IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-04-2010 CORAM : THE HONOURABLE MR. JUSTICE B. RAJENDRAN W.P. No. 42695 of 2006 P. Singaram .. Petitioner Versus The District Forest Officer Tirupattur Division Tirupattur – 635 601 Vellore District .. Respondent O.A. No. 7567 of 1998 filed before the Tribunal and stood transferred to this Court, praying to call for the records on the file of the District Forest Officer, the respondent herein dismissing the petitioner from service in his proceedings C.No.6500/90/E2 dated 30.11.1990 and quash the same and direct the respondent to reinstate the applicant in service. For Petitioner : Mr. T.D. Panneerselvam For Respondent : Mr. S.N. Kirubanandam Special Government Pleader (Forest) ORDER The petitioner, who was working as a Forest Guard, was suspended by the respondent by an order dated 21.06.1990 under Rule 17 (e) of the Tamil Nadu Civil Services (D&A) Rules for certain lapses. According to the petitioner, he was employed as Forest Watcher at the additional sandalwood depot from 12.06.1989 to 20.06.1990. When the alleged irregularities were detected by the respondent, he was not on duty at the depot and he was sleeping in his quarters. Though he participated in the enquiry conducted in respect of the charges, he was not supplied with the order of dismissal. He would contend that only as per letter dated 18.07.1997 addressed to his counsel on record, he was informed by the respondent that an order of dismissal dated 30.11.1990 was passed, but even along with the said letter dated 18.07.1997, the order of dismissal was not enclosed. Further, as per the letter dated 16.12.1997 addressed to his counsel on record, it was informed that the order of dismissal dated 30.11.1990 was pasted in the house of the petitioner in the presence of witnesses. Therefore, the only contention of the petitioner in the Original Application before the Tribunal was that the order of dismissal dated 30.11.1990 was not at all served to him directly and therefore, he filed the original application before the Tribunal with a prayer to dispense with the production of the order of dismissal https://hcservices.ecourts.gov.in/hcservices/ dated 30.11.1990. According to the petitioner, the impugned order has not been served on him at all and it is an improper service. The service of the order of dismissal by affixture is not a correct procedure as he was not residing in the place where it was affixed. The residence was situate in a forest reserve area and nobody can have access to that place without proper permission. Therefore, the affixture in the house where he was not residing is illegal. Since the order of dismissal was not communicated to him, the order of dismissal cannot be said to have taken effect, therefore, he prayed to quash the order of dismissal and to direct the respondent to reinstate him in service. On abolition of the Tribunal, the matter stood transferred to this Court and re-numbered as WP No. 42695 of 2006. 2. The only point argued by the learned counsel for the petitioner is that the impugned order of dismissal was not served on the petitioner and therefore the entire proceedings are vitiated. No other point was argued before this Court. 3. The learned Special Government Pleader appearing for the respondent , relying on the reply affidavit of the respondent, submitted that the petitioner was placed under suspension on 21.06.1990 pending enquiry into grave charges. A charge memo dated 22.07.1990 under Rule 17 (b) of Tamil Nadu Civil Services (D&A) Rules was issued to him containing three charges namely (i) neglect of duty (ii) connivance for removal of sandal wood from the additional sandalwood depot, Tirupattur and (iii) suppression of facts. On receipt of the charge memo, the petitioner submitted his preliminary explanation on 19.08.1990. Not satisfied with the explanation offered by the petitioner, the Assistant Conservator of Forests, Forest Protection Squad, Tirupattur was appointed as enquiry officer. After conducting elaborate enquiry, in which the petitioner has also participated, the enquiry officer submitted his report on 12.11.1990. Based on the report of the enquiry officer, the respondent passed the order of dismissal from service on 30.11.1990. Therefore, the order of dismissal is valid and binding on the petitioner. 4. Heard both sides. At the time of filing the Original Application, the petitoner was 57 years, he would have retired from service in the normal course and he is nearly 70 years old now. 5. The main point for consideration in this writ petition is whether the order of dismissal was properly served on the petitioner or not. In order to decide this issue, this Court directed the learned Special Government Pleader appearing for the respondent to produce the file. Accordingly, the file was produced for the perusal of this Court. 6. According to the respondent, the charge of conniving with the accused in removing 994 kgs of sandal wood from the additional sandal wood depot is a serious offence and considering the gravity of charges, the petitioner was dismissed from service after conducting proper enquiry. Since the petitioner was evading service of the https://hcservices.ecourts.gov.in/hcservices/ order of dismissal, officials of the department went to the house of the petitioner to serve it in person, but the petitioner's wife has stated that the petitioner had gone to Madras, therefore, the order of dismissal could not be served on the petitioner directly. Later on, the impugned order of dismissal was affixed in the presence of witnesses in the house of the petitioner. The order of dismissal was also sent by registered post with acknowledgment due on 31.12.1990 but it was returned with an endorsement "parties are not residing therein" as could be found in the file. 7. According to the respondent, the impugned order of dismissal dated 30.11.1990 was affixed in the house of the petitioner on 12.02.1991. Thereafter, the counsel for the petitioner had sent a legal notice dated 07.06.1997 to the respondent to reinstate the petitioner in service, for which a reply dated 18.07.1997 was issued by the respondent in which it was stated that the petitioner was dismissed from service on 30.11.1990 and therefore the question of reinstatement in service does not arise. Again, on 27.11.1997, a legal notice was issued by the counsel for the petitioner reiterating the same request, for which a reply dated 16.12.1997 was issued rejecting the claim for reinstatement. In and by the said reply, it was also stated that the order of dismissal was served by affixture in the house of the petitioner. Later, on 21.01.2000, the copy of the order was served by the counsel for the respondent to the counsel for the petitioner before the Tribunal. 8. The learned counsel for the petitioner contended that after issuance of charge memo, an enquiry was conducted and the enquiry officer submitted his report. Thereafter, the disciplinary authority seems to have passed an order dismissing the petitioner from service, however, at no point of time, the order of dismissal was served on the petitioner. Even though the petitioner was seeking for furnishing the copy of the order of dismissal, it was not served. For the first time, before the Tribunal, across the bar, the copy of the order of dismissal was served on the counsel for the petitioner and it cannot be construed to be a proper service. Even in the reply notice sent by the respondent in the year 1997, the respondent would only contend that the order of dismissal was served by affixture in the house of the petitioner but copy of the order was not annexed. 9. According to the respondent, the order of dismissal was passed in the year 1990 and it was served by affixture in the presence of witnesses. Thereafter, only in the year 1997, a legal notice was sent by the petitioner seeking reinstatement into service. Subsequently, when the Original Application was filed before the Tribunal, during the year 2000, the copy of the order was served on the counsel for the petitioner. Under those circumstances, the relief claimed by the petitioner is hit by the principles of laches and on that ground, the writ petition is liable to be dismissed. 10. It is seen from the records that on 12.12.1990, one Forest Guard went to the house of the petitioner and enquired about him. At that time, the wife of the petitioner has stated that the petitioner has gone to Madras and he will come back within a week. Thereafter, https://hcservices.ecourts.gov.in/hcservices/ again, the officer went to the house of the petitioner on 21.12.1990 and at that time, the wife seems to have replied that the petitioner has not returned from Madras. Therefore, the official had made an endorsement to the effect that he could not serve the order of dismissal to the petitioner. A representation to this effect was given the said official namely Lakshmanan, Forester, to this effect to the respondent. It is seen from the said representation that the very same Forester was asked to serve the order of dismissal to another delinquent Shanmugam, which also he could not be served. On 21.01.1991, the Forest Range Officer sent a communication to the respondent in his proceedings dated 21.01.1991 wherein it is stated that the petitioner as well as the co-delinquent Shanmugam were not available in their house and therefore, the Forest Guard could not serve the order of dismissal on them. Earlier, on 31.12.1990, the order or dismissal was sent by registered post with acknowledgment due and that was also returned on 18.01.1991. Therefore, the order could not be served as per the report submitted by the Forest Range Officer to the respondent. Thereafter, on 12.02.1991, one Viswanathan, Forester, has given a statement that he had gone to the house of the petitioner and the said Shanmugam, to the last known address, wherein they were residing, but as they were not available, the order of dismissal was served by way of affixture in the presence of five witnesses. All the five witnesses are forest guards who have attested the affixture notice. Therefore, as could be seen from the file, the order of dismissal was served by way of affixture to the last known address of the petitioner on 12.02.1991, after a period of three months from the date of passing of the order of dismissal, which is valid. 11. From the above discussion, it is clear that the respondent has taken all possible steps to serve the order of dismissal dated 30.11.1990 to the petitioner, but the petitioner and his family members have wantonly and wilfully evaded service of the order of dismissal dated 30.11.1990. It is also pertinent to point out here that the respondent has served the order of dismissal dated 30.11.1990 by way of affixture, which is also one of the recognised modes of service. There are three modes of service by which the order could be served by the respondent and they are (i) directly serving the delinquent officer or any adult member in the family (ii) by registered post with acknowledgment due and (iii) by affixture. In this case, when the order of dismissal dated 30.11.1990 was to be served on the petitioner, his wife was available in the house, but she has not received it but stated that the petitioner had gone to Madras and he would come back after a week. Thereafter, again, for the second time, when the order was to be served on the petitioner, the petitioner's wife has stated that the petitioner has not returned from Madras. Under those circumstance, the petitioner could not be personally served with the copy of the order. Thereafter, the order dated 30.11.1990 was sent by registered post with acknowledgment due, but it was returned and lastly, the respondent resorted to serving the order by affixture. 12. The learned counsel for the petitioner would contend that all the five witnesses, who have witnessed the affixture are forest https://hcservices.ecourts.gov.in/hcservices/ guard and no independent witness has signed the order when it was affixed. First of all, there is no bar for the same. There is no bar that the affixture was witnessed by five forest guards especially when admittedly they are residence of the quarters. Furthermore, as per the suspension order, it is incumbent on the part of the petitioner to remain in the head quarters. Even as per the petitioner, he was not in the head quarters during the period of suspension that it itself is a violation of the order of suspension. Therefore, the petitioner cannot now take umbrage at this point of time and contend that the order of dismissal has not been served served on him. 13. Above all these things, the impugned order was dated 30.11.1990, the affixture was made on 12.02.1991 i.e., after three months from the date of passing the order of dismissal. Subsequently, the subsistence allowance paid to the petitioner was stopped. Therefore, if really the petitioner was under the impression that he was not dismissed from service, the moment the subsistence allowance was stopped, he could have either issued a notice to the respondent or rushed to the court seeking subsistence allowance. Between 12.02.1991, the date of affixture of order of dismissal till the year 1997 when a legal notice was sent by the petitioner through his counsel, the petitioner has not raised his little finger and remained silent. Only after lapse of seven years, the petitioner had sent a legal notice dated 07.06.1997 through his counsel to the respondent to reinstate him in service for which a reply dated 18.07.1997 was sent stating that he was dismissed from service on 30.11.1990. Thereafter, the petitioner sent another legal notice dated 27.11.1997 through his counsel reiterating the request for reinstatement, which was again rejected by the respondent by sending a reply dated 16.12.1997. Only thereafter, he filed the Original Application before the Tribunal. During the pendency of the Original Application, the copy of the order was served on the counsel for the petitioner. Therefore, it is astonishing to find that the petitioner, who was suspended from service, had kept quiet for seven years on the ground that he was under the bonafide impression that he still continuing in service. According to the petitioner, even if the order of dismissal was passed, when it is not served on him, it will not be operative against him. In this context, the learned counsel for the petitioner relied on the decision of the Constitution Bench of the Honourable Supreme Court reported in (State of Punjab vs. Amar Singh Harika) AIR 1966 SC 1313 for the proposition that even order of dismissal is passed, it will become effective only when it is published or communicated to the officer concerned. The order of dismissal passed by the appropriate authority and kept on its file without communicating it to the officer 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. In Para No.11, it was held as follows:- "11. .... We are not impressed by Mr. Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be https://hcservices.ecourts.gov.in/hcservices/ effective unless it is published and communicated to the officer concerned. If theappointing authority passed an order of dismissal, but does not communicated 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 tomodify its order. It may be that in some cases, the authority may feel 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 theparties concerned. If it is held that the mere possessing 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 office3r concerned has already been suspended, https://hcservices.ecourts.gov.in/hcservices/ difficulties would arise. If it is held that no 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." 14. The learned counsel for the petitioner also relied on the decision reported in (Ranjit Singh vs. Union of India and others) (2006) 4 SCC 153 for the proposition that when the dismissal order was not communicated and it is set aside, the delinquent is deemed to be under suspension. In Para No.22, it was held as follows:- 22. In view of the aforementioned decisions of this Court, it is now well settled that the principles of natural justice were required to be complied with by the disciplinary authority. He was also required to apply his mind to the materials on record. The enquiry officer arrived at findings which were in favour of the appellant. Such findings were required (sic sought) to be overturned by the disciplinary authority. It is in that view of the matter, the power sought to be exercised by the disciplinary authority, although not as that of an Appellate Authority, but is akin thereto. The inquiry report was in favour of the appellant but the disciplinary authority proposed to differ with such conclusions and, thus, apart from complying with the principles of natural justice it was obligatory on his part, in the absence of any show-cause filed by the appellant, to analyse the materials on record afresh. It was all the more necessary because even CBI, after a thorough investigation in the matter, did not find any case against the appellant and thus, filed a closure report. It is, therefore, not a case where the appellant was exonerated by a criminal court after a full-fledged trial by giving benefit of doubt. It was also not a case where the appellant could be held guilty in the disciplinary proceedings applying the standard of proof as preponderance of the probability as contrasted with the standard of proof in a criminal trial i.e. proof beyond all reasonable doubt. When a final form was filed in favour of the appellant, CBI even did not find a prima facie case against him. The disciplinary authority in the aforementioned peculiar https://hcservices.ecourts.gov.in/hcservices/ situation was obligated to apply its mind on the materials brought on record by the parties in the light of the findings arrived at by the inquiry officer. It should not have relied only on the reasons disclosed by him in his show-cause notice which, it will bear repetition to state, was only tentative in nature. As the Appellate Authority in arriving at its finding, laid emphasis on the fact that the appellant has not filed any objection to the show-cause notice; ordinarily, this Court would not have exercised its power of judicial review in such a matter, but the case in hand appears to be an exceptional one as the appellant was exonerated by the inquiry officer. He filed a show-cause but, albeit after some time the said cause was available with the disciplinary authority before he issued the order of dismissal. Even if he had prepared the order of dismissal, he could have considered the show- cause as he did not leave his office by then. The expression “communication” in respect of an order of dismissal or removal from service would mean that the same is served upon the delinquent officer. (See State of Punjab v. Amar Singh Harika)" 15. The learned counsel for the petitioner further relied on the decision of this Court reported in (Mayakkal vs. District Forest Officer, Madurai) 2009 2 MLJ 118, wherein a learned single Judge of this Court held that when order of removal passed by the authorities adversely affect the right of the government servant, such an order passed by the appointing or disciplinary authority and kept in file without communicating it to the officer concerned in the manner known to law does not take effect from the date on which the order is written by the said authority. The order imposing major penalty would be effective only when it is communicated to the government servant so as to provide him an opportunity to take recourse to law. In Para No.19, it was held as follows:- 18. An order of dismissal terminates the status of a government servant from service. It has civil consequences, affecting his service and monetary benefits. The relationship betweenthe Government and its servant is severed when the government servant is inflicted with a major penalty of dismissal or removal entailing deprivation of benefits of his length of service, like pension and other benefits under the social security schemes. A Government servant, who is removed, is not in a better position than the one who is inflicted with a punishment of dismissal, excepting the right to seek for fresh appointment. In the case of compulsory retirement, the government servant is entitled to https://hcservices.ecourts.gov.in/hcservices/ atleast monetary benefits on account of his contribution, made by him, during the period of service and retiral benefits. Therefore, when the order of dismissal or removal, terminates the relationship between the employer and employee and brings to an end the status of a government servant, mere writing of an order and keeping it in the office file, shall not be treated to be an order terminating his services nor shall the order be deemed to have been communicated. As the order of dismissal/removal, adversely affects the rights of a government servant, such an order passed by the appointing/disciplinary authority and kept in the file, without communicating it to the officer concerned, in the manner known to law, does not take effect, from the date on which, the order is written by the said authority. The order imposing major penalty would be effective only when it is communicated to the government servant, so as to provide him an opportunity to take recourse to law. "19. As stated supra, communication of an order of dismissal/removal/ compulsory retirement,