STATE OF PUNJAB versus KHEMI RAM

.. :·G·· ...

STATE OF PUNJAB

KHEMIRAM

October 6, 1969

(J. M. SHELAT1 V. BHARGAVA, C. A. VAID!ALINGAM A1'D I. D. DuA, JJ.]

Punjab Civil Serl'ices Ru/es, r .. 3. 26(d)-Ortler of suspension n·ht'ther e/]1.•ctive froni date of its issue or d~uc of receipt by concerned Gover111rrent ser\·cnt-V alidity o/ ·procc·edings ending in disniirsal when order of suspeu .. siou not re~eived by Government ser1.:arzt before age of superannuation,

The services of the respondent \\"ho wa~ an Inspector Cooperative So~icties in the Punjab were lent to thl:i: Himachal Pradesh Government in the capacity of Assistant Registrar. His date. of superannuation \\.1lS Augus~ 4, 1958. On July 16, 1958 he was granted 19 days leave pre-·parntory to retirement by the Himachal Pradesh Governn1ent. On July 25, 1958 the Government 'of Punjab asked the Himachal Pradesh Gov. crnment tb cancel the leavC granted to the respondent und to direct him to revert to the Punjab Government immediately. On July 31, the Pun· jab Government sent ~telegram tQ the respondent at his home addrl!ss as he had gone there imrnediate!y ~tfter grant of leave. The te1e[,f."an1 in. ionned him that he had been "Suspended from service with effect fn"ln1. Augu."t 2, 1958. On that very day charge....sheet \Vas issued to him, by letter 1..b.1.c-d August 2, 1958 the Himachal· Pradesh Government informed the respondent that his leave was reduced by two days i.e. it v.:ould end on . .\ugust 2, 1958. All these. communicatioDs reached the respondent 3fter August 4, 1958. He "ttendcd the subsequent departmental enquiry_).l.Ildcr protest. After con1pleting formalities the Punjab Governmeflt-diSml.s"cd him from service.. Thereupon the respondent filed \\-Tit petition in the High Court challenging his dismissal. It was urged that as he bad aln·b.dy r~tirc<l on August 4, 1958 the proceedings starting with the order cf sus· pension and ending with his ,dismiss:il were void and against the terms of r. 3.26(d) of the Punjab Civil Service Rules as they then stood. 'The sai!.1 rule provided that Government servant under suspension for n1is-con<luct shall not be permitted to retire on his reaching the date of compul-sory retirement but should be retained in service until the e.-:quiry into the charge was completed and final order passed passed thereon. The Single Judge allo\ve<l the respondent's petition. The Division Bench in 3ppt!al upheld the order of the Single Judge relying upon its earlier judg· nlcnt in Dr. Pratap Singh's cate \vhich had held that an order passed und~r r. 3.~6(d) tciok effect from the day it was served on the concerned Gov-.crn1ncn~ servant. The State appealed,

HELD : The 'communication of an order such :i.s an order of suspen· idon is only necessary· because till the order is isshed and actually sent 0out to the person concerned the authority making such order would be ;n posi6on to change its mind and modify it if it thouAht fit. Once such ar\ order is sent out it goes out of the control of such nn autbority, a.hd thcre'fore. there would be no chance whatsoever of its changing its mind or modifying it. Therefore nfter nn order is issued and sent out tb tbC· conccY.ned Government serva11;t, it must be held to have heen com~ niunicated to him no matter when he actually received it .. [665 B-C] 1 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 \Vould

be possihic. for Government seryant to effectively th\vart an order by avoiding receipt of it by one method or the other till after the date of his !"etiren1ent even th'Jugh such an order is passed and desoatchcd before such date. [665 D]

Actual kno,vledge by the conce;rned Government servant of an o.rdcr \vherc it is one of dismissal may. perhaps be nccess:i.ry becauSe of the consequences \Vhich the decision in Anzar Singh's cose contemplates. But such consequences would not occur in· the case. of an officer who has pro-ceeded on leave and against whom an order of suspension is passed be-cause in his case there. is no question of his doipg any act or passing. an.: orJer a;id such act or order being challenged as invalid. 1[665 E-F]

In this view it must be held in the present case, that the order of sus~ pzn~ion was vali<lly passed and was communicated to the respondent before Augusl 4, 1958 and therefore was effective as from [1]uly 31, 19.58, Accordingly tl)e State's appeal must be allowed. [665 G]

Dr. PrC1tC1p Singh v. State of Punjab, l.L.R. [1962] 15(2) Puajab 642, Raia Hctrish Chandra Raj Singh v o1 The Deputy J_and Aquisition Officer, .[1962] 1 S.C.R. 0-Y6 . .JJachhituir Singh v. The State of Punjab, [1962] 3 Supp. S.C:R. 713, S. Prar,:p Si11gli v. Stai'e of Punjab, [1964] 4 S.C.R. 733. State of Punjab v. Sodhi Sukdev Si11g/i, [1961] 2 S.C.R. 371 and State of Punjab v. An1ct" Singh Harika A.I.R. 1966 S.C. 1313, considered. " . CtVIL APPELLATE JuR1so1cnoN: 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 amd R. N. Sachlhe;y, for the appellant.

Bhagat Singh Chawla, K. L. Mehta and S. K. Mehta, for the respondent.

The Judgme,nt of the Court was delivered by

Shelat, J. The question arising in this appeal under certifi-cate granted by the High Court of Punjab is whether an order of suspension passed against Government servant takes effect when i,t is made or when it is actually served on and received by him,

The respondent was appointed as 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 froth March to November 1953. While he was serving as the Inspector, he applied for the post of Assistant Re-gistrar in Himachal Pradesh, and on a.,reference by that Govern-ment, his services wern lent to Himachal Pradesh Governmen.t for appointni~nt 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-

tain matters which occurred in 1950 while he was working under the Punjab Government. Those proceedings, however, were hpt in abeyance as the police in the meantime started investiga-tion in those matters. In 1958, the Punjab Government decided to take discipli-nary action against the respondent and informed the Hirnachal Pradesh Government of it on July 17, 1958. On July 16, 1958, however, the Himachal Pradesh Government had granted to the re.spondent 19 days leave preparatory to retirement, which was to take place on August 4, 1958. On being so informed, the Pun-jab 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 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 sus-D pended from service with effect from August 2, 1958. On that very day, i.e., on July 31, 1958, the Punjab Government sent to him charge-sheet at the address of the Registrar, Co-operative Societies, Himachal Pradesh, who re-directed it to the respon-dent's 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 bv two days, i.e. upto August 2, 1958, instead of August 4, 1958 as originally grant-ed.

On August 25, 1958 the respondent sent representation to the Registrar, Co-operative Societies, Punjab in which he con-F tended 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 in-valid. On October 6, 1958 the Punjab Government replied to l1im rejecting his aforesaid contentions and informed him that if he did not attend the said enquiry, the same would be held ~x­G parte. lt appears that th.~ 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 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 writ petition in the High Court of Punjab challenging the order of dismissal and contend-

:ing : (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 tdegram, 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 tq retire.

The writ petition was, in the first instance, heard by learned Single Judge. He noted that it was not denied before him that the respondent on being granted leave had proceedeg to his vil-lage Betahar, post office Haripur in Tehsil Kulu, that he was there when the Himachal Pradesh Government issued the notifi-cation dated August 2, 1958 curtailing his leave upto that date and that copy of that notification with the endorsement calling upon him to report to the Punjab Government for duty on Augl!st 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 subse-quent 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 Government servant under suspension on charge of misconduct shall not be permitted to retire on his reaching the -Oate of compulsory retirement but should be retained in service until the enquiry into the charge was completed and 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, there-fore, 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 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 re-tirement till he received information to the

contrary. No order has been proved to hav~ b~n serv-ed on him before the 4th August, 19S8 intimatmg 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 actual-ly retired from service and he cannot be bound by any subsequent proceedings."

On the State Government filing Letters Patent appeal against the said order, Division Bench of that High Court followed its earlier judgment in Dr. Pratap Singh v. State of Punjab('), which had held that an order pas~ed under r. 3 .26( d) took effect from the day it was served on the concerned Government servant, and upheld tne order of the learned Single Judge in the following terms:

"In the present case the fact remains that the res-pondent was not in 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 up-held."

In this vi~w, the Division Bench dismissed the State's appeal.

It appears that the respondent had, besides the said cont~i:­E tion, raised three more contentions ·summarised by the Divi-sion 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 retiremer't 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 whether he must, therefore, be held to have rc:lired on August 4, 1958 rendering the enquir; and the ultimate order of dismissal invalid.

There can be no doubt that if disciplinary action is sought to be taken against Government servant it must be. done before he retires as provided by the said rule. If disciplinary enquiry cannot be concluded before the date of Buch retirement the course open to the Government is to pass an on!er of susi>ension and refuse to permit the concetned public servant to retire and retain him in service till such enquiry is completed and final order is II passed therein. That such course was adopted by the Punjab Government by passing the orde, of suspension on July 31, 1958

0) I. L. R. [1962] 15 (2) Punjab 642.

cannot be gainsaid. That fact is clearly- demonstrated by the telegram, Ex. P-1, which was in fact despatched to the respon~ dent on July 31, 1958 by the Secretary, Co-operative Societies to the Punjab Government, informing the respondent that he was placed under suspension with dl'ect from August 2, 1958. As the telegram shows, it was sent to his home uddress at village Batahar, post office Haripur, as the respondent had already by that time proceeded on leave sanctioned by the Himachal Pradl'-sh Administration. Ex. R-1 is the memorandum, also dated July 31, 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 copy of that memorandum was forwarded· to the respondent at his said address at village Batahar, post-office Haripur. Lastly,. there is annexure to the respondent's petition which consists of an ex-press telegram dated August 2, 1958 and letter of the same date in confirmation thereof informing the respondent that he was placed under suspension with effect from that date. Both the tele-gram 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 result of their having been transmitted to the respondent. The position, therefore, war, not as if the order passed by the Punjab Government suspending the respon-dent 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 pro-ceeded on such leave, this was also not 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 not enough and the order of suspension did not take effect till it was received by the res-pondent, 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 pro-position canvassed by counsel for the respondent.

The first decision brought to our notice was in Raja Harish Chandra Raj Si.'1gh v. The Deputy Land Acquisition Officer(') 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 thaf such an award of the Collector is not

decision but an offer of compensation on behalf of the Govern-ment 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 filing it in the office of the Collector. It also involved its com-munication 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. The State of Punjab(1) case of disciplinary action taken against 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 provisional character. That was case where the Minister concerned had made note on file and no order in terms of that noie was drawn up in the name of the Governor as_ required by Art. 166(1) of the Constitution or communicated to the con-cerned Govermnent savant.As stated earlier, the High Cmr-t relied on its own judgment in S. Pratap Sinr?h v. The State of Punjab(') and its observations at page 656 of the report. That decision came up before this Court in app.eal and the decision therein of this Court is to be found in S. Pratap Singh v. The State o; Punjab('). The appel-lant there was Civil Sur~eon in the Pun.iab State service. In 1956, he was posted to Jullundur where he .remained until he proceeded on leave prepartory to retirement sometime in Dece,;1-ber 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 ~ervice beyond that date till the comple-tion of the departmental enquiry against him. These orders ac-tually reached the appe!bnt on July 19, 196r but were published m the Gazette Extraordinary on June 10, 1961. On the question whether the State Government could validly pass the aforesaid orcte:s, this Court held that under r. 8.15 of the Punjab Civil Services Rules there was no restriction on the power of revoca-tion of leave with respect to the time when it is to be exercised that the date from which Government servant is on leave pre'. paratory to retirement cannot be treated as the date of his retire-ment 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--T1)TJ96?J) S"rr. S_C_R_71S.--(2) T.L R [1967] 15 (') PPrj 64' ()) [1964] 4 S.C.R. 733. . ' . -·

hitrar Singh v. The State of Punjab(') and State of Punjab v. Sodhi Sukhdev Sinph(2), firstly, on the ground that the first case was one of dismissal and not of mere suspension, and secondly, that in neither case 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, ob-served at page 73 7 of the Report that whereas they agreed with the main conclusion that the impugned orders were not beyond the Covernment's power they should not be taken to nave accepted the interpretation which Dayal, J., had for him5elf 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 Government's order becomes effective as soon as it is issued.

The last decision cited before us was that of State of Puniab v. Amar Singh Harika(') where o·ne 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 copy thereof was sent to other 6 persons noted thereunder, no ~opy was sent to the concerned public servant who came to know of it only on May 28, 1951 and tha! :oo only through another offi-cer. On these facts, the Court held, rejecting the contention that the order became effective 'J soon as it was issued, that the mere passing of the order of dis nissal 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 ccmmunicated to him before that date. The ordinary meaning of the word 'communicate' is to impart, confer or transmit information. (cf. Shorter Oxford Eng-lish Dictionary, Vol. 1, p. 352). As already stated, telegrams <lated July 31, and August 2, 1958 were despatched to the res-pendent at the address given by him where communications by Government should be despatched. Both the telegrams trans-mitted or imparted information to the responJent 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 im-(1) [1962] 3 Supp, S,C,R, 713. (2) [1961] 2 S .. R. 371. (3) A. J. R. 1966 S. C. 1313.

parted or transmitted to bim 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 communi-cation of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communi-cation 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 position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes om 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 he actually received it. We find jt 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 communica-tion, it would be possible for 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 sue~ an order is passed and despatched to bim before such date. An offi-cer 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 wrong address and thus prevent or delay its receipt and be able to defeat its service on him. Such meaning of the word 'communication' ought not to be given un-less the provision in question expressly so provides. Actual know" ledge by him of an order where it is one of dismissal, may, per-haps, become necessary because of the consequences which the decision in The State of Punjab v. Amar Singh (1) contem-plates. 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 vahdly passed and was communicated to the respondent before · August 4, 1958, and therefore, was effective as from July 31 .1958. Accordingly, \Ve allow the State's appeal and set aside th~ 1u.dgment an.d order of the High Court. But as the High Court did not decide the aforesaid three questions raised on behalf of th.e re;;pondent: we. remfill:d. the case to the High Court with the drrect10n to give its dec1S1on thereon in accordance with law The cost of this appeal will be costs before the High Court. · Y.P.

Appeal allowed and case remanded.

(I) A.I.R. 1966 S.C. 1313-