1975 Supreme(SC) 389

SUPREME COURT OF INDIA
A. ALAGIRISWAMI, P.K. GOSWAMI AND N.L. UNTWALIA JJ.
State of Punjab and others, Appellants
Versus
Balbi Singh etc. etc., Respondents.
Civil Appeals Nos. 518-530 of 1975, D/- 6-10-1975. 630
Advocates appeared
Mr. O. P. Sharma, Advocate (In all the Appeals), M/s. V. C. Mahajan - In C. A. No. 518 of 1975; M/s. Kapil Sibal - In C.A. Nos.529-530 of 1975 and Mr. N. S. Das Bahl - In C. A. Nos. 519-523, Advocates, for Appellants; Mr. M. N. Phadke, Sr. Advocate, (Mrs. Archana Kumar, R. Agnihotri and P. C. Bhartari, Advocates with him), for Respondents in C. A. No. 526 of 1975) - K. J. John and M. R. Agnihotri, (In C. A. Nos. 524, 527 and 528) - K. J. John and M. R. Agnihotri, Advocates and M/s P. C. Bhartari, Advocate in all the appeals, for Respondents (In C. A. No. 518 of 1975); M/s. S. K. Mehta, K. R. Nagaraja, M. Qamaruddin and P. N. Puri, Advocates, of M/s. K. L. Mehta & Co., Advocates, for Respondents (In C. A. No. 530 of 1975).

Headnote:

Buildings and Roads Branch Rules 1960 - Constitution of India, 1950 - Article 311 (2) - Retired from service – Employment and service - Whether view of High Court that orders being administrative in nature were not laws within the meaning of Act and hence were not saved by Section 88 is correct - Whether they remained ineffective and inoperative because they were not communicated to the respondents - Whether sand granted by ruler who was an absolute monarch and which State after independence of India came to be merged in the State was a purely executive act or a law within the meaning of Article 372 of Constitution – Respondents were promoted and appointed on officiating basis as Sub-Divisional Officers in the Punjab Public Works Department on various - Respondents were so appointed - Respondents were promoted respectively - Respondent was working as Planning Assistant-cum-Draftsman while the other respondents were Overseers before they were appointed as officiating Sub Divisional Officers - By the impugned order then Government of erstwhile Punjab State reverted them to their original rank - Orders of their revision were challenged by the said respondents on ground that they were governed by the Punjab Service of Engineers Buildings and Road Branch Rules, 1942 - They claimed that they had become automatically confirmed as members of the service under the said Rules and could not be reverted without complying with the provisions of Article 311 (2) of Constitution of India and the other statutory Rules relating to disciplinary matters - This was the only point which succeeded before learned single Judge and he allowed all the writ applications it appears without fully appreciating distinction of facts of the various cases for the acceptance of this ground - Respondent was appointed as temporary Assistant Engineer on completion of his six months training period with effect from December - His service was terminated by then Punjab Government by order on the ground of his having been found unsuitable for appointment to P. S. E. Class II also relied upon 1942 Rules before learned single Judge and succeeded – Held, In court view once an order is issued and it is sent out to concerned government servant it must be held to have been communicated to him no matter when he actually received it - Applying the principles of law aforesaid court find in this case that the orders went out of the control of the authority which had passed that order when copies of the orders were forwarded to the Accountant General and the Chief Engineer - In any event court think that orders were from the office of the Chief Engineer - It is one thing to say that in the case of dismissal or the like the order becomes effective only after it is received by officer concerned and a different thing to say that an order has no effect at all before it is communicated in sense of receipt of order by the concerned officer - In sense court have said above the orders were communicated to all the respondents - They became effective as soon as they were sent out - And for purposes of Section 83 of Act the respondents must be deemed to be holding the posts to which they were reverted - Inquiry Officer appointed by the Commissioner Division prior to the re-organization of State cannot be taken to be the Inquiry Officer appointed by the Commissioner Division after November as there is no provision in Punjab re-organization Act where under the proceedings for disciplinary action against a public servant who is allocated to a State other than one in which the proceedings are pending could be continued by Inquiry Officer already appointed nor could such Inquiry Officer submit his report to corresponding authority in State to which the public servant is allocated - Shorn of the complications of other facts if the Inquiry Officer was appointed by the Commissioner of a Division which was a part of the undivided State and on re-organization becomes a part of the new State disciplinary proceedings started earlier can undoubtedly be continued and concluded without a fresh order of starting a disciplinary proceeding - Court therefore hold that view taken by High Court that the orders were still-born and in-effective because they were received by respondents on is not correct - Court were given to understand at the Bar that none of the respondents was reverted pursuant to the impugned order – Court asked the parties to ascertain the correct position and file their statements - On behalf of Government court have been informed that they will not claim any refund of salaries paid to respondents for the period they have worked as officiating Sub-Divisional Officers in the Department - But they claimed that the respondents were not working as such after the reversion order and before the High Court judgment and hence they are entitled to get back the difference of salary paid to the respondents for the period they have not worked as Sub-Divisional Officers and had worked only as Overseers and Draftsmen in their substantive posts - Difference of salary for the intervening period between order of reversion and High Court judgment was paid to them subject to furnishing of the bank guarantee - On other hand it is claimed on behalf of the respondents that even during those periods they were working had gone on leave while continuing in such posts - Order accordingly