Roshan Lal Behal vs The Director of Food and Supplies

Chet Ram Thakur, J.—This petition u/s 12 of the Contempt of Courts Act, 1971 has been filed by Roshan Lal Behal alleging therein that the Respondent disobeyed the order of this Court passed on C.M.P. 500/74 in C.W.P. 140/1974, titled Sewa Ram Sehgal and Roshan Lal Petitioners v. The State of Himachal Pradesh, Director of Civil Supplies and nine Ors. Respondents. The order passed on the C.M.P. reads as under:

Ex-parte interim stay is hereby allowed restraining the Respondents Nos. 1 and 2 from giving effect to the order of reversion in respect of Petitioner No. 2 till further orders. Notices may also be issued on payment of process-fee to Respondents Nos. 1 and 2. Dasti order on payment of usual charges may be issued.

Sd/- Chet Ram Thakur, Judge.

6-6-1974.

Roshan Lal Petitioner was working as a Superintendent in the Directorate of Food and Supplies, Himachal Pradesh, and he along with Dewa Ram Sehgal filed the writ petition, referred to above, challenging the promotions of Respondents 3 to 11 to the posts of District Food and Supplies Officers in the pay scale of Rs. 300--600 (Class II Gazetted). They had also challenged the vires of the rules as contained in Annexures B, B-I, and C to the writ petition. The grounds for attack are that these rules amount to violation of the service conditions to the detriment of the Petitioners for which no approval of the Central Government had been obtained as they are allocated officers from Punjab. Further that the blanket approval is no approval in the eye of law. The Petitioners had also prayed that pending the decision of the writ petition the Respondents 1 and 2 be restrained from making further promotions to the post of Superintendent and District Food and Supplies Officer in accordance with the invalid and illegal rules. It was, therefore, on the C.M.P. 500/74 that the Court passed an ex parte ad-interim injunction on 6-6-1974. The Respondents passed the order, Annexure A to this contempt petition, on 31-5-1974. By this order -the Respondents promoted Satish Kumar, Assistant of the Food and Supplies Department to the post of Superintendent in the pay scale of Rs. 400--650 vice Roshan Lal Behal, who was reverted to the post of Head Clerk, as, according to the Respondents, he was holding that post purely on ad hoc basis, vide department''s office order No. 9-5/73-CS, dated 5-7-1973. This order, as it appears from the endorsement, was sent to Roshan Lal Petitioner also on 1-6-1974. According to the Respondents he stood reverted on 1-6-1974 and Satish Kumar had taken over as Superintendent on 1-6-1974. The Petitioner contends that the order was not served on him and he continued to work as Superintendent and it was only in the month of July, 1974 when he was not paid his salary that he learnt that the Respondents had flouted the order of this Court passed on 6-6-1974 in the presence of the Advocate-General and, therefore, he has prayed for taking contempt of Court proceedings against the Respondents.

The Respondents in their reply to this petition have pleaded that the order was issued on 1-6-1974 and it could not be served on the Petitioner because he did not attend the office of Directorate and proceeded abruptly on leave on 1 -6-19 74. The 2nd June, 1974 was a holiday, being Sunday. The Petitioner did not attend the office on 3rd June and instead he had sent an application for extension of leave from 3rd June to 5th June, 19 74, which leave was sanctioned to him. Again the Petitioner sent a third application dated 6-6-1974 seeking further extension of leave for 6th and 7th June, 1974. This leave was also sanctioned to the Petitioner. Therefore, owing to the continued absence on leave from 1st June, 1974 to 7th June, 1974, the aforesaid reversion office order could not be served on the Petitioner who it appears by extending his leave from day to day, as aforesaid, intentionally avoided the service of the said office order. According to the reply, the Petitioner had stated in C.M.P. 500/74 to C.W.P. 140/74, in para 4 that the aforesaid office order came to his knowledge on 3rd June, 1974. Nevertheless, despite non-service of the office order on the Petitioner in the foregoing circumstances, the office order aforesaid was implemented and given effect to on the same day, viz. 1st June, 1974 (forenoon) when Satish Kumar promoted on regular basis to the post of Superintendent joined and assumed charge as Superintendent in the office of the Directorate of Food and Supplies.

Roshan Lal did not examine any witness in support of the allegations excepting himself. He has made a statement to the same effect whatever is stated in the petition. The Petitioner has submitted that he was not handed over or served with the office order as on 1st June he was on leave and continued on leave till 6th June, 1974. The Respondents have produced Satish Kumar (R.W. 1), O.P. Bhardwaj (R.W. 2), Kesari Lal (R.W. 3) and Devi Ram (R.W. 4) to prove that the orders of reversion of the Petitioner and promotion of Satish Kumar were passed on 31st May and that the orders were to be served on 1st June on the Petitioner. Satish Kumar who has appeared as R.W. 1, as Supported by other witnesses stated that he took over the charge of the office of Superintendent vice Roshan Lal Petitioner who was reverted on 1st June, 1974. The Petitioner, according to these witnesses, was in the office and as soon as the order was to be served on him he slipped out of the office and R.W. 4, who is a peon and wanted to serve the order was told that he would not accept the same and that he left the office. Therefore, from this evidence on the record it is conclusively proved in the absence of any rebuttal evidence excepting the bald testimony of the Petitioner himself that he was in the office in the morning and that he went on leave, thereafter to avoid service of the order. There is no doubt that there are leave applications, Exhibits R.W. 2/A, R.W. 2/B and R.W. 2/C, which indicate that the Petitioner was on leave from 1st June to 6th June. Application, Exhibit R.W. 2/A, bears the date 1-6-1974 and the sanction order also bears the same date i.e. 1-6-1974. Therefore, it means that this application was put in by the Petitioner in the office on the same day when the orders reverting him were to be conveyed to him. Therefore, it is not believeable in the face of this voluminous evidence on the record that the Petitioner was not present on the morning of 1st June when the order was sought to be served on him. If the application would have been made on 31st May it could be said that he had proceeded on leave prior to the orders being served on him. In fact, orders of reversion and suspension must be held to have taken effect as soon as they are passed irrespective of the fact when they are actually communicated to the person concerned. Therefore, if the Petitioner was in the office on 31st May when the orders were actually passed and were to be delivered to him on 1st June then in that case it must be held that the order had taken effect especially when Satish Kumar had already assumed office as Superintendent in place of Roshan Lal Petitioner. Roshan Lal, as is evident from the statement of the witnesses, was present in the morning and the leave application, Exhibit R.W. 2/A, also proves this fact that he was there in the office because this application was given by him on 1-6-1974. Therefore, he was aware of the order reverting him from the post of Superintendent and it was only thereafter that he proceeded on leave in order to thwart or to render the order ineffective and this was a well planned device on his part to slip away and contend that he was not served and, therefore, he continued to hold the post of Superintendent, which is not correct. In State of Punjab v. Khemi Ram 1969 S.L.R. 833 it had been held that once an order has been issued and sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually receives it. It is difficult to accept the view that it is only from the date of actual receipt by him that that order becomes effective. If that be the true meaning of the word, ''communication, it would be possible for the Government servant to effectively thwart the order by avoiding receipt of it by one method or the other. An officer against whom action is sought to be taken, thus, may go away from the address given by him for service of such orders or may deliberately give a wrong address and defeat its service on him. Such a meaning of the word ''communication'' ought not to be given unless the provision in question expressly so provides. Therefore, in the face of these weighty observations of their Lordships of the Supreme Court it is wrong on the part of the Petitioner to contend that he was not served. The order had taken effect as soon as it was passed and was duly endorsed to him and this cannot be disputed that Satish Kumar had already assumed the office of Superintendent on 1-6-1974. So, in the circumstances if Satish Kumar had taken over as a Superintendent then the Petitioner could not hold the same office as there could not be two persons holding the same office. Therefore, it is needless to go into any further details of the case when the order became effective as soon as it was passed and as such there was no question of any wilful disseverance of the order of this Court on the part of the Respondents especially when the order was obtained a long time after the reversion order had taken effect.

In view of the above this petition fails and is hereby dismissed with costs, assessed at Rs. 100/- to be paid to the State.