Case: State Of Punjab Vs. Amar Singh Harika

that no suit shall be instituted by any private individual against the State or any State Officer in respect of his dismissal from State service. After Patiala merged with and became a part of the Patiala and East Punjab States Union, all laws, rules and regulations in the erstwhile State of Patiala were made applicable to the newly formed Union. As such, the Farman-i-Shahi also continued to be in operation; but, as has been pointed out by the High Court, S. 13 of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2005 BK. (No. XVI of 2005 BK) (hereinafter referred to as "the Ordinance") expressly provided that Government may sue or be sued by the name of the Government of the State or in such other manner as may, by notification, be directed by the Government, though S. 12 retained the bar of certain suits against the State as therein provided. The question is whether in view of S. 13 of the Ordinance, the present suit is competent or not; and in deciding this question, it is necessary to refer to S. 14 of the Ordinance. Section 14 reads thus :- "(1) Subject to the provisions of sub-s. (2), the Rajpramukh or any authority authorised in this behalf by the Rajpramukh, may - (a) regulate the recruitment and conditions of service of persons appointed to public services, and to posts in connection with the affairs of the Government, or (b) make rules or regulations for the conduct of Government servants who are members of the public services or are holding posts in connection with the affairs of the Government, or for any other matter relating to them. (2) No person who is a member of a civil service of the State or holds any Civil Post in the State shall be dismissed from service or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken against him." There is a proviso to this section which is not relevant for our purpose. The High Court has taken the view that having regard to the specific provisions of S. 14 (2) of the Ordinance, the bar created by the Farman-i-Shahi against the competence of all suits must be deemed to have been removed in regard to cases of public servants who seek to challenge the legality or the validity of the orders of dismissal passed against them on the ground that they contravene the mandatory provisions of S. 14 (2) of the Ordinance. Section 14, in substance, corresponds to Art. 311 of the Constitution; and in our opinion, the High Court is right in holding that having regard to the significance and importance of the guarantee contained in S. 14 (2) of the Ordinance, it would be reasonable to hold that suits filed by public servants for the purpose of challenging the validity of orders of dismissal passed against them in contravention of S. 14 (2) are competent. Besides, S. 13 of the Ordinance itself seems to authorise the institution of such a suit and the High Court has observed that "the protection afforded by the said section would be not only meaningless but wholly elusive if a suit like the present is held to be incompetent. "Therefore, we are not satisfied that Mr. Bishan Narain can successfully challenge the correctness of the decision of the High Court that the suit filed by the respondent is competent. It will be noticed that this conclusion is based on S. 14 of the Ordinance quite apart from the provisions of Art. 311 of the Constitution. 13. That leaves only one question to be considered; did the respondent get the benefit of S. 14 (2) of the Ordinance? The answer to this question must clearly be in favour of the respondent. The enquiry held against the respondent seems to us to be illegal and invalid from beginning to end. What purports to be the chargesheet framed against the respondent is no more than questionnaire, and some of these questions clearly show that the approach adopted by the authorities that drafted the said questions, was completely unreasonable, if not perverse. One of the questions which was put in this questionnaire was: on whose authority the respondent cancelled the permits issued by him to the bogus representative? It is surprising that the substance of the charge being that permits for the procurement of 1000 mds. of Bajra were issued to a bogus representative, it should have been suggested that in canceling the said permits, the respondent had done something which was wrong. Another question seems to suggest that when the respondent in self-defence pleaded that he had acted under the orders of the higher authorities, that itself, it was thought, constituted misconduct. Therefore, what purports to be the charge-sheet itself discloses a serious infirmity in the approach adopted in initiating the proceedings against the respondent. 14. Then as to the reasonable opportunity guaranteed by S. 14 (2) of the Ordinance, it is clear that a copy of the report made against him has not been supplied to the respondent; and even when he was heard before the order of dismissal was passed against him, he had no means of knowing what grounds had weighed with the Enquiry Committee when it made a report against him. Having regard to the procedure adopted by the State authorities in appointing the Enquiry Committee, in formulating the questionnaire containing the charges against the respondent, in making the report, and in dealing with the recommendations made by the Chief Secretary from time to time, we are satisfied that the High Court was right in coming to the conclusion that the respondent had not received a reasonable opportunity to make his defence, and that the proceedings of the enquiry and the report made by the Committee, as well as the final order of dismissal passed against respondent have contravened the safeguards guaranteed by S. 14 (2) of the Ordinance.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 1951It is true that the Farman-i-Shahi which was the law in Patiala at the relevant time had provided that no suit shall be instituted by any private individual against the State or any State Officer in respect of his dismissal from State service. After Patiala merged with and became a part of the Patiala and East Punjab States Union, all laws, rules and regulations in the erstwhile State of Patiala were made applicable to the newly formed Union. As such, the Farman-i-Shahi also continued to be in operation; but, as has been pointed out by the High Court, S. 13 of the Patiala and East Punjab States Union General Provisions (Administration) Ordinance, 2005 BK. (No. XVI of 2005 BK) (hereinafter referred to as "the Ordinance") expressly provided that Government may sue or be sued by the name of the Government of the State or in such other manner as may, by notification, be directed by the Government, though S. 12 retained the bar of certain suits against the State as therein provided. The question is whether in view of S. 13 of the Ordinance, the present suit is competent or not; and in deciding this question, it is necessary to refer to S. 14 of the OrdinanceThere is a proviso to this section which is not relevant for our purpose. The High Court has taken the view that having regard to the specific provisions of S. 14 (2) of the Ordinance, the bar created by the Farman-i-Shahi against the competence of all suits must be deemed to have been removed in regard to cases of public servants who seek to challenge the legality or the validity of the orders of dismissal passed against them on the ground that they contravene the mandatory provisions of S. 14 (2) of the Ordinance. Section 14, in substance, corresponds to Art. 311 of the Constitution; and in our opinion, the High Court is right in holding that having regard to the significance and importance of the guarantee contained in S. 14 (2) of the Ordinance, it would be reasonable to hold that suits filed by public servants for the purpose of challenging the validity of orders of dismissal passed against them in contravention of S. 14 (2) are competent. Besides, S. 13 of the Ordinance itself seems to authorise the institution of such a suit and the High Court has observed that "the protection afforded by the said section would be not only meaningless but wholly elusive if a suit like the present is held to be incompetent. "Therefore, we are not satisfied that Mr. Bishan Narain can successfully challenge the correctness of the decision of the High Court that the suit filed by the respondent is competent. It will be noticed that this conclusion is based on S. 14 of the Ordinance quite apart from the provisions of Art. 311 of the ConstitutionThe answer to this question must clearly be in favour of the respondent. The enquiry held against the respondent seems to us to be illegal and invalid from beginning to end. What purports to be the chargesheet framed against the respondent is no more than questionnaire, and some of these questions clearly show that the approach adopted by the authorities that drafted the said questions, was completely unreasonable, if not perverse. One of the questions which was put in this questionnaire was: on whose authority the respondent cancelled the permits issued by him to the bogus representative? It is surprising that the substance of the charge being that permits for the procurement of 1000 mds. of Bajra were issued to a bogus representative, it should have been suggested that in canceling the said permits, the respondent had done something which was wrong. Another question seems to suggest that when the respondent in self-defence pleaded that he had acted under the orders of the higher authorities, that itself, it was thought, constituted misconduct. Therefore, what purports to be the charge-sheet itself discloses a serious infirmity in the approach adopted in initiating the proceedings against the respondent14. Then as to the reasonable opportunity guaranteed by S. 14 (2) of the Ordinance, it is clear that a copy of the report made against him has not been supplied to the respondent; and even when he was heard before the order of dismissal was passed against him, he had no means of knowing what grounds had weighed with the Enquiry Committee when it made a report against him. Having regard to the procedure adopted by the State authorities in appointing the Enquiry Committee, in formulating the questionnaire containing the charges against the respondent, in making the report, and in dealing with the recommendations made by the Chief Secretary from time to time, we are satisfied that the High Court was right in coming to the conclusion that the respondent had not received a reasonable opportunity to make his defence, and that the proceedings of the enquiry and the report made by the Committee, as well as the final order of dismissal passed against respondent have contravened the safeguards guaranteed by S. 14 (2) of the Ordinance.