Court No. - 58
Case :- WRIT - A No. - 17450 of 2018 Petitioner :- Rahul Kumar Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare, Senior Advocate Counsel for Respondent :- A.S.G.I.,Yogendra Kumar
Hon'ble Ashwani Kumar Mishra,J.
Petitioner was recruited as a Constable (GD) in Indo Tibetan Border Police Force in the year 2014. It appears that on 7.2.2016, petitioner proceeded on normal leave for 12 days and apparently as he fell ill, he could not join. The authorities, in such circumstances, proceeded to pass an order of termination dated 18th December, 2017. This order as well as all other notices sent prior to it have been served upon petitioner at his Village Dahkwara, Post Jamna Khas, Tehsil Amroha, District Jyotiba Phule Nagar, U.P. Petitioner appears to have preferred an appeal against this order, which has also been rejected on the ground that petitioner has filed his appeal beyond a period of 90 days. This order is also addressed to the petitioner and has been served upon him at Amroha in U.P. The order of termination as well as the order refusing to entertain petitioner's appeal on merits is challenged in the present writ petition.
Learned counsel for the respondents, however, objects to the entertainability of the writ petition on the ground that no part of cause of action has arisen within the territorial limits of this Court. It is stated that the authorities, who have passed the order, are stationed in Uttarakhand, and therefore, this Court has no jurisdiction. Learned counsel for the respondents has also placed reliance upon Larger Bench judgment of this Court in Rajendra Kumar Mishra Vs. Union of India and others, (2004) 1 UPLBEC 108 as well as a Division Bench judgment of this Court in M/s Deeptiman Logistics Pvt. Ltd. and Another Vs. Union of India and others, 2010 (4) ADJ 148. Reliance is also placed upon a Division Bench judgment of this Court in Smt. Manjesh Vs. Union of India and others, passed in Special Appeal No.1802 of 2010, dated 27.2.2017.
In response to the objection raised with regard to maintainability of the writ petition, Sri Ashok Khare, learned Senior Counsel for the petitioner, has placed reliance upon a judgment of the Apex Court in Bikash Bhushan Ghosh and others Vs. Novartis India Ltd. and another, reported in (2007) 5 SCC 591. The Apex Court has been pleased to observe as under in para-18:-
"18. Yet again the 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 v. Amar Singh Harika [ A.I.R. 1966 SC 1313], 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.""
According to the counsel for the petitioner, since the order of termination takes effect upon service of order on petitioner, therefore, place of service of order becomes a part of cause of action and since such cause has occurred within the territorial limits of this Court, and therefore, the writ petition is liable to be entertained.
The judgment of the Apex Court does not appear to have been placed before the Division Bench, and therefore, the objection raised on behalf of respondents is not liable to be sustained. The observation of the Apex Court that communication of an order of termination itself gives rise to a cause of action and it would thus clothe this Court with territorial jurisdiction to entertain the writ petition. The objection raised on behalf of respondents with regard to lack of territorial jurisdiction of this Court to entertain this writ petition, therefore, stands rejected.
So far as the claim of petitioner on merits is concerned, this Court finds that order of termination has been challenged by preferring an appeal before the appellate authority. Petitioner in paragraph 1 of his memo of appeal has clearly explained the circumstance as to how and when he has been served with the order and the appeal has been filed within a reasonable period, thereafter. The appellate authority concerned, however, has not examined the appeal of petitioner on merits, as it was filed after 90 days. The appellate authority appears to have acted in a mechanical manner in rejecting the appeal. Sufficient material did exist on record to explain the delay caused in filing of appeal. In the facts and circumstances, as the order of termination had been passed on 18.12.2017, the appeal preferred ought not to have been rejected on the ground of limitation.
Consequently, the appellate order dated 27.6.2018 passed by the Deputy Inspector General is set aside. The appeal of the petitioner is remitted to the authority concerned for its consideration, in accordance with law, on merits.
Writ petition, accordingly, stands disposed of.
Order Date :- 21.8.2018 Anil