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TMI Blog1982 (1) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of his illness, and he joined the Korba Division on September 4, 1975. 3. While the appellant was working in the Korba Division, he was served with a charge-sheet containing six Articles of charges, by the Chairman and Managing Director of the Corporation under cover of his memo dated September 14, 1976. All the charges, except one, related to the T.A. Bills submitted by the appellant in respect of travelling and transportation costs incurred by him for himself and the members of his family in Calcutta before he joined the Korba Division in Madhya Pradesh. It was inter alia alleged that in the T.A. Bills the appellant had made certain false claims of cost which he did not incur during his tour in Calcutta. The appellant was put under suspension and, after such suspension, he was permitted by the authority concerned to stay at his Calcutta residence and draw his subsistence allowance from the Calcutta office of the Corporation. 4. An enquiry was held in respect of the charges levelled against the appellant. The Enquiry Officer found the appellant guilty of all the charges. The Chairman and Managing Director of the Corporation agreed with the findings of the Enquiry Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al became effective only when it was served on the appellant in Calcutta. He has also placed reliance on the fact that the incidents constituting the charges, except one, had all happened in Calcutta. It is, accordingly, contended by the learned Counsel that a part of the cause of action arose in Calcutta within the jurisdiction of this Court, and that the learned Judge was not right in discharging the rule nisi on the ground of lack of territorial jurisdiction of this Court. 7. On the other hand, it is contended by Mr. Somendra Chandra Bose, learned Counsel for the Corporation, that the order of removal became effective the moment it was put into the post box for communication to the appellant. Counsel submits that as the order of removal was issued and posted in New Delhi, it is not correct to say that it became effective only when it was actually served on the appellant at his Calcutta residence. Further it is submitted by the learned Counsel that even assuming that the order of removal or dismissal becomes effective only when it is served on the employee concerned, he will not have to prove such service in order to succeed in the suit that may be instituted by him challengin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve after it is communicated to the officer concerned or is otherwise published. As the respondent came to know about the order of dismissal on May 28, 1951, it was held that the order of dismissal had taken effect from that date. 9. The above decision of the Supreme Court in Amar Singh's case (supra) undoubtedly supports the contention of the appellant before us that the order of removal became effective only when it was served on him in Calcutta. There is no dispute that the appellant had no earlier knowledge of the order. The learned Counsel for the Corporation, however, submits that in view of the decision in Amar Singh's case such an order will be effective after its communication to the officer concerned, actual service of the order on the officer or actual receipt of the same by him is not necessary. In Amar Singh's case, by the word communication what is meant by the Supreme Court is that the concerned officer has knowledge of the order. He will have such knowledge when he is told about the order and, in the absence of any proof of prior knowledge by any other means, communication of the order of dismissal will mean when the order is actually received by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication of an order of suspension, also noticed the distinction between the meaning of communication of an order of suspension and that of communication of an order of dismissal. It thus follows that while in the case of an order of suspension, it becomes effective when it goes ; out of the hand of the concerned authority for being communicated to the Government servant, no matter when he actually receives it, in the case of an order of removal or dismissal, it will be effective only when the ; Government servant has knowledge of it. It has been already said that the Government servant will have such knowledge when he is told about the order as that happened in Amar Singh's case (supra) or, in the absence of any prior knowledge, when he actually receives the order. 11. In this connection, we may refer to another decision of the Supreme Court in State of Punjab v. Balbir Singh (1976)IILLJ4SC also relied on by the learned Counsel of the Corporation. In that case, the respondents were granted officiating promotions to the posts of Sub-Divisional Officers, Class II by the State of Punjab. Thereafter, on October, 29, 1966 by the impugned order, the respondents were reverted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive. In the case of an order of reversion or suspension when it goes out of the control of the authority concerned, that is to say. when it is despatched to the Government servant either by post or by messenger, it becomes effective not only on the authority concerned in the sense that the order cannot be changed or modified, but also on the Government servant sought to be bound by it. This principle is not, however, applicable in the case of an order of dismissal in view of the consequences as pointed out in Amar Singh's case (supra). When an order of dismissal or removal from service is sent out, it is effective on the authority concerned, but so far as the Government servant is concerned, it becomes effective only when he is apprised of it either by oral communication or by actual service of it upon him. This, we think, was all that was meant by Untwalia, J., in the above observation in Balbir Singh's case- In view of the principles aforesaid, we hold that in the instant case, the impugned order of removal became effective when the same was received by the appellant through post in Calcutta, he having no prior knowledge ; of the same by any other means. 13. We have s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the giving of such a notice was not a condition precedent to the institution of the suit; the notice might be given during the pendency of the suit, but subject to the condition that it must be given within the prescribed period of six months. The Full Bench case, in our opinion, is of no help to the Corporation. While a notice under Section 77, Railways Act, may not give rise to a part of the cause of action, an order of removal or dismissal does give rise to a cause of action. Moreover, unless there is the existence of an order of removal or dismissal, the question of instituting a suit does not arise. The learned Counsel for the Corporation has, however, drawn our attention to the definition of cause of action given in some judicial decisions which have been referred to by G.N. Das, J., in his judgment of the Full Bench. One of such definitions has been given by Brett, J., in Cooke v. Gill [1873] LR 8 CP 107 as follows: Cause of action has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed, every fact which the defendant would have a right to traverse. Much reliance has been placed by the learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant against whom the suit is instituted. The same principle has been reiterated by the Privy Council in a later decision in Annamalai Chettiar v. A.M.K.C.T. Muthukaruppan Chettiar,. 17. Thus it appears from the principles of law laid down in the above decisions that the infringement of rights gives rise to a cause of action, and consequently, the right to sue. It is the case of the appellant in the instant case that his right to remain in service has been infringed by the impugned order of removal. The order of removal, therefore, undoubtedly gave rise to a cause of action for the appellant to institute an action for the establishment of his right to be in service. It has been already held that the impugned order of removal became effective only when it was served on the appellant in Calcutta. So long as the order was not effective there was no question of accrual of a cause of action or the right to sue. But the moment it became effective there was such accrual of cause of action or the right to sue. The impugned order of removal having become effective in Calcutta when it was received by the appellant, a part of the cause of action must be held to have arisen in Calcutta withi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eve of his transfer to Korba Division, a part of the cause of action also arose in Calcutta. The learned Judge did not consider this aspect of the case, presumably because his attention was not drawn to the charges most of which were based on facts originating in Calcutta. 21. The above finding that a part of the cause of action arose in Calcutta and this Court has jurisdiction to entertain the writ petition is sufficient to dispose of this appeal, for, as stated already, the learned Judge discharged the rule nisi on the sole ground of lack of jurisdiction. But Mr. Bose for the Corporation has raised two other objections to the maintainability of the writ petition. The first objection is that as the appellant has crossed the age of superannuation during the pendency of this appeal, his claim to reinstatement in service is no longer maintainable. He submits that even if the order of removal is ultimately set aside, the appellant can, at the most, claim his arrears of salary upto the date of his superannuation, but this Court should not in a proceeding under Article 226 allow any claim for money. It is, accordingly, submitted by the learned Counsel that the appeal should be dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... narily simply quash the order of dismissal. The word ordinarily in the observation is significant. Whether the High Court should also direct payment of full back wages will depend on the facts of each particular case. In the case before the Supreme Court, the employee concerned was a workman. He did not raise any industrial dispute, nor invoked the jurisdiction of the Labour Court or the Industrial Tribunal, but directly moved the High Court under Article 226 of the Constitution challenging the order of dismissal. That seems to be one of the reasons for the said observation. The other reason is that after termination of his employment, the workman or the employee might be gainfully employed elsewhere, and so it would not be proper for the High Court to direct payment of full back wages. In our opinion, the above observation of the Supreme Court applies more to the cases of dismissal of workmen who can raise industrial disputes and approach the Industrial Tribunals for reliefs than to employees or Government servants who are not workmen within the meaning of the Industrial Disputes Act, 1947. Be that as it may, as we are concerned with the maintainability of the writ petition, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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