Supreme Court of India
BIKASH BHUSHAN GHOSE AND ORS.versusM/S. NOVARATIS INDIA LIMITED AND ORS.
- Citation
- 2007 INSC 497
- Decided
- 27 April 2007
- Bench
- S B SINHA
Holding
The State of West Bengal was the appropriate Government; the reference under s.10(1)(c) was maintainable, and the High Court’s order setting aside the Tribunal’s award was reversed.
Summary
The appellants, workmen of Novartis India Ltd., were transferred from Calcutta to other locations and challenged the transfer orders as illegal and motivated by trade‑union activities. While a conciliation proceeding was pending, the employer terminated their services for not obeying the transfers. The dispute was referred by the State of West Bengal to the Third Industrial Tribunal under s.10(1)(c) read with s.2A of the Industrial Disputes Act, 1947. The Tribunal held the reference maintainable and ordered reinstatement with back wages. The Calcutta High Court, however, set aside the award, holding that West Bengal was not the appropriate Government to make the reference. The Supreme Court allowed the appeal, holding that the termination orders were served in Calcutta, the transfer orders had a direct nexus with the terminations, and a part of the cause of action arose in West Bengal, making the State the appropriate Government; consequently, the High Court’s judgment was set aside and the matter remitted for fresh consideration.
Issues considered
- Whether the State of West Bengal was the appropriate Government under s.10(1)(c) of the Industrial Disputes Act, 1947 to refer the dispute concerning termination of service of workmen transferred from Calcutta.
- Whether the reference made by the State of West Bengal to the Third Industrial Tribunal was maintainable.
Legislation cited
- Code of Civil Procedures. 21, s. 99
- Industrial Disputes Act, 1947s. 10(1)(c), s. 2A
- Suits Valuation Acts. 11
Subjects
Industrial disputeJurisdictionAppropriate GovernmentTermination of serviceTransfer ordersIndustrial Disputes ActCivil Procedure CodeCause of action
Judgment
BIKASH BHUSHAN GHOSE AND ORS. A
v.
MIS. NOVARATIS INDIA LIMITED AND ORS.
APRIL 27, 2007
[S.8. SINHA AND MARKANDEY KATJU, JJ.] B
Industrial Disputes Act, 1947-s. 10(1) (c) r/w s. 2A-Appropriate
- A Government to make Reference of dispute-Termination of employees for not
obeying transfer order-Workmen holding charge at Calcutta-Reference of C
dispute by State of West Bengal-Jurisdiction of-Held: Termination order
against employees was served upon them at Calcutta-Employees did not
join their duties at the transferred places-If transfer orders were set aside,
employees would be deemed to be continued to be posted in Calcutta-Thus,
legality of transfer orders having a direct nexus with the termination orders-
Also part ofcause ofarose in Calcutta-Thus, State of West Bengal appropriate D
Government to make reference.
Appellants-Workmen challenged their transfer orders since it was
issued with the ill-motive to victimize them. Appellant moved before the Labour
Commissioner, West Bengal for cancellation of termination order. During
pendency, respondent-employer terminatied the services of the appellants. E
Appellants raised an industrial dispute. State of West Bengal referred the
dispute for adjudication to Third Industrial Tribuna~ West Bengal Respondent
raised an objection that the State of West Bengal had no jurisdiction to make
reference. Tribunal held that the reference was maintainable and passed an
award. Respondent filed writ petition which was dismissed. However, the F
Division Bench of High Court without going into the merit of the matter held
that the State of West Bengal not being the appropriate Government with
regard to the dispute raised, had no jurisdiction to make the reference and
set aside the award of the tribunal as also the order of Single Judge. Hence
the present appeal.
G
Allowing the appeal and remitting the matter to High Court, the Court
HELD: 1.1 It is not dispute the orders the of termination were served
upon the appellants at Calcutta. The order of termination as against them
were passed for not obeying the orders of transfer. Therefore , the transfer
985 II
986 SUPREME COURT REPORTS [2007) 5 S.C.R.
A of the appellants had some nexus with the order of their termination form >( •
services. It cannot be said that the State of West Bengal was not the
appropriate Government. [Para ll I [989-G I
Workmen ofShri Rangavillas Motors (P) Ltd. & Anr. v. Shri Rangavilas
Motors (P) Ltd. and Ors., [1967] 2 SCR 528; Indian Cable Co. Ltd. v. Its
B Workmen, [1962] Supp 3 SCR 589 and Paritosh Kumar Pal v. State of Bihar
and Ors., (1984) LAB. I.C. 1254, referred to.
1.2. Referring to the provisions of the Code of Civil Procedure, it was
held that the employment of the workman would be a relevant factor for
determining the jurisdiction of the concerned. [Para 151 [991-B]
c
Indian Express Newspaper (Bombay) Pvt. Ltd. v. State of West Bengal,
(2005) -II-LLJ 333, referred to.
1.3. The Division Bench of High Court did not pose unto itself a correct
question of law. It is not in dispute that the appellants did not join their duties
D at the transferred places. According to them , as the orders of transfer were
illegal, their services were terminated for not complying therewith. The
assertion of the respondent that the appellant were relieved from job was
unilateral. If the orders of transfer were to be set aside, they would be deemed
to be continuing to be posted in Calcutta. Thus, the legality of the orders of
E transfer had a direct nexus with the orders of termination.
(Para 17) [992-A, B, C]
Om Prakash Srivastava v. Union ofIndia and Anr., (2006] 6 SCC 2007,
referred to.
F 1.4. A part of cause of action arose in respect whereof, the State of West
Bengal was the appropriate Government. It may be that in a given case, two
States may have the requisite jurisdiction in terms of clause (c) of sub-section
(l) of Section 10 of the Industrial Disputes Act. Assuming that other State
Governments had also jurisdiction, it would not mean that although a part of
cause of action arose within the territory of the State of West Bengal, it would
G have no jurisdiction to make the reference. [Para 18) [913-C, D]
1.5. If the provisions contained in the Code of Civil Procedure are given ... -
effect to, even if the Third Industrial Tribunal, West Bengal had no
jurisdiction, in view of provision contained in S. 21 of the Code of Civil
Procedure, unless respondent suffered any prejudice, they could not have
H questioned the jurisdiction of the Court. [Para 19) [993-D, E]
BIKASH BHUSHAN GHOSE v. NOV ARATIS INDIA LTD. (S.B. SINHA, J.] 987
,, ..
Kiran Singh and Ors. v. Chaman Paswan and Ors., AIR (1954) SC 340; A
MD. Army Welfare Housing Organisation v. Sumangal Services(p) Ltd., [2004]
9 sec, referred to.
1.6. 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 B
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. [Para 20)
~.
A
[995-B, C]
State of Punjab v. Harika, AIR 1966 SC 1313 and Ranjit Singh v. Union
of India, [2006) 4 SCC 153, referred to. c
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2201 of2007.
From the Final Judgment and Order dated 01.03.2006 of the High Court
at Calcutta in A.P.O.T. No. 469 of2003.
D
Pradip Ghosh and Rauf Rahim for the Appellants .
.... -1 Chander Uday Singh, N.K. Mehta, P.V. Dinesh, Sindhu T.P. and Radha
Rangaswamy for the Respondents.
The Judgment of the Court was delivered by E
S.B. SINHA, J. 1. Leave granted
2. Appellants were workmen of the Respondent company. They were
transferred to Siwan (Bihar), Farrukhabad (U.P.) and Karimganj (Assam) by
letters of transfer dated 3.I 0.1994. According to them, the said orders of
•" .... F
transfer were violative of the Memorandum of Undertaking dated 18.12.1989
and were issued with an ill-motive of victimizing them for their trade union
activities. As despite requests, the purported orders of transfer were not
revoked, they sought intervention of the Labour Commissioner, West Bengal
by a letter dated l.3.1995. Allegedly, a conciliation proceeding was initiated,
--- -J.
but during the pendency thereof, their services were terminated by Respondent G
Company by letters dated 15.4.1995. Contending that the said orders of
termination were unauthorized, arbitrary and illegal, as no domestic enquiry
was held prior thereto, they raised an industrial dispute.
3. The State of West Bengal, in exercise of its jurisdiction under Section
IO(l)(c) read with Section 2A of the Industrial Disputes Act, 1947 referred the H
988 SUPREME COURT REPORTS (2007] 5 S.C.R.
A following dispute for its adjudication to the Third Industrial Tribunal, West ~ "
Bengal.
"Whether the termination of service of (I) Shri Bikash Bhusan Ghosh
(2) Shri Pradip Kumar Mukherjee and (3) Shri Shyama Charan Mallick
is justified? What relief, if any, are they entitled to?"
B
4. Before the said Tribunal, inter-alia a contention was raised that the
State of West Bengal had no jurisdiction to make the reference. Parties to the
reference, however, adduced their respective evidences on merit of the matter. >
5. The question in regard to maintainability of the said reference was
C determined by the Tribunal in terms of an order dated 30.3.1999 holding the
same to be maintainable.
6. By reason of an Award dated 10.10.2002, the Tribunal opined that the
orders of termination passed against the appellants were illegal and they were
directed to be re-instated in service with back wages. Aggrieved by and
D dissatisfied with the said order, Respondent filed a Writ Petition before the
Calcutta High Court which was marked as W.P. No. 2495 of 2002. By a
Judgment and Order dated 11.7.2003, the said Writ Petition was dismissed. On
an intra-court appeal filed by the Respondents under clause 15 of the Letters
•
Patent of the Calcutta High Court, marked as G.A. No. 3157; a Division Bench
E of the High Court, however, without going into the merit of the matter held
that the State of West Bengal, being not the appropriate Government in
respect of the dispute raised by the appellants, had no jurisdiction to make
the reference and on that premise allowed the said appeal and consequently
set aside the Award made by the Tribunal as also the judgment and order of
the learned Single Judge.
F
7. Mr. Pradip Ghosh, learned senior counsel appearing on behalf of the
appellant, in support of this appeal, inter-alia would submit that the Division
Bench of the High Court committed a manifest error in passing the impugned
judgment in so far as it proceeded on the basis that no document was brought
G
on records to show that the appellants had raised a dispute in regard to the
orders of transfer passed against them which in fact had been done and the
same was pending before the conciliation officer. Our attention in this
connection has been drawn to a letter dated 23.3.1995 issued by Joint Labour
-
Commissioner, West Bengal to the Personnel Manager of Mis. Sandoz (I) Ltd.,
pre-decessor of the respondent Company which is in the following terms;
H
BIKASH BHUSHAN GHOSE v. NOVARATIS INDIA LTD. (S.B. SINHA, J.] 989
"With reference to the above subject, you are requested to kindly A
.., make it convenient to see the undersigned in this office on 12.04.1995
" at 3.00 p.m. for a discussion with the concerned representatives."
8. The learned counsel would contend that in the said conciliation
proceeding, the respondents did not participate, which was initiated on the
basis of a letter dated 1.3 .1995 addressed to the Labour Commissioner, B
Government of West Bengal by the appellants. It was furthermore submitted
that the Division Bench of the High Court, in arriving at the aforementioned
decision, failed to consider the decision of this Court in Workmen of Shri
... Rangavillas Motors (P) Ltd. & Anr. v. Shri Rangavilas Motors (P) Ltd. and
' Ors., [ 1967] 2 S.C.R 528 in its proper perspective.
c
9. Mr. Chander Uday Singh, learned senior counsel appearing on behalf
of the respondent, on the other hand, would contend that no conciliation
proceeding was pending in regard to the order of transfer as alleged or at all.
It was submitted that in fact, the appellants categorically stated before the
Industrial Tribunal that they would not question the orders of transfer, but D
only would question the orders of termination. Having regard to the fact that
the orders of transfer dated 3.10.1994 were given effect to by relieving the
:.. workmen of the charges they had been holding at Calcutta, they would be
1 deemed to have been attached to their transferred places and as they failed
to join, their services were lawfully terminated.
E
I0. As the Division Bench of the High Court did not enter into the merit
of the matter, we do not intend to deal with the questions as to whether any
conciliation proceedings was, in relation to the orders of transfer passed as
against the appellants, in fact pending before the Deputy Labour Commissioner,
West Bengal or not. Appellants, however, in our opinion could not have
questioned the orders of transfer in view of the nature of the industrial
F
- .... dispute referred to by the State of West Bengal for determination thereof by
the III Industrial Tribunal, West Bengal. The orders of transfer were, thus, not
in issue before the learned Tribunal.
11. It is, however, not disputed that the orders of termination were G
served upon the appellant at Calcutta. The orders of termination as against
y them, were passed for not obeying the orders of transfer. The transfer of the
appellants, therefore, had some nexus with the order of their termination from
services. It is, therefore, not correct to contend that the State of West Bengal
was not the appropriate government.
H
990 SUPREME COURT REPORTS (2007) 5 S.C.R.
A 12. In Shri Rangavillas Motors (P) Ltd (supra), the concerned workman
was engaged as a foreman. He was transferred from Bangalore to Krishnagiri. >< ""
He questioned the validity of the said order of transfer. The company initiated
disciplinary proceeding against him and he was removed from services. State
of Mysore made a reference. The validity of the said reference was questioned.
B This Court opined;
".... This takes us to the other points. Mr. O.P. Malhotra strongly urges
that the State Government of Mysore was not the appropriate
Government to make the reference. He says that although the dispute
started at Bangalore, the resolution sponsoring this dispute was passed ,. !
in Krishnagiri, and, that the proper test to be applied in the case of
c individual disputes is where the dispute has been sponsored. It seems
to us that on the facts of this case it is clear that there was a separate
establishment at Bangalore and Mahalingam was working there. There
were a number of other workmen working in this place. The order of
transfer, it is true, was made in Krishnagiri at the head office, but the
D order was to operate on a workman working in Bangalore. In our view
the High Court was right in holding that the proper question to raise
is : where did the dispute arise ? Ordinarily, if there is a separate
establishment and the workman is working in that establishment, the
dispute would arise at that place. As the High Court observed, there
should clearly be some nexus between the dispute and the territory
E of the State and not necessarily between the territory of the State and
the industry concerning which the dispute arose ...... "
13. Referring to a decision of this Court in Indian Cable Co. Ltd. v. Its
Workmen, (1962) Supp. 3 SCR 589, it was held that the subject matter of the
F dispute, substantially arose within the jurisdiction of the Mysore Government.
14. We may notice that in Paritosh Kumar Pal v. State of Bihar and
Ors., ( 1984) LAB. LC. 1254, a full Bench of the Patna High Court held;
"13. Now an incisive analysis of the aforesaid authoritative enunciation
of law would indicate that three clearcut principles or tests for
G
determining jurisdiction emerge, therefrom. For clarity these may be
first separately enumerated as under:
(i) Where does the order of the termination of services operate?
(ii) Is there some nexus between the industrial dispute arising from
H termination of the services of the workman and the territory of
BIKASHBHUSHANGHOSEv. NOVARATISINDIALTD. [S.B. SINHA, J.] 991
1
. );
the State?
(iiO That the well-known test of jurisdiction of a civil Court including
A
the residence of the parties and the subject matter of the dispute
substantially arising therein would be applicable."
15. Referring to the provisions of the Code of Civil Procedure, it was
held that the situs of the employment of the workman would be a relevant
B
factor for determining the jurisdiction of the court concerned.
y 16. The High Court, however, has relied upon a decision of the said
4 Court in Indian Express Newspaper (Bombay) Pvt. Ltd. v. State of West
Bengal, (2005) -11-LLJ 333], wherein it was held; c
"40. The basis of the findings of the learned single Judge in the first
..- writ application and that of the Tribunal thereafter on remand and the
subsequent findings of the learned single Judge on the second writ
application is that when Mr. Sam pat's services were terminated he was
stationed in the Calcutta office of the Newspaper company. While Mr. D
Sam pat was no doubt served with the order of termination of his
service in Calcutta, we are constrained to say that the same would not
vest the State Government in West Bengal with authority under Section
~
• 2(a)(ii) of the Industrial Disputes Act to make a reference under
Section 10 of the said Act. Firstly, at the said point of time the
Calcutta office of the Newspaper company no longer had control over E
Mr. Sampat whose services had been transferred to Bombay and it
was the Bombay office which had control over his services. That Mr.
Sam pat was in Calcutta and was served with the notice of the order
of termination of his service in Calcutta is only because of the fact
• ~ -J
that he had chosen not to comply with the order transfer dated
August I, 1988, by which he had been transferred to Bombay with
F
_, effect from August 5, 1988, and had not also challenged the same
before any forum. Mr. Sampat may have made representations to the
Bombay office with regard to such order of transfer, but the same was
never the subject-matter of any judicial or quasi-judicial proceeding
and it is only after he was served with the order of termination of his G
..
-· service that Mr. Sampat raised a dispute in respect thereof. In our
view, notwithstanding the fact that Mr. Sampat had been served with
such order in Calcutta, his situs of employment being Bombay, he
ought to have raised an industrial dispute relating to the termination
of his services in Bombay and the Government of Maharashtra would
• H
992 SUPREME COURT REPORTS (2007] 5 S.C.R.
A have been the appropriate Government to make a reference under
Section I0 of the aforesaid Act in respect of such dispute."
17. With respect to the Division Bench, we do not think that it has
posed unto itself a correct question of law. It is not in dispute that the
appellants· did not join their duties at the transferred places. According to
B them, as the orders of transfer were illegal, their services were terminated for
not complying therewith. The assertion of the respondent that the appellant
were relieved from job was unilateral. If the orders of transfer were to be set
aside, they would be deemed to be continuing to be posted in Calcutta. The ~
~
legality of the orders of transfer, thus, had a direct nexus with the orders of .:
termination. What would constitute cause of action, has recently been
c considered by this Court in Om Prakash Srivastava v. Union of India and
Anr., (2006] 6 SCC 207 wherein it was held;
"12. The expression "cause of action" has acquired a judicially settled - '
meaning. In the restricted sense "cause of action" means the
D circumstances forming the infraction of the right or the immediate
occasion for the reaction. In the wider sense, it means the necessary
conditioPs for the maintenance of the suit, including not only the
infraction of the right, but also the infraction coupled with he right
itself. Compendiously, as noted above, the expression means very
t '
fact, which it would be necessary for the plaintiff to prove, if traversed,
E in order to support his right to the judgment of the court. Every fact,
which is necessary to be proved, as distinguished from every piece
of evidence, which is necessary to prove each fact, comprises in
"cause of action". (See Rajasthan Hjgh Court Advocates' Assn. v.
Union of India, (200 l] 2 SCC 294]
F 13. The expression "cause of action" has sometimes been employed
to convey the restricted idea of facts or circumstances which constitute
... -
either the infringement or the basis of a right and no more. In a wider
and more comprehensive sense, it has been used to denote the whole
bundle of material facts, which a plaintiff must prove in order to
G succeed. These are all those essential facts without the proof of
which the plaintiff must fail in his suit (See Gurdit Singh v. Munsha ..
Singh, [ 1977] t sec 79 t J ',-
14. The expression "cause of action" is generally understood to mean
a situation or state of facts that entitles a party to maintain an action
H in a court or a tribunal; a group of operative facts giving rise to one
BIKASH BHUSHAN GHOSE v. NOVARA TIS INDIA LTD. (S.B. SINHA. J.] 993
or more bases of suing; a factual situation that entitles one person to A
... )I
obtain a remedy in court from another person (see Black's Law
Dictionary). In ~troud's Judicial Dictionary a "cause of action" is
stated to be the ~ntire set of facts that gives rise to an enforceable
claim; the phrase comprises every fact, which if traversed, the plaintiff
' to obtain judgment. In Words and Phrases (4th
must prove in ortler
Edn.) the meaning attributed to the phrase "cause of action" in common B
legal parlance is existence of those facts, which give a party a right
to judicial interference on his behalf. (See Navinchandra N. Majithia
v. State of Maharashtra, [2000] 7 SCC 640 : [200 I) SCC (Cri) 215]"
•
18. Judged in that context also, a part of cause of action arose in C
Calcutta in respect whereof, the State of West Bengal was the appropriate
government.' It may be that in a given case, two States may have the requisite
jurisdiction in terms of clause (c) of sub-section (I) of Section I 0 of the
Industrial Disputes Act. Assuming that other State Governments had also
jurisdiction, it would not mean that although a part of cause of action arose
within the territory of the State of West Bengal, it would have no jurisdiction D
to make the reference.
19. There is another aspect of the matter which cannot be lost sight off.
If the provisions contained in the Code of Civil Procedure are given effect to,
even ifthe Third Industrial Tribunal, West Bengal had no jurisdiction, in view
of the provisions contained in Section 21 of the Code of Civil Procedure, E
unless respondent suffered any prejudice, they could not have questioned
the jurisdiction of the Court. In Kiran Singh and Ors. v. Chaman Paswan and
Ors., A.LR. (1954) SC 340), this Court held;
(6) ... If the question now under consideration fell to be determined
only on the application of general principles governing the matter, F
there can be no doubt that the District Court of Monghyr was 'coram
non judice' and that its judgment and decree would be nullities. The
question is what is the effect of section 11 of the Suits Valuation Act
on this position.
(7) Section 11 enacts that notwithstanding anything in section 578 of
G
the Code of Civil Procedure an objection that a Court which had no
jurisdiction over a suit or appeal had exercised it by reason of over-
valuation or under-valuation, should not be entertained by an appellate
Court, except as provided in the section. Then follow provisions as
H
994 SUPREME COURT REPORTS (2007) 5 S.C.R.
A to when the objections could be entertained, and how they are to be
dealt with. The drafting of the section has come in - and deservedly
- for considerable criticism; but amidst much that is obscure and
confused, there is one principle which stands out clear and
conspicuous. It is that a decree passed by a Court, which would have
had no jurisdiction to hear a suit or appeal but for over-valuation or
B under-valuation, is not to be treated as, what it would be but for the
section, null and void, and that an objection to jurisdiction based on
over-valuation or under-valuation, should be dealt with under that
section and not otherwise. )
The reference to section 578, now section 99, C.P.C. in the opening
c words of the section is significant. That section, while providing that
no decree shall be reversed or varied in appeal on account of the
defects mentioned therein when they do not affect the merits of the
case, excepts from its operation defects of jurisdiction. Section 99
therefore gives no protection to decrees passed on merits, when the
D Courts which passed them lacked jurisdiction as a result of over-
valuation or under-valuation. It is with a view to avoid this result that
section 11 was enacted. It provides that objections to the jurisdiction
of a Court based on over-valuation or under-valuation shall not be
entertained by an appellate Court except in the manner and to the
extent mentioned in the section. It is a self-contained provision
E complete in itself, and no objection to jurisdiction based on over-
valuation or under-valuation can be raised otherwise than in accordance
with it.
With reference to objections relating to territorial jurisdiction,
section 21 of the Civil Procedure Code enacts that no objection to the
F place of suing should be allowed by an appellate or revisional Court,
unless there was a consequent failure of justice. It is the same principle
that has been adopted in section 11 of the Suits Valuation Act with
reference to pecuniary jurisdiction. The policy underlying sections 21
and 99, C.P.C. and section 11 of the Suits Valuation Act is the same,
G namely, that when a case had been tried by a Court on the merits and
judgment rendered, it should not be liable to be reversed purely on
technical grounds, unless it had resulted in failure of justice, and the
policy of the legislature has been to treat objections to jurisdiction
both territorial and pecuniary as technical and not open to
consideration by an appellate Court, unless there has been a prejudice
H
BIKASH BHUSHAN GHOSE v. NOVARA TIS INDIA LTD. [S.B. SINHA. J.] 995
on the merits. The contention of the appellants, therefore, that the A
decree and judgment of the District Court, Monghyr, should be treated
as a nullity cannot be sustained under section 11 of the Suits Valuation
Act."
[See also MD. Army Welfare Housing Organisation v. Sumangal Services
(PJ Ltd., (2004J 9 sec 6I 9J B
20. 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 C
State of Punjab v. Amar Singh Harika, A.LR. ( 1966) SC 1313, this Court held;
"(I I) ... 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, D
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 E
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 F
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 G
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;
H
996 SUPREME COURT REPORTS (2007] 5 S.C.R.
A 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
B 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, )
c 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
D effect until the respondent came to know about it on the 28th May
1951."
{See also Ranjit Singh v. Union of India, [2006] 4 SCC 153]}
21. For the reasons aforementioned, the impugned judgment of the
E Division Bench of the High Court cannot be sustained. It is set aside
accordingly. The matter is remitted back to the High Court for consideration
of the Letters Patent Appeal on merit. Appeal is allowed. However, in the facts
and circumstances of the case, there shall be no order as to costs.
K.K.T. Appeal allowed.
.... ..
'
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