himachal
Pradesh Government that it had no authority to grant such leave and requested
that Government to cancel it and direct the respondent to revert to the Punjab
Government immediately.
On July 31, 1958 the Punjab Government sent a
telegram.
Ex. P-1, to the respondent at his home
address as the respondent had already left for his home town on leave being
granted to him as aforesaid. The telegram informed him that he had been
suspended from service with effect from August 2, 1958. On that very day, i.e.,
on July 31, 1958, the Punjab Government sent to him a charge-sheet at the
address of the Registrar, Co-operative Societies, Himachal Pradesh, who
re-directed it to the respondents said home address.
By its letter dated August 2, 1958 the
Himachal Pradesh Government informed the respondent that his services were
reverted to the Punjab Government and that the leave granted to him had been
curtailed by two days, i.e. upto August 2, 1958, instead of August 4, 1958 as
originally granted.
On August 25, 1958 the respondent sent a
representation to the Registrar, Co-operative Societies, Punjab in which he
contended that he had already retired from service on August 4, 1958 and that
the order of suspension which he received after that date and the order for
holding the enquiry against him were both invalid. On October 6, 1958 the
Punjab Government replied to him rejecting his aforesaid contentions and
informed him that if he did not attend the said enquiry, the same would be held
exparte. It appears that the respondent attended the said enquiry, but under
protest. On the completion of the enquiry, the officer holding it made his
report and sent it to the Punjab Government. On August 14, 1959 that Government
sent him a notice to show cause why the penalty of dismissal. should not be
awarded against him. The respondent sent his reply to the said notice. By its
order dated May 28 1960 the Punjab Government ordered the respondent's
dismissal.
Thereupon, the respondent filed a writ
petition in the High Court of Punjab challenging the order of dismissal and
contending: (a) that the said enquiry was illegal as by the time it was started
he had already retired from service, and (b) that the order of suspension which
was sought to be served on him by the said telegram, dated July 31, 1958, was
received by him after his retirement on August 4, 1958, and therefore, it could
not have ,the effect of refusal to permit him to retire.
The writ petition was, in the first instance,
heard by a learned Single Judge. He noted that it was not denied before him
that the respondent on beincg granted leave had proceeded to his village
Betahar, post office Haripur in Tehsil Kulu, that he was there when the
Himachal Pradesh Government issued the notification dated August 2, 1958
curtailing his leave upto that date and that a copy of that notification with
the endorsement calling upon him to report to the Punjab Government for duty on
August 4, 1958 was sent to the respondent on August 6, 1958. He :also noted
that the telegram dated July 31, 1958 informing the respondent of his
suspension with effect from August 2, 1958 did ,not reach him till about the
middle of August 1958. On these two facts it was contended by the respondent
that he had already retired from service when the order reverting his service
to the Punjab Government was passed, and that therefore, the subsequent
proceedings starting with the order of suspension and ending with his dismissal
were void.
This contention was raised on the strength of
rule 3.26(d) of the Punjab Civil Services Rules, as it then stood. That rule
provided that a Government servant under suspension on a charge (of misconduct
shall not be permitted to retire on his reaching the date of compulsory
retirement but should be retained in service until the enquiry into the charge
was completed and a final order was passed thereon. The argument was that as
the respondent was not served with the said order of suspension on or before
August 4, 1958 and as he had retired on that day and was, therefore, no longer
in service, the said enquiry and the said order of dismissal were in breach of
rule 3.26(d) and were illegal. The learned Single Judge accepted the contention
and allowed the writ petition with the following observations "It is
indubitably correct that action for dismissal against a Government servant can
be taken during the tenure of the service. It is not denied that the petitioner
was due to retire on the afternoon of 4th August, 1958.
It has not been challenged that the
petitioner had gone to his village in Kulu Tehsil after the leave preparatory
to retirement was granted to him. The petitioner was entitled to treat himself
as on leave preparatory to retirement till he received information to the 661
contrary. No order has been proved to have been served on him before the 4th
August, 1958 intimating the petitioner that he had been reverted to the Punjab
State or that he had been suspended. It must, therefore, be held in the
circumstances that the petitioner had actually retired from service and lie
cannot be bound by any subsequent proceedings." On the state Government
filing a Letters patent appeal against the said order, a Division Bench of that
High Court followed its earlier judgment in Di-. Pratap Singh v. State of
Pinjab(1), wbich had held that an order passed under r. 3.26(d) took effect
from the day it was served. on the concerned Government servant, and upheld the
order of the learned Single Judge in the following terms ,,In the present case
the fact remains that the respondent was not in a position to know and could
not possibly have submitted to or carried out the orders which had been made
before 4th August, 1958 and that also without any fault on his part, with the
result that the decision of the learned Single Judge must be upheld." In
this view, the Division Bench dismissed the State's appeal.
It appears that the respondent had, besides
the said coiitention, raised three more contentions summarised by the Division
Bench in the penultimate paragraph of its judgment.
These three contentions were left undecided
in view of the Division Bench deciding the appeal on the first contention .
The question for determination thus is
whether the said order of suspension admittedly made before the date of the respondent's
retirement as required by the said rule 3.26(d) did not take effect by reason
only that it was received by the respondent after the said date of retirement
and which he must, therefore, be held to have retired on August 4.
1958 rendering the enquiry and the ultimate
order of dismissal invalid.
There can be no doubt that if disciplinary
action is sought to be taken against a Government servant it must be done
before he retires as provided by the said rule. If a disciplinary enquiry
cannot be concluded before the (late of such retirement, the course open to the
Government is to pass an order of suspension and refuse to permit the concerned
public servant to retire and retain him in service till such enquiry is
completed and a final order is passed therein. That Such a course was adopted
by the Punjab Government by passing, the order- of suspension on July 31, 1958
(1) 1. L. R. [1962] 15 (2) Punjab 642.
662 cannot be gainsaid. That fact is clearly
demonstrated by the telegram, Ex. P-1, which was in fact despatched to the
respondent on July 31, 1958 by the Secretary, Co-operative Societies to the
Punjab Government, informing the respondent that he was placed under suspension
with effect from August 2, 1958. As the telegram shows, it was sent to his home
address at village Batahar, post office Haripur, as the respondent had already
by that time proceeded on leave sanctioned by the Himachal Pradesh
Administration. Ex. R- 1 is the memorandum, also dated July 3 1, 1958, by which
the Punjab Government passed the said order of suspension and further ordered
not to permit the respondent to retire on August 4, 1958. That exhibit shows
that a copy of that memorandum was forwarded to the respondent at his said
address at village Batahar, post-office Haripur. Lastly, there is annexure H to
the respondent's petition which consists of an express telegram dated August 2,
1958 and a letter of the same date in confirmation thereof informing the
respondent that he was placed under suspension with effect from that date. Both
the telegram and the letter in confirmation were despatched at the address
given by the respondent, i.e., at his village Batahar, post office Haripur.
These documents, therefore, clearly demonstrate that the order of suspension
was passed on July 31, 1958, i.e., before the date of his retirement and had
passed from the hands of the Punjab Government as a result of their having been
transmitted to the respondent. The position, therefore, was not as if the order
passed by the Punjab Government suspending the respondent from service remained
with the Government or that it could have, therefore, changed its mind about it
or modified it. Since the respondent had been granted leave and had in fact
proceeded on such leave, this was also not a case where, despite the order of
suspension, he could have transacted any act or passed any order in his
capacity as the Assistant Registrar.
But the contention was that this was Pot
enough and the order of suspension did not take effect till it was received by
the respondent , which as aforesaid was sometime in the middle of August 1958,
long after the date of his retirement. In support of this contention certain
authorities were cited before us which we must now examine to find out whether
they lay down the proposition canvassed by counsel for the respondent.
The first decision brought to out- notice was
in Raja Chandra Raj Singh v. The Deputy Land Acquisition Officer(1) where the
question canvassed was as to what was the date of the award for purposes of S.
18 of the Land Acquisition Act, 1894. and where it was held that such an award
of the Collector is not (1962) S,C.R. 676.
663 a decision but an offer of compensation
on behalf of the Government to the owner and is not effective until it is
communicated to him. The making of the award, it was said, did not consist
merely in the physical act of writing the award or signing it or tiling it in
the office of the Collector. It also involved its communication to the owner
either actually or constructively. No question, however, arose there whether an
award can be said to have been communicated to the owner if it was despatched
to him out was not actually received by him. In Bachhittar Singh v. he State of
Punjab(1) a case of disciplinary action taken against a Government servant, it
was said that an order would not be said to have come into effect until it was
communicated, as until then it can be reconsidered and modified, and therefore,
has till then a provisional character. That was a case where the Minister
concerned had made a note on a file and no order in terms of that note was
drawn up in tile name of the Governor as required by Art.
166(1) of the Constitution or communicated to
the concerned Government servant.
As stated earlier, the High Court relied on
its own judgment in S. Pratap Singh v. The State of Punjab (2 ) and its
observations ,it page 656 of the report. That decision came up before this
Court in appeal and the decision therein of this Court is to be found in S.
Pratap Singh v. The State of Punjab (3). The appellant there was a Civil
Surgeon in the Punjab State service. In 1956, he was posted to Jullundur where
he remained until lie proceeded on leave prepartory to retirement sometime in
December 1960. His leave was sanctioned on December 18, 1960 and was notified
in the Gazette on January 27, 1961. On June 3, 1961 the Governor passed an
order of suspension with immediate effect and revoked his leave. He also passed
an order under r. 3.26(d) to the effect that as he was to retire on June 16,
1961 he should be retained in service beyond that date till the completion of
the departmental enquiry against him. These orders actually reached the
appellant on July 19, 1961 but were published in the Gazette Extraordinary on
June 10, 1961. On the question whether the State Government could validly pass
the aforesaid orders, this Court held that under r. 815 of the Punjab Civil
Services Rules there was no restriction on the power of revocation of leave
with respect to the time when it is to be exercised. that the date from which a
Government servant is on leave preparatory to retirement cannot be treated as
the date of his retirement from service and that an order of suspension of the
Gov- ernment servant during such leave is valid. Two of the learned Judges held
at page 771 of the Report that an order of suspension of the appellant when he
was on leave could be effective from the moment it was issued. They
distinguished the decisions in Bach- (1)[1962]3 Supp. S. C R 713.
(3) [1964] 4 S.C.R. 733.
(2) I.L.R [1962] 15 (2) Punj. 642 664 hittar
Singh v. The State of Punjab(1) and State of Punjab v. Sodhi Sukhdev Singh(-),
firstly, on the round that the first case was one of dismissal and not of mere
suspension, and secondly, that in neither case a final order had been passed.
We may, how,ever., mention that the other three learned Judges did not deal
with this question, and therefore, neither expressed their dissent nor
agreement.
Indeed, Ayyangar, J., who spoke for them,
observed at page 737 of the Report that whereas they agreed with the main
conclusion that the impugned orders were not beyond the Government's power they
should not be taken to nave accepted the interpretation which Dayal, J., had
for himself and Mud- holkar, J., placed on several of the rules considered by
them. In view of these observations it is difficult to say whether the majority
agreed or not with the view taken by Dayal, J.. that a Government's order
becomes effective as soon as it is issued.
The last decision cited before us was that of
State of Punjab v. Amar Singh Harika(3) where one of the questions canvassed
was whether an order of dismissal can be said to be effective only from the
date when it is made known or communicated to the concerned public servant. The
facts of the case show that though the order of dismissal was passed on June 3,
1949 and a copy thereof was sent to other 6 persons noted thereunder, no copy
was sent to the concerned public servant who came to know of it only on May 28,
1951 and that too only through another officer. On these facts, the Court held,
rejecting the contention that the order became effective as soon as it was
issued, that the mere passing of the order of dismissal would not make it
effec- tive unless it was published and communicated to the concerned officer.
The question then is whether communicating
the order means its actual receipt by the concerned Government servant. The
order of suspension in question was published in the Gazette though that was
after the date when the respondent was to retire. But the point is whether it
was communicated to him before that date. The ordinary meaning of the word
'communicate' is to impart, confer or transmit information.
(cf. Shorter Oxford English Dictionary, Vol.
1, p. 352).
As already stated, telegrams dated July 31,
and August 2, 1958 were despatched to the respondent at the address given by
him where communications by Government should be despatched. Both the telegrams
transmitted or imparted information to the respondent that he was suspended
from service with effect from August 2, 1958. It may. be that he actually
received them in or about the middle of August 1958 after the date of his
retirement. But how can it be said that the information about his having been
suspended was not imparted - 1) [1962] 3 Supp, S.C.R.713.
(3) A. I. R. 1966 S. C. 1313.
(2) [1961] 2 S. C R. 371.
665 or transmitted to him on July 31 and
August 2, 1958, i.e... before August 4, 1958 when he would have retired ? It
will be seen that in all the decisions cited before us it was the communication
of the impugned order which was held to be essential and not its actual receipt
by the officer concerned and such communication was held to be necessary
because till the order is issued and actually sent out to the person concerned
the authority making such order would be in a position to change its mind and
modify it if it thought fit. But once such an order is sent out, it goes out of
the control of such an authority, and therefore, there would be no chance
whatsoever of its changing its mind or modifying it. In our view, once an order
is issued and it is sent out to the concerned Government servant, it must be
held to have been communicated to him, no matter when lie actually received it.
We find it difficult to persuade ourselves to accept the view that it is only
from the date of the actual receipt by him that the order becomes effective. If
that be the true meaning of communication, it would be possible for a
Government servant to effectively thwart an order by avoiding receipt of it by
one method or the. other till after the date of his retirement even though such
an order is passed and despatched to him before such date. An officer against
whom action is sought to be taken, thus. may go away from the address given by
him for service of such orders, or may deliberately give a wrong address and
thus prevent or delay its receipt and be able to defeat its service on him.
Such a. meaning of the word 'communication' ought not to be given unless the
provision in question expressly so provides. Actual knowledge by him of an
order where it is one of dismissal, may, perhaps, become necessary because of
the consequences which the. decision in The State of Punjab v. Amar Singh (1)
contemplates. But such consequences would not occur in the case of an officer
who has proceeded on leave and against whom an order of' suspension is passed
because in his case there is no question of his doing any act or passing any
order and such act or order being challenged as invalid.
In this view, we must hold that the order of
suspension was validly passed and was communicated to the respondent before
August 4, 1958, and therefore, was effective as from July
31. 1958. Accordingly, we allow the State's
appeal and set aside the judgment and order of the High Court. But as the High
Court did not decide the aforesaid three questions raised on behalf of the
respondent, we remand the case to the High Court with the direction to give its
decision thereon in accordance with law. The cost of this appeal will be costs
before the High Court.
G.C. Appeal allowed and case remanded.
(1) A.I.R. 1966 S.C. 1313.
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