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BHOOP SINGH versus STATE OF HARYANA & ORS.

High Court of Punjab and Haryana, Chandigarh

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Bhoop Singh v. State of Haryana & Ors. - CWP-5368-2005 [2006] RD-P&H 2115 (29 March 2006)

CWP No. 5368 of 2005 Page numbers

In the High Court of Punjab and Haryana, Chandigarh.

CWP No. 5368 of 2005

Date of decision: 27.3.2006

Bhoop Singh

....Petitioner

Versus

State of Haryana and others.

....Respondents

Coram:- Hon'ble Mr.Justice J.S. Khehar.

Hon'ble Mr. Justice P.S. Patwalia

Present: Mr. Ram Kumar Malik, Advocate

for the petitioner.

Mr. Harish Rathee, Sr. DAG, Haryana

for the respondents.

...

J.S. Khehar, J. (Oral).

The petitioner was charge-sheeted vide a communication dated 2.1.1998. He filed reply to the aforesaid charge-sheet on 13.1.1998.

Dissatisfied with the reply filed by the petitioner, a regular departmental enquiry was ordered to be conducted against him. On the conclusion thereof, the Enquiry Officer submitted a report dated 1.4.2002. Consequent upon the submission of the aforesaid, an order dated 4.4.2003 was passed against the petitioner vide which he was reverted to the lower post of Traffic Manager. Dissatisfied with the order dated 4.4.2003, the petitioner approached this Court by filing Civil Writ Petition No.5883 of 2003. The aforesaid writ petition was partly allowed by a Division Bench of this Court CWP No. 5368 of 2005 Page numbers

by an order dated 26.2.2004. The impugned order of punishment was set aside. Liberty was, however, granted to the respondents to pass a fresh order, in accordance with law. In furtherance of the aforesaid determination at the hands of this Court in Civil Writ Petition No.5883 of 2003, the Financial Commissioner-cum-Principal Secretary to Government of Haryana, Transport Department, passed an order dated 29.10.2004. The aforesaid order is subject matter of challenge through the instant writ petition.

During the course of hearing, learned counsel for the petitioner having sought instructions from the petitioner, who is present in Court in person, states, that he may be permitted to limit his prayer. In so far as challenge to the impugned order dated 29.10.2004 is concerned, he states, that the impugned order has been given retrospective effect from 4.4.2003.

The limited prayer made by the petitioner, while pressing the instant writ petition is, that the impugned order dated 29.10.2004 be set aside, inasmuch as, it has been given retrospective operation w.e.f. 4.4.2003. In advancing the aforesaid contention, learned counsel for the petitioner placed reliance on the decision rendered by the Apex Court in R. Jeevaratnam Vs. State of Madras, AIR 1966 Supreme Court, 951, wherein, the Apex Court has observed as under:-

"The order dated October 17, 1950 directed that the appellant be dismissed from service with effect from the date of his suspension, that is to say, from May 20, 1949. In substance, this order directed that (1) the appellant be dismissed, and (2) the dismissal do operate retrospectively as from May 20, 1949.

The two parts of this composite order are separable. The first CWP No. 5368 of 2005 Page numbers

part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 17, 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service.

We may now notice the cases relied on by counsel for the appellant. In Hemanta Kumar Vs. S.N. Mukherjee, 58 Cal WN 1:(AIR 1954 Cal 340), the Calcutta High Court had occasion to consider an order dated April 29, 1952 by which a civil servant had been placed under suspension with retrospective effect from January 16, 1951. While holding that the order of suspension for the period, January 16, 1951 upto April 28, 1952 was invalid and should be quashed, the Court held that the order of suspension was valid and effective as and from April 29, 1952 and this part of the order should be upheld. As a matter of fact, the validity of the suspension as from April 29, 1952 was not even questioned by counsel for the parties. Far from supporting the appellant, this decision is against him on the point under consideration. In Abdul Hamid Vs. District School Board, 24 Parganas, (1957) 61 Cal WN 880, the Calcutta High Court had occasion to consider an order dated April 18, 1952 discharging a teacher employed by a District School Board from service with effect from July 15, 1951, the date on which he had been arrested in connection with a CWP No. 5368 of 2005 Page numbers

pending criminal case against him. While holding that the dismissal for the period from July 15, 1951 up to April 17, 1952 was invalid, the High Court also held that the order of dismissal was entirely bad and was not effective even from April 18, 1952. The High Court observed: "It appears to me that when the real intention of the Board was to discharge the petitioner with effect from the date when he was put under arrest it is not within the jurisdiction of the Court to substitute a different intention and maintain the order of discharge in a modified form.

The order must stand or fall in toto. In this view of the matter it appears to me that the order of discharge as passed by the Board cannot stand."

Our attention is drawn to similar observations in Sudhir Ranjan Haldar Vs. State of West Bengal, AIR 1961 Cal 626. With respect, we are unable to agree with this line of reasoning. An order of dismissal with retrospective effect is, in substance, an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming that the second part of the order is invalid, there is no reason why the first part of the order should not be given the fullest effect. The Court cannot pass a new order of dismissal, but surely it can give effect to the valid and severable part of the order." In view of the decision rendered by the Apex Court, relied upon by the CWP No. 5368 of 2005 Page numbers

learned counsel for the petitioner, we are satisfied, that the impugned order, which has been made effective from 4.4.2003 despite the fact, that it was passed on 29.10.2004, deserves to be set aside. Since the aforesaid part of the order is severable, we hereby set aside the impugned order, in so far as, it records as under:-

".....This order shall be effective from the date of the original order dated 4.4.2003 which has been set aside by the Hon'ble High Court."

In view of the above, the impugned order shall be effective for all intents and purposes from 29.10.2004.

Writ petition stands disposed of accordingly.

( J.S. Khehar )

Judge.

( P.S. Patwalia )

Judge.

27.03.2006

sk.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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