Case: State Of Punjab Vs. Khemi Ram

2. The respondent was appointed as a Sub-Inspector Co-operative 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 from March to November, 1953. While he was serving as the Inspector, he applied for the post of Assistant Registrar in Himachal Pradesh, and on a reference by that Government, his services were lent to Himachal Pradesh Government for appointment 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 certain matters which occurred in 1950 while he was working under the Punjab Government. Those proceedings, however, were kept in abeyance as the police in the meantime started investigations in those matters.3. In 1958, the Punjab Government decided to take disciplinary action against the respondent and informed the Himachal Pradesh Government of it on July 17, 1958. On July 16, 1958; however, the Himachal Pradesh Government had granted to the respondent 19 days leave preparatory to retirement, which was to take place on August 4, 1958. On being so informed, the Punjab 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.4. On July 31, 1958, the Punjab Government sent a 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 suspended from service with effect from August 2, 1958. On that very day, i.e., on July 31, 1958, the Punjab Government sent to him a charge-sheet at the address of the Registrar, Co-operative Societies, Himachal Pradesh, who re-directed it to the respondents 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 by two days, i.e., upto August 2, 1958, instead of August 4, 1958, as originally granted.5. On August 25, 1958, the respondent sent a representation to the Registrar, Co-operative Societies, Punjab in which he contended 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 invalid. On October 6, 1958, the Punjab Government replied to him rejecting his aforesaid contentions and informed him that if he did not attend the said enquiry, the same would be held ex parte. It appears that the 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 a 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 respondents dismissal.6. Thereupon, the respondent filed a writ petition in the High Court of Punjab challenging the order of dismissal and contending; (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 telegram, 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 to retire.7. The writ petition was, in the first instance, heard by a learned Single Judge. He noted that it was not denied before him that the respondent on being granted leave had proceeded to his village Batahar, post office Haripur in Tehsil Kulu, that he was there when the Himachal Pradesh Government issued the notification dated August 2, 1958 curtailing his leave upto that date and that a copy of that notification with the endorsement calling upon him to report to the Punjab Government for duty on August 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 subsequent proceedings starting with the order of suspension and ending with his dismissal were void.8. 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 a Government servant under suspension on a charge of misconduct shall not be permitted to retire on his reaching the date of compulsory retirement but should be retained in service until the enquiry into the charge was completed and a 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, therefore, 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 followingis indubitably correct that action for dismissal against a 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 retirement till he received information to the contrary. No order has been proved to have been served on him before the 4th August, 1958 intimating 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 actually retired from service and he cannot be bound by any subsequent proceedings".On the State Government filing a Letters Patent appeal against the said order, a Division Bench of that High Court followed its earlier judgment in Dr. Pratap Singh v. State of Punjab, ILR (1962) 2 Punj 642 = (AIR 1963 Punj 298) which had held that an order passed under Rule 3.26 (d) took effect from the day it was served on the concerned Government servant, and upheld the order of the learned single Judge in the followingthe present case the fact remains that the respondent was not in a position to know and could not possibly have submitted to or carried out the orders which has 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 bethis view, the Division Bench dismissed the States appeal.9. It appears that the respondent had, besides the said contention, raised three more contentions summarised by the Division Bench in the penultimate paragraph of its judgment. These three contention were left undecided in view of the Division Bench deciding the appeal on the first contention.

Reasoning:
The question for determination thus is whether the said order of suspension admittedly made before the date of the respondents retirement 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 retired on August 4, 1958, rendering the enquiry and the ultimate order of dismissalorder 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.17. In this view, we must hold that the order of suspension was validly passed and was communicated to the respondent before August 4, 1958, and therefore, was effective as from July 31, 1958. Accordingly, we allow the States appeal and set aside the judgment and order of the High Court. But as the High Court did not decide the aforesaid three questions raised on behalf of the respondent, we remand the case to the High Court with the direction to give its decision thereon in accordance with law. The cost of this apeal will be costs before the High Court.