R.S. Misra vs Union Of India & Ors.
2016 Latest Caselaw 1712 Del

$~22
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+             W.P.(C) 1795/2016, CM Nos.7688-91/2016

                                         Date of decision: 2nd March, 2016
       R.S. MISRA                                     ..... Petitioner
                           Through:      Mr. K.C.Mittal with
                                         Ms. Ruchika Mittal, Advs.

                           versus

       UNION OF INDIA & ORS.                         ..... Respondents
                     Through:            Mr. S.Rajappa with
                                         Mr. A.P.Salini, Advs.

       CORAM:
       HON'BLE MR. JUSTICE SANJIV KHANNA
       HON'BLE MR. JUSTICE NAJMI WAZIRI

       SANJIV KHANNA, J. (ORAL)

1. We have heard the learned counsel appearing for the petitioner at some length.

2. Impugned order passed by the Central Administrative Tribunal, Principal Bench dated 4th November, 2015 dismisses OA No.2878/2014 and holds that the petitioner is not entitled to pension as his services were terminated by order dated 24th January, 2006 under Article 81(B) of Kendriya Vidyalaya School Education Code (in short, KVCE Code). The impugned order traces and narrates the relevant details including history of earlier litigation before the petitioner was reinstated in service. The aforesaid order under Article 81(B) of KVCE Code was passed after complaints and letter post reinstatement were received from the Principal of the concerned Vidyalaya at Imphal, Manipur and the Secretary of the Manipur State Government on allegations of moral turpitude involving sexual offences and sexual behaviour towards girl students of Class XI, Arts.

3. Learned counsel for the petitioner submits that the order under Article 81(B) of the KVCE Code though dated 24th January, 2006, was served only on 1st February, 2006 and therefore the petitioner would be governed by Rule 9 of the CCS Pension Rules, 1972; and at best, the respondents could have withheld a part pension, but cannot deny complete pension to the petitioner. The petitioner relies on the decision of the Supreme Court in Bikash Bhushan Ghose & Anr. Vs. Novartis India Ltd. & Anr. (2007) 2 SCC (L&S) 242, wherein it has been held that the order of termination takes effect from the date of communication of the said order.

4. We begin by quoting paragraph 18 from Bikash Bhushan Ghose (supra), which reads as under:-

"18. Yet again appellants being workmen, their services were protected in terms of the Industrial Disputes Act 1947. If their services were protected, an order of termination was required to be communicated. Communication of an order of termination itself may give rise to a cause of action. An order of termination takes effect from the date of communication of the said order. In State of Punjab vs. Amar Singh Harika, this Court held;

"(11) ... 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 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 1951."

A reading of the said paragraph would show that the dispute therein related to a workman whose service was protected under the Industrial Disputes Act, 1947. The said paragraph quotes from an earlier decision of the Supreme Court in State of Punjab vs. Amar Singh Harika, AIR 1966 SC 1313 which reflects on the purpose and purport of communication of an order of punishment or termination of service and observes that the High Court was right in holding that the order of dismissal passed on 3rd June, 1949 could not be said to have taken effect until the respondent came to know about it on 28th May, 1951.

5. However, in the facts of the present case, we do not think the above judgments are relevant. The petitioner had challenged the order under Article 81(B) of the KVCE Code in OA No.996/2006 which was dismissed by final order and judgment dated 24th July, 2007. The said order refers to various contentions and issues raised by the petitioner challenging the order under Article 81 (B) by resort to a summary enquiry, seven days before the petitioner was to retire on 31st January, 2006. One of the contentions raised before the Tribunal was that the order of termination was served upon the petitioner on 1st February, 2006, which was post his retirement on 31st January, 2006 and therefore there was no effective departmental penalty. The said argument was rejected by the Tribunal as misconceived. Paragraph 22 of the Tribunal's order refers to the judgment of the Supreme Court in the case of Amar Singh Harika (supra) which has been quoted in Bikash Bhushan Gosh (supra). But the contention was rejected by the Tribunal after referring to the Constitutional Bench decision in the case of UOI vs. Dinanath Shantaram Karekar, 1998 SCC ( L&S) 1837, in the following words:-

"23. In our considered view, what is required in case of valid service of an order of dismissal either it should be published or communicated to the concerned but in the instant case the facts as taken cognizance of by the Constitution Bench the respondent therein was not even aware of the report submitted making an investigation. Even the chargesheet etc. have not been served upon the respondent. As such in the circumstances it was ruled that the order is not communicated. However, insofar as communication is concerned, in Union of India v. Dinanath Shantaram Karekar, 1998 SCC (L&S) 1837, the following observations have been made:

"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 SC 214; Bachhittar Singh v. State of Punjab, 1962 Supp (3) SCR 713 : AIR 1963 SC 395; State of Punjab v. Amr Singh Harika, AIR 1966 SC 1313 and S. Partap 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."

8. It was in this background that in cases where services are terminated or a person is dismissed from service, communication of the order and not its actual service was held to be sufficient. But this principle cannot be invoked in the instant case".

24. Having regard to the above, the Constitution Bench in S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 has also held that communication would not necessarily be actual service but once an order has been sent out of the jurisdiction of the concerned authority it would amount to communication. The aforesaid finding has been reiterated by the Apex Court in D.D.A. v. H.C. Khurana, 1993 SCc (L&S) 736.

25. A decision is an authority for what it holds in law. The ratio decidendi of a Constitution Bench decision or any decision having a binding precedent value under Article 141 of the Constitution of India is the law discerned and not what could be gathered from the judgment. In this view of the matter though publication and communication are the, conditions precedent for effectiveness of an order, yet the aspect of communication has not been gone into by the Constitution Bench in Amar Singh (supra). This has been dealt with and a ratio decidendi arrived at in S, Pratap Singh (supra) makes it no more res integra that if an order leaves the domain and goes out of the control of the competent authority, where there are no prospects of its being altered or being interfered in any manner, it amounts to communication whether actual service is made or not. The aforesaid dicta would not only hold good for the chargesheet but also for an order of dismissal as well. In such view of the matter, we find from the record that once the order of dismissal has been passed against applicant it was delivered through messenger but as he was not found on 24.1.2006 a speed post was sent on 24.1.2006 and in the matter of presumption three days is attributed to the speed post to reach the destination within Delhi and it is deemed to have been served upon applicant on 27.1.2006, i.e., much before his retirement on attaining the age of superannuation on 31.1.2006. In our considered view we have no hesitation to rule that the order of dismissal dated 24.1.2006 was communicated to applicant much before his date of superannuation on 31.1.2006. As such, the plea raised by Shri G.D. Gupta cannot be countenanced in law. "«

6. The aforesaid paragraph also alludes to relevant factual aspects; that the order dated 24.1.2006 was sent through a special messenger but could not be delivered on the petitioner as he could not be found. The order was thereafter sent by speed post on 24.1.2006. In normal course it should have been served on 27.1.2006, i.e., before the respondent's superannuation on 31.1.2006. The aforesaid findings are clearly against the petitioner.

7. The petitioner had challenged the finding of the Tribunal in order dated 24th July, 2007 in WP(C) No.3902/2008 which was dismissed vide order dated 10th July, 2009. The petitioner had thereafter preferred a Review Petition before the High Court which too was dismissed vide order dated 23rd August, 2009. The petitioner had thereafter filed a Special Leave Petition (C) against these two orders passed by the High Court but the same was dismissed on 12.3.2010.

8. Read in this light it is clear to us that the findings recorded in the order dated 24.7.2007 in OA No.996/2006 on the question of effective date of the order under Article 81(B) of the KVSE Code, is final and conclusive. The petitioner cannot now raise the same issue all over again. The findings recorded in the earlier proceedings in O.A. No. 996/2006 was to operate as res judicate and bind the petitioner.

9. The writ petition being without merit is dismissed.

SANJIV KHANNA, J

NAJMI WAZIRI, J MARCH 02, 2016/ak