CWP No. 1194 of 2007 (1) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1194 of 2007 Date of Decision: 8.5.2008 Rajender Parshad Aggarwal ....Petitioner Versus Board of Directors and others ....Respondents Coram: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE MOHINDER PAL Present: Shri Ranbir Malik, Advocate, for Shri Mani Ram Verma, Advocate, for the petitioner. Shri GPS Bal, Advocate, for respondent Nos. 1, 2 and 4. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? HEMANT GUPTA, J. The challenge in the present writ petition is to the order dated 17.7.2002 (Annexure P.7), whereby the petitioner was reverted to the post of Assistant and the order dated 7.11.2005 (Annexure P.8) affirming the said order in appeal. The petitioner was charge-sheeted under Rule 7 of the Haryana Civil Services (Punishment and Appeal) Rules, 1987 (hereinafter referred to as the `1987 Rules'), on 1.6.1999. The Inquiry Officer submitted his report dated 28.2.2000 and found the charges proved against the petitioner. Further enquiry report was also submitted on 23.11.2000. After the report was furnished, a show cause notice was issued on 1.1.2001. On receipt of the notice, the petitioner submitted detailed reply dated 18.1.2001 to the show cause notice. There was another charge sheet under Rule 7 of 1987 Rules dated 11.6.1999. The Inquiry Officer has given his report on 28.2.2000 on which a show cause CWP No. 1194 of 2007 (2) notice was issued to the petitioner on 2.6.2000. Still further, the petitioner was served with another charge sheet on 23.3.2000 under Rule 7 of the 1987 Rules. The Inquiry Officer found the charges proved against the petitioner and a show cause notice dated 20.12.2001 was issued. After considering the reply to all the three show causes notices, an order of punishment of reversion was passed on 17.7.2004, which order has been affirmed in the appeal as well. Learned counsel for the petitioner has vehemently argued that in fact, the Chairman of the Board, the competent Disciplinary Authority, has passed an order on 12.4.2001, whereby penalty of stoppage of two increments with cumulative effect was imposed and, therefore, the impugned order could not have been passed by the Chairman on 17.7.2002. However, it is admitted by the learned counsel for the petitioner that the order dated 12.4.2001 was never communicated to the petitioner or to any other person or authority and that he has obtained copy of the said order from the respondents by filing an application under the Right to Information Act, 2005. In Bachhittar Singh v. State of Punjab and another, AIR 1963 Supreme Court 395, the Revenue Minister wrote on the file that the charges against the delinquent were serious and they were proved, but noted that the dismissal would be harsh and instead of dismissing the delinquent outright, he should be reverted to his original post. However, subsequently on account of merger of the State of Pepsu with the State of Punjab, the file was put up with the successor Minister, who passed the order of dismissal of the delinquent. The Hon'ble Supreme Court held that merely writing something on the file does not amount to an order. Before, something amounts to an order of the State Government, two things are necessary i.e. the order has to be expressed in the name of the Governor as required by Clause (1) of Article 166 of CWP No. 1194 of 2007 (3) the Constitution and then it has to be communicated. It was held to the following effect:- “Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a 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 regard as the `order' to 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:- “Mr. Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks to prove my 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 respondents.” 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 CWP No. 1194 of 2007 (4) 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.” Later in State of Bihar etc. etc. v. Kripalu Shankar etc. etc., AIR 1987 Supreme Court 1554, the Hon'ble Supreme Court was seized of the question whether notings in the office file constitute contempt. It was held that the notings in an office file not only of Officer but even that of a Minister, will not constitute an order to affect others, unless it is done in accordance with Article 166(2) of the Constitution. It was held to the following effect:- “Viewed in this light, can it be said that what is contained in a notes file can ever be made the basis of an action either in contempt or in defamation. The notings in a notes file do not have behind them the sanction of law as an effective order. It is only an expression of a feeling by the concerned officer on the subject under review. To examine whether contempt is committed or not, what has to be looked into is the ultimate order. A mere expression of a view in notes file cannot be the sole basis for action in contempt. Business of a State is not done by a single officer. It involves a complicated process. In a democratic set up, it is conducted through the agency of a large number of officers. That being so, the nothing by one officer, will not afford a valid ground to initiate action in contempt. We have thus, no hesitation to hold that the expression of opinion in notes file at different levels by concerned officers will not constitute criminal contempt.” CWP No. 1194 of 2007 (5) In the instant case, it was found that the noting by the Chairman was never communicated. Unless an order is communicated, the mere noting on the file does not amount to an order, which will create an embargo on subsequent authority to pass an order as it may consider appropriate. Therefore, on the basis of the noting of the Chairman dated 12.4.2001, it cannot be said that the Disciplinary Authority had no jurisdiction to pass the impugned order on 17.7.2002. In view of the above, we do not find any patent illegality or irregularity in the disciplinary proceedings, which may warrant interference by this Court, in exercise of its writ jurisdiction. Hence, the present writ petition is dismissed. (HEMANT GUPTA) JUDGE (MOHINDER PAL) JUDGE 08-05-2008 SRM/ds