State Of Punjab vs Amar Singh Harika on 6 January, 1966

Supreme Court of India

State Of Punjab vs Amar Singh Harika on 6 January, 1966
Bench: P.B. Gajendragadkar(Cj), K.N. Wanchoo, M. Hidayatullah, V. Ramaswami
CASE NO.:
Appeal (civil) 938 of 1964

PETITIONER:
STATE OF PUNJAB

RESPONDENT:
AMAR SINGH HARIKA

DATE OF JUDGMENT: 06/01/1966

BENCH:
P.B. GAJENDRAGADKAR(CJ) & K.N. WANCHOO & M. HIDAYATULLAH & V. RAMASWAMI &
P. SATYANARAYANARAJU

JUDGMENT:

JUDGMENT 1966 AIR (SC) 1313 The Judgment was delivered by GAJENDRAGADKAR, C.J Per
Gajendragadkar, C.JThe respondent, Amar Singh Harika, who was an Assistant Director, Civil
Supplies, in the Patiala and East Punjab States Union, was dismissed from service by an order
purported to have been passed on 3 June 1949; this order was, however, communicated to him by
the Chief Secretary, Pepsu Government, on 2/3 January 1953. The respondent filed a suit against
the appellant, the State of Punjab, and alleged that the impugned order, whereby he was dismissed
from service, was invalid, inoperative and illegal. This suit was instituted by the respondent in the
Court of Subordinate Judge, II Class, Patiala. The respondent pleaded that the impugned order had
been passed without holding any enquiry, and that the procedure adopted by the appellant in
respect of the said enquiry was wholly illegal and invalid. That is why he claimed a declaration that
despite the said order of dismissal, he continued to be an employee of the appellant and to hold his
position as Assistant Director, Civil Supplies. As a consequential relief, the respondent also asked for
an order calling upon the appellant to post him as Assistant Director, Civil Supplies, or to some
other post of the same status.

This claim was resisted by the appellant on several grounds. The appellant urged that the suit filed
by the respondent was incompetent in law. It also alleged that the impugned order was valid, legal
and binding on the respondent; and it raised the plea of limitation.

On these pleadings, the learned trial Judge framed three issues. They were :

(1) Is the dismissal of the plaintiff from service of the defendant illegal, void and ultra vires ?

(2) Is the suit within time ?

(3) Is the suit maintainable ?

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 State Of Punjab vs Amar Singh Harika on 6 January, 1966

The first two issues were answered by the trial Judge in favour of the respondent. He however, held
that the suit filed by the respondent was not maintainable in law with the result that the
respondent's claim was dismissed with costs.Against the decree passed by the learned trial Judge,
the respondent preferred an appeal in the Punjab High Court. The High Court has upheld the
finding of the learned trial Judge in favour of the respondent on the first two issues, and has held
that the dismissal of the respondent was ultra vires, void and illegal and that the respondent's suit
was within time. In regard to the finding of the learned trial Judge that the respondent's suit was not
maintainable, the High Court has taken a contrary view; it has held that the suit was maintainable.
In the result, the respondent's claim has been decreed with costs throughout. It is this appellate
decree which is challenged before us by Sri Bishan Narain on behalf of the appellant in the present
appeal which has been brought to this Court by special leave.

Before dealing with the points raised by Sri Bishan Narain for our decision in the present appeal, it
is necessary to state the material facts leading to the present litigation. The respondent was
appointed as a permanent Assistant Director, Civil Supplies Patiala, on 15 June 1948. Soon
thereafter, he was suspended on 5 July 1948. The order passed by the Prime Minister, Patiala, which
suspended him, directed that an enquiry committee consisting of Raja Shiv Dayal Singh, Sardar
Rajwant Singh and Babu Banwari Lal should enquire into the charges framed against him. The
substance of charges thus framed against him was that he had abused his powers by issuing certain
permits for the procurement of 1, 000 maunds of bajra. On 12 July 1948 the respondent made a
representation that Raja Shiv Dayal Singh, who had been appointed the chairman of the said
enquiry committee, was disqualified to sit on the enquiry committee, because the transaction which
had given rise to the charge against the respondent, had been entered into under his directions.
Thereupon, Raja Shiv Dayal Singh was removed from the chairmanship and Sodhi Sukhdev Singh,
Legal Remembrancer, was appointed in his place. Later Sodhi Sukhdev Singh became a member of
the enquiry committee, and Sardar Kartar Singh took the place of the chairman. The committee
served a questionnaire on the respondent, and this questionnaire purported to contain several
charges against him. This questionnaire was served on the respondent on 8 September 1948, and
the respondent submitted his reply thereto on 22 September 1948. On 2 October 1948, the
committee submitted its report. It found that the respondent was guilty of the charges framed
against him. In regard to the question of punishment, it left the matter to be decided by the
Government.It appears that the respondent had no knowledge of the fact that the committee had
submitted its report; and so, he went on making representation to the Government in regard to the
said charges. On 16 December 1948, he wrote to the Chief Secretary, Pepsu Government, Patiala,
and complained that he had learnt from the Legal Remembrancer that the committee had submitted
a report, and yet he had not received a copy of the said report. By this time, Patiala State had merged
in the Patiala and East Punjab States Union.

It seems that the Chief Secretary was not at all satisfied with the report made by the committee
against the respondent, and he recommended that the said report should be handed over to a Judge
of the High Court or a member of the judicial committee for his opinion after taking such further
evidence as he may consider necessary in the interest of justice. The Prime Minister, however, did
not agree with this recommendation. On 13 February, 1949, the Chief Secretary again urges the
Prime Minister to consider the matter carefully and he expressed his belief that for the charges held

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 State Of Punjab vs Amar Singh Harika on 6 January, 1966

proved against the respondent, the really guilty persons were Raja Shiv Dayal Singh and the
ex-Prime Minister of Patiala himself. According to the Chief Secretary, the respondent had merely
been made a scapegoat. On receiving this strongly worded letter from the Chief Secretary, the Prime
Minister decided to refer the matter to the Public Service Commission. The Commission agreed with
the report and recommended that exemplary punishment should be meted out to the respondent
and that he should be dismissed form Government service from the date of his suspension.

Thereafter, on 2/3 May, 1949, the respondent received a communication from the Government of
Pepsu, Home Department in which it was suggested to him that in view of the definite finding of the
enquiry committee holding him guilty of the charges levelled against him, he may exercise his option
to resign. It was however, added that even if he resigned, it should not be taken to imply any
commitment on the part of the Government to accept the same. Pursuant to this letter the
respondent tendered his resignation on 6 May 1949. Notwithstanding his resignation the appellant
proceeded to pass an order of dismissal against him on 3 June 1949. This order purported to take
effect from the date of respondent's suspension which was 5 July 1948. It is significant that though a
copy of this order was forwarded to six persons noted thereunder, no copy of the same was sent to
the respondent himself.On 29 January 1951, the respondent made a representation to the
Government of Pepsu in which he asked for a copy of the report of the committee, a copy of the
allegations on which the said report was based and a copy of the chargesheet to show cause why the
respondent should not suffer the punishment as proposed by the Government before taking final
action in the matter. He also prayed for a reasonable opportunity to show cause against the said
punishment. In reply, the respondent was informed on 16 April 1951, by the Pepsu Government that
his representation could not be considered in view of the fact that he had tendered resignation.
However, it was on 28 May 1951, that the respondent was informed by Bishan Chand, Assistant
Comptroller, Pepsu, that the record of the office showed that he had been dismissed from
Government service with effect from the date of this suspension. It is on this date that the
respondent came to know about his dismissal for the first time.

Then followed further correspondence between the respondent and the appellant. When, however,
the respondent found that all his pleas failed, he withdrew his resignation on 22 August 1952. Last
came the order passed on 2/3 January 1953, by the Chief Secretary to Government, Pepsu. This
order informed the respondent that his last application dated 20 August 1952, requesting for
reinstatement on the ground that his dismissal was unlawful and unjust, was rejected and that
Government found it impossible to reopen his case. On receiving this order, the respondent filed the
present suit on 20 April 1954.

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

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 State Of Punjab vs Amar Singh Harika on 6 January, 1966

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.The next question is whether the High Court was right in holding that the respondent's
suit is competent. It 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 (Administrative) Ordinance, 2005 BK (16 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 States 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-sec. (2), the Rajparmukh, or any authority authorized in this
behalf by the Rajparmukh, may -

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 State Of Punjab vs Amar Singh Harika on 6 January, 1966

(a) regulate the recruitment and conditions of service of persons appointed to public services and to
posts in connexion with the affairs of the Government, or

(b) make rules or regulation for the conduct of Government servants who are members of the Public
services or are holding posts in connexion 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 authorize
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 one ( ? ) is held to be incompetent."

Therefore, we are not satisfied that Sri 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.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 a 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 canceled 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 1, 000 maunds of bajra were issued to a bogus
representative, it should have been suggested that, in cancelling the said permits, the respondent
had done something which was wrong. Another question seems to suggest that when the respondent
in self- defense 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 chargesheet itself discloses
a serious infirmity in the approach adopted in initiating the proceedings against the respondent.

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

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 State Of Punjab vs Amar Singh Harika on 6 January, 1966

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 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 the respondent,
have contravened the safeguards guaranteed by S. 14(2) of the Ordinance.The result is, the appeal
fails and is dismissed with costs.

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