Union Of India Through The ... vs Veer Singh
2015 Latest Caselaw 3858 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 24
 
Case :- SERVICE SINGLE No. - 3459 of 2002
 
Petitioner :- Union Of India Through The Divisional Railway Manager
 
Respondent :- Veer Singh
 
Counsel for Petitioner :- Anil Srivastava,Pratul Kumar Srivastava
 
Counsel for Respondent :- B.B. Nigam,Ram Singh
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Heard Mr. Pratul Kumar Srivastava, learned counsel for the petitioners and Mr. D.S. Yadav holding brief of Mr. Ram Singh Yadav, learned counsel for the opposite party No.1.

By means of present writ petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 18.1.2002 passed by the Central Government Industrial Tribunal Cum Labour Court, Lucknow [hereinafter referred as "Tribunal"] in I.D. No. 208 of 2000 (reference No. 41012/180/2000/IR (B-I) dated 30.11.2000) : Veer Singh Vs. DRM, Central Railway, Jhansi and others, whereby while deciding preliminary issue i.e. whether the domestic enquiry against the workman was fair and proper ?, the Tribunal gave liberty to the management to adduce fresh evidence in support of the charge before the Tribunal and to file list of documents and witnesses to be relied in the enquiry before the Tribunal and further the workman was directed to file list of his witness and documents.

Submission of the learned counsel for the petitioners is that while deciding the preliminary issue with respect to the nature of the enquiry, learned Tribunal exceeded its jurisdiction as the Tribunal, on one hand, recorded specific finding on perusal of the record that ex parte enquiry against the workman cannot be faulted as the workman was given full opportunity but he failed to avail on explained pretexts and on the other hand, the Tribunal set-aside the entire proceedings of the enquiry including the stage prior to submission of the enquiry report by the Enquiry Officer to the disciplinary authority upto which he himself did not find any fault.

Counsel for the petitioners has further submitted that despite specific arguments on behalf of the petitioners putforth before the Tribunal that the alleged note-sheet dated 21.9.1995 does not form part of Disciplinary Enquiry against opposite party No.1/workman, as such, no cognizance of the same should have been taken but the Tribunal did not appreciate the same in its true perspective and ignoring the fact that show cause notice was also issued to the workman on the same date, passed the impugned order.

Elaborating his submissions, Counsel for the petitioners has submitted that the decision in the file till its formal order is issued, cannot said to be order as it is always open for the authority concerned to review the same at the later stage. It is also submitted that the show cause notice was issued to the opposite party No.1 on 21.9.1995 but no reply was given and as such, removal order was passed on 22.12.1995.

Learned counsel for the petitioners, in support of his submission, has placed reliance upon the judgment of the Constitution Bench reported in AIR 1966 SC 1313 : State of Punjab Vs. Amar Singh Harika, wherein the Hon'ble Supreme Court has held that mere passing of an order of dismissal is not effective unless it is published and communicated to the officer concerned. It has been submitted that cognizance taken by the Tribunal with respect to the order passed on the file is not justifiable.

Per contra, Mr. D.S. Yadav, holding brief of Mr. Ram Singh Yadav, learned counsel for the opposite party No.1 has failed to make any submission in support of the impugned order of the learned Tribunal and has fairly submitted that the same may be set-aside and the matter may be remitted to the Tribunal with a direction to proceed from the stage prior of passing the impugned order.

I have heard learned counsel for the parties and perused the records.

In the case of Bipromasz Bipron Trading SA -vs- Bharat Electronics Limited [(2012) 6 SCC 384], it has been held that an order passed by an authority cannot be said to take effect unless the same is communicated to the party effected. The order passed by a competent authority or by an appropriate authority and kept with itself, could be changed, modified, cancelled and thus denuding such an order of the characteristics of a final order. Such an un-communicated order can neither create any rights in favour of a party, nor take away the rights of any affected party, till it is communicated.

In the case of Bachhittar Singh -vs- State of Punjab and another ( AIR 1963 SC 395), it has been held that the essence is, 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 for 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.

In the case of Bhavnagar University -vs- Palitana Sugar Mill (P) Ltd. and Others [(2003) 2 SCC 111) wherein it is held that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the Act are only creature of statute. They must act within the four corners thereof.

The Constitution Bench, in para-11 of the Amar Singh Harika (supra), has held as under :

"The first question which has been raised before us by Sri Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on 28 May 1951, the said order must be deemed to have taken effect as from 3 June 1949 when it was actually passed. The High Court has rejected this contention; but Sri Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Sri Bishan Narain's 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 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 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 complication would inevitable 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 form 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 3 June 1949, could not be said to have taken effect until the respondent came to know about it on 28 May 1951."

On perusal of the impugned order, it reveals that the Tribunal, after going through the record, on one hand, recorded a specific finding that ex parte enquiry against the workman cannot be faulted as the workman was given full opportunity but he failed to avail on explained pretexts but on the other hand, the Tribunal, on observing that the disciplinary authority passed the punishment order on 21.9.1995, therefore, issuance of show cause notice on the date itself i.e. 21.9.1995 was meaningless and further speaks prejudging the penality without any notice, has held that it is a defective enquiry and unsustainable in law. Accordingly, the Tribunal gave liberty to the management to adduce evidence in support of the charge before the Tribunal and to file list of documents and witnesses to be relied in the enquiry before the Tribunal and the workman was also directed to file list of his witness and documents.

Admittedly, the Tribunal, on perusal of the records, opined that there is no fault in the ex parte enquiry as the workman chooses not to participate in the enquiry and on the other hand, the Tribunal observed that the disciplinary authority had already passed order imposing penality of removal on 21.9.1995 and so issuance of show cause notice was meaning less and further speaks prejudging the penalty without any notice and as such, held this procedure lapse makes the enquiry defective and unsustainable in law. Thus, there is contradiction in the observations recorded by the Tribunal and as such, interest of justice would suffice, if the matter is remitted to the Tribunal for deciding it afresh from the stage prior to passing of the impugned order.

For the aforesaid reasons, the order dated 18.1.2002 is quashed. The matter is remitted to the Tribunal for deciding it afresh from the stage of prior to passing of the impugned order.

Since the matter is of the year 2000, therefore, it is expected that the Tribunal will make an earnest endeavour in deciding the dispute, expeditiously, say, within a period of six months from the date of receipt a certified copy of this order.

The writ petition is allowed, in above terms.

Order Date :- 4.11.2015

Ajit/-