Delhi High Court
Jagat Narayan Prasad vs Union Of India & Ors on 14 January, 2016
Author: Sanjiv Khanna
$~03
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10546/2015
Date of decision: 14th January, 2016
JAGAT NARAYAN PRASAD ..... Petitioner
Through Mr. P.S. Khare, Advocate.
versus
UNION OF INDIA & ORS ..... Respondent
Through Mr. Jagjit Singh, Sr. Standing
Counsel with Mr. Preet Singh and Mr. Pranav
Aggarwal, Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
SANJIV KHANNA, J. (ORAL)
Petitioner Jagat Narayan Prasad impugns order dated 16th
October, 2014 passed by the Central Administrative Tribunal,
Principal Bench (Tribunal, for short). The impugned order dismisses
OA No.3724/2013 filed by the petitioner for release of Rs.8,01,463/-
with interest @ 18% per annum compounded.
2. The petitioner had joined Central Railway on 30 th January,
1976 and had retired as an employee of North-Central Railway on 31st
July, 2013. Pension order dated 19th July, 2013 was issued. An
amount of Rs.8,01,473/- was withheld and was shown as debited from
his total emoluments. The petitioner then filed the aforesaid OA that
the aforesaid adjustment was not permissible without issue of show
cause notice and there was violation of principles of natural justice.
3. The respondent North-Central Railway in their reply projected
a different picture and had pointed out that departmental enquiry was
initiated against the petitioner vide charge sheet dated 17th July, 2013,
issued prior to the petitioner's retirement. The petitioner had not
stated or revealed the said facts in the OA. The allegation in the
charge sheet pertains to the Scheduled Tribe certificate, which, it is
alleged was found to be fake on enquiry and investigation. The
petitioner, it is stated, relying on the certificate had claimed that he
belonged to Kharwar community, a Scheduled Tribe. However,
reports had been received from the Senior Welfare Inspector and Zila
Kalyan Padhadhikari stating that the petitioner did not belong to
Kharwar community (ST) and is Kamkar by caste, a backward caste.
4. The contention of the petitioner is that he was never served
with the said charge sheet on or before the date of retirement on 31 st
July, 2013, and, therefore, withholding of Rs.8,01,473/- was
unjustified and contrary to law.
5. This factual position disputed by the respondents, who claim
that charge sheet was issued on 17th July, 2013 by sending it to the
petitioner through registered post.
6. The impugned order of the Tribunal records the conflicting
stand of the parties and records that the charge sheet was issued prior
to the date of retirement, but the service was disputed.
7. The Tribunal in the impugned order has relied on the following
passage from Union of India and Others Vs. Dinanath Shantaram
Karekar & Ors. JT 1998 (6) SC1:-
"5. Lastly, in order to save the lost battle, a novel
argument was raised by the learned counsel for the
appellant. He contended that since the charge sheet as also
the show cause notice, at different stages of the
departmental proceedings, were despatched and had been
sent out of the office so that no control to recall it was
retained by the department, the same should be treated to
have been served on the respondent. It is contended that it is
the communication of the charge sheet and the show cause
notice which is material and not its actual service upon the
delinquent. For this proposition reliance had been placed on
decision of this Court in State of Punjab and others v. Balbir
Singh etc., AIR 1977 SC 629.
6. This decision has been misread, misunderstood and is
now being misapplied by the counsel for the appellants in
the instant case.
7. As would appear from the perusal of that decision, the
law with regard to "Communication" and not "Actual
Service" was laid down in the context of the order by which
services were terminated. It was based on a consideration of
the earlier decisions in State of Punjab v. Khemi Ram, AIR
1970; Bachhittar Singh v. State of Punjab, 1962 Supp.(3)
SCR 713 = AIR 1963 SC 395; State of Punjab v. Amar
Singh Harika, AIR 1966 SC 1313 and S. Pratap Singh v.
State of Punjab, (1964) 4 SCR 733 =AIR 1964 SC 72. The
following passage was quoted from S. Pratap Singh's
Judgment (supra):
"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.
(Emphasis supplied)"
The said observations are apposite and in our opinion would conclude
the limited issue raised.
8. Learned counsel for the petitioner submits that enquiry may be
expedited as retirement benefits have been withheld. Learned counsel
for the respondent, on the other hand, submits that in spite of repeated
letters, petitioner has not been appearing and, in fact, the letters have
been received back unserved. Learned counsel for the petitioner
states that he would appear before the Enquiry Officer B.K. Pateriya,
Divisional Commercial Inspector, Divisional Office, Jhansi on 8th
February, 2016 at 2.30 p.m.
9. Learned counsel for the petitioner has also drawn our attention
to the application for placing on record additional documents, as he
seeks to rely on a caste certificate dated 25th October, 1991 and states
that he would file this document before the authorities.
10. With the aforesaid observations, the writ petition is dismissed.
We clarify that we have not expressed any opinion on the merits of
the departmental enquiry and allegations, subject matter of the said
inquiry.
SANJIV KHANNA, J.
ASHUTOSH KUMAR, J.
JANUARY 14, 2016
NA
