IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2551 of 2008. Reserved on: 07.09.2010. Decided on: 4.10.2010. ___________________________________________________ Om Kumar Jaidka and others. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 ________________________________________________________ For the petitioners. : Mr. Pawan Gautam, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: The present petition is now being pursued by the widow and children of one Shri H.R. Jaidka, who has died during the pendency of this petition. Shri H.R. Jaidka was appointed as Junior Engineer in the respondent-department. He was promoted as Assistant Engineer (Civil) and was posted at Dharamshala. Disciplinary proceedings were initiated against him under Rule 14 of CCS (CCA) Rules, 1965. The enquiry officer was appointed. The enquiry officer furnished the report to the disciplinary authority on 04.08.1984. Shri H.R. Jaidka (deceased) was served with a show cause notice on 25.05.1984, to which he filed reply on 11.06.1984. The Himachal Pradesh Public Service Commission was also consulted. Thereafter, vide Annexure A-2, dated 20th 1 Whether the reporters of the local papers may be allowed to see the judgment? August, 1985, Shri H.R. Jaidka (deceased) was dismissed from service. 2. Mr. Pawan Gautam, learned counsel for the petitioners has strenuously argued that his client has been permitted to superannuate on 31st August, 1985. In other words, his submission is that jural relationship with the respondent- department has come to an end on 31st August, 1985 and he was served with orders of dismissal only on 16th September, 1985. 3. Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that the petitioner was dismissed from service on 20th August, 1985 and he is not entitled to retiral/pensionary benefits. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. What emerges from the pleadings of the parties, is that the departmental proceedings were initiated against the petitioner under Rule 14 of the CCS (CCA) Rules, 1965. The enquiry officer was appointed. He has furnished the report to the disciplinary authority. In sequel thereto, the petitioner was served with a show-cause notice on 25.05.1984, to which he filed reply on 11.06.1984. The Executive Engineer, Irrigation-Cum-Public Health Division, Dharamshala has issued office order dated 29.08.1985 to the following effect: “Since Shri H.R. Jaidka, Assistant Engineer, Irrigation-Cum-Public Helth Sub Division, Dharamshala is retiring from Government Services w.e.f. August 31, 1985 A.N., Shri Wazir Singh Pathania, Assistant Engineer, Irrigation-Cum-Public Health Sub-Division, Shahpur is directed to take over complete charge from Shri H.R. Jaidka, Assistant Engineer and report compliance to this office.” 6. Thereafter, the petitioner has been permitted to retire after attaining the age of 58 years on August 31, 1985. 7. The case of the respondent-State, precisely is that after receipt of the reply furnished by the petitioner to the show- cause notice, the disciplinary authority had decided to impose the penalty of dismissal upon the petitioner on 20th August, 1985. In these circumstances, he was not entitled to pensionary/retiral benefits. However, the case of the petitioner, in a nut-shell, is that he has not been served with letter dated 20th August, 1985, whereby he was dismissed from service. He has received the order only on 16th September, 1985 and, in these circumstances, the petitioner could not be dismissed retrospectively. Petitioner has also filed O.A. No. 888 of 1994, assailing the order dated 20th August, 1985. The learned Tribunal on 22.07.1994 directed the same to be treated as representation to the Commissioner-Cum- Secretary (PW), Government of Himachal Pradesh. He rejected the same vide Annexure A-6. 8. Petitioner has served a legal notice on the Commissioner-Cum-Secretary, Irrigation-Cum-Public Health Department on 22.02.1993. He has specifically mentioned in his legal notice that he had received the copy of dismissal order on 16th September, 1985 when he was not in service. The Chief Engineer, I. & P.H. Department (North), Dharamshala has sent a point-wise reply of the notice to the Commissioner-Cum-Secretary on 26.05.1993. In paragraph No.-3, the following reply has been given: “That Shri H.R. Jaidka the then Assistant Engineer has been dismissed from the service vide Commissioner-Cum-secretary (PW) to the Government of Himachal Pradesh Shimla No.PBW-1A (5) 2/77, dated 20.8.1985 only addressed to Shri H.R. Jaidka with registered letter No. 3293-95, dated 17.09.1985 (copy enclosed). The dismissal orders were received in circle office vide Chief Engineer (IPH) HP Shimla letter No. IPH-Vig..Misc-CE/85-3728 dated 12.9.85, and further these were conveyed by the Executive Engineer IPH Division Dharamshala vide letter No. dated 17.9.1985. No doubt the intimation was given to Shri H.R. Jaidka later on by Circle Office, but in this respect he was already informed by the Commissioner-Cum-Secretary regarding his dismissal from service w.e.f. 20.8.1985.” 9. A bare perusal of reply to this paragraph makes it abundantly clear that the order of dismissal was dispatched on 17th September, 1985 vide registered letter No. 3293-95. It has come in the reply filed to the notice that the dismissal orders were received in circle office vide Chief Engineer (IPH) HP, Shimla letter dated 12.09.1985 and these were conveyed by the Executive Engineer, IPH Division Dharamshala vide letter dated 17.09.1985. It has also come in the reply to this paragraph that the intimation was given to the petitioner by the Circle Office and he was also informed by the Commissioner-Cum-Secretary regarding his dismissal from service since 20th August, 1985. It is borne out from the records that the order dated 20th August, 1985 has remained on the files and it was not communicated to the petitioner till 16/17th September, 1985. In the meantime, the petitioner has been permitted to superannuate and Shri Wazir Singh Pathania was directed to take over the complete charge from the petitioner. The question which now arises for consideration is whether the order dated 20th August, 1985 was required to be served upon the petitioner before his retirement or it could be issued after the petitioner has been permitted to retire on 31st August, 1985. 10. Their lordships of the Hon’ble Supreme court in Bachhittar Singh Versus State of Punjab and another, AIR 1963 Supreme Court 395 have held that it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character. Their lordships have held as under: “10. The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution therefore requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh*, is to act with the aid and advice of his Council of Ministers. Therefore until such advice is accepted by the Governor whatever the Minister or the Council of Ministers say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular state of Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the 'order' of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 at p. 512.: * Till the abolition of that office by the Amendment of the Constitution in 1956. "Mr. Gopal Singh attempted to argue that before the final order was passed she Council of Ministers had decided to accept the respondent representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent." Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over against and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.” 11. In State of Punjab Versus Amar Singh Harika AIR 1966 Supreme Court 1313, their Lordships of the Hon’ble Supreme Court have held that mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. Their lordships have further held that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it does not take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. Their lordships have held as under: “11. The first question which has been raised before us by Mr. Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on the 28th May 1951, the said order must be deemed to have taken effect as from the 3rd June 1949 when it was actually passed. The High Court has rejected this contention; but Mr. Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Mr. Bishan Narains' argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may fell that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him ? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May 1951. 12. In State of Punjab Versus Khemi Ram, AIR 1970 Supreme Court 214, their lordships of the Hon’ble Supreme Court have held that the order of suspension passed against Government servant takes effect from the date of communication and not from the date of actual receipt. Their Lordships have further held that actual knowledge of an order where it is one of dismissal, may, perhaps, become necessary because of certain consequences. Their lordships have held as under: “14. As stated earlier, the High Court relied on its own judgment in ILR (1962) 2 Punj 642 = (AIR 1963 Punj 298) (supra) and its observations at p. 656 of the report (ILR (1962) 2 Punj) = (at p. 306 of AIR). 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. State of Punjab, 1964-4 SCR 733 = (AIR 1964 SC 72). The appellant there was a Civil Surgeon in the Punjab State service. In 1956, he was posted to Jullundhar where he remained until he proceeded on leave preparatory 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 Rule 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 Rule 8.15 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 Government servant during such leave is valid. Two of the learned Judges held at p. 771 of the Report (1964-4 SCR) = (at p. 96 of AIR) 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 decision in 1962 Supp (3) SCR 713 = (AIR 1963 SC 395) (supra) and State of Punjab v. Sodhi Sukhdev Singh, 1961- 2 SCR 371 = (AIR 1961 SC 493) firstly, on the ground that the first case was one of dismissal and not of mere suspension, and secondly, that in neither case a final order has been passed. We may, however, 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 p. 737 (of 1964-4 SCR ) = (at p. 81 of AIR) 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 have accepted the interpretation which Dayal, J., had for himself and Mudholkar, 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. 16. 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 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 he 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. Actually knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in AIR 1966 SC 1313 (supra) 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.” 13. In the present case, the order dated 20th August, 1985 has been communicated to the petitioner by a registered letter only on 17th September, 1985 and by that time, he had already retired. 14. In High Court of Punjab & Haryana Verus Amrik Singh, 1995 Supp (1) Supreme Court Cases 321 have held that delinquent suspended and charge-sheeted during re-employment but allowed to retire on expiry of re-employment period and subsequently, departmental enquiry completed and on being found guilty of committing embezzlement, delinquent dismissed from service, the order of dismissal passed at this stage is inconsequential and superfluous. Their Lordships have held as under: “5. It is seen that the learned chief justice of the High court, on the administrative side, while passing the order of dismissal agreed with the enquiry officer's finding that the respondent committed embezzlement and mentioned that the order of dismissal would come into immediate effect from the date of the order. In other words, he appears to have intended to say that the order of dismissal will be operative from the date of the order of the dismissal. But it would appear that the chief justice was not apprised that the delinquent had already been retired from service on completion of two years' period of extended service of re- employment with effect from 31/8/1982. Therefore, the order of giving effect to the order of dismissal from the date of its order was of no consequence and became superfluous as he was no longer in service as on that date. However, it would be clear that he has the power either under Rule 2.2 of the Punjab and Haryana Civil Services Manual, Vol. II or Rule 9 of the central Civil Services Pension Rules to take appropriate action as was made applicable to the staff of the High court of Punjab and Haryana as the case may be. Therefore, it would be open to him to take such action as is open to him under law. The impugned order of the High court is set aside, and the writs are issued with the above modification. The appeals are allowed. No costs.” 15. In Union of India and others Versus Dinanath Shantaram Karekar and others (1998) 7 Supreme Court Cases 569, their Lordships of the Hon’ble Supreme Court have held that where the services are terminated, the status of the delinquent as a government servant comes to an end and nothing further remains to be done in the matter. But if the order is passed and merely kept in the file, it would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated. Their Lordships have held as under: “9. Where the services are terminated, the status of the delinquent as a government servant comes to an end and nothing further remains to be done in the matter. But