Balagangadharan Nair, J.
1. The four petitioners were recruited as conductors in the Kerala State Road Transport Corporation (K.S.R.T.C.) through the employment Exchange and appointed as Reserve Conductors at Trichur with effect from June 6, 1980. Subsequently they were reappointed for a period of 89 days. That period was, according to the petitioners, to expire on December 13, 1980, though according to the respondent, the District Transport Officer of the K.S.R.T.C. at Trichur, the term of appointment of petitioners 1 and 3 was to expire on December 11, 1980 and that of petitioners 2 and 4 on December 9, 1-80. However that be, before expiry of the term, the petitioners filed the Original Petition on November 28, 1980. On December 1, 1980, the Original Petition was admitted and an order of interim stay till December 17, 1980 was made on C. M. P. No. 18164 of 1980 which had been filed by the petitioners along with the Original Petition. The prayer in the CMP. was 'to stay all further steps for the termination of the petitioners from service'. At the request of the petitioners order of interim stay was communicated by telegram to the respondent as directed by this Court. The communication, as stated in the counter-affidavit of the respondent, reached him on December 2, 1980 at 10 A. M. On December 3, 1980 at about 10 A. M. a memo Ext. P 3 dated December 1, 1980 was served on the petitioners saying that they (and certain others similarly placed) were 'relieved of their duties in K.S.R.T.C. with effect from A.N. of 1 -12 1980'. On December 4, 1980 the petitioners filed this application for directing their reinstatement in service and for taking appropriate action against the respondent for disobeying the order of interim stay. In support of the application the petitioners state that they were actually terminated from service only on December 3, 1980 after receipt of the order of stay, although the memo is dated December 1, 1980. that the termination was thus in breach of the order of stay and that the order of termination whatever its date, became effective only after it was communicated to them on December 3, 1980.
2. The respondent's defence, in the counter-affidavit, is that Ext. P 3 was issued on December 1, 1980 before receipt of the telegram for communication to the parties mentioned therein through the Assistant Transport Officer with copies to the concerned sections and the Chief Officer of the K.S.R.T.C, that thereafter no further action had to be taken by him on the termination of the services of the petitioners, that in fact he took no further action in that regard and that he does not know when Ext. P 3 was served on the petitioners. He further states that he has not violated the order of stay as the termination of the petitioners' services took effect from the time and date (the afternoon of 1-12-1980) mentioned in Ext. P 3 and that after the issue of Ext. P 3 he had no authority to take any action to reinstate the petitioners without orders to that effect from the chief office.
3. I accept the respondent's statement that he communicated the order Ext. P to his subordinate, the Assistant Transport Officer on December 1, 1980 for service upon the petitioners and that he got the telegram from this Court only on December 2, 1980 at 10 A. M. I also accept the petitioner's statement that Ext. P 3 was served upon them only at 10 A. M. on December 3, 1980. (The respondent has not chosen to contest this statement nor to give his version though he had the means of ascertaining the facts).
4. The short question is whether the petitioner's services were terminated after the respondent received the order of stay, in other words whether the termination was effective on December 1, 1980 before the order of stay reached the respondent or on December 3, 1980 when Ext. P. was served on the petitioners, one day after the receipt of the order of stay. If it is the former, the petitioners' prayers must fail but if it is the latter the respondent must reinstate the petitioners as they were terminated only after receipt of the order of stay and therefore contrary to it. whatever be his other liability for such conduct. In support of their rival contentions, both sides relied upon, somewhat strangely, the same decisions of the Supreme Court State of Punjab v. Amar Singh Harika : (1966)IILLJ188SC and State of Punjab v. Khozi Ram : 2SCR657 , although neither case was concerned with a situation as in the instant case. Besides these two cases counsel for the respondent also cited E. Venkateswararao Naidu v. Union of India : 3SCR216 and Kochusara v. Gracy and Ors. (1973) K.L.T. 880.
5. Taking : 2SCR657 , first the respondent who was to retire on August 4, 1958 had proceeded to his home pursuant to the leave granted to him on July 16, 1958. On July 31, 1958 the Government sent a telegram with a letter of confirmation to the respondent at his home address suspending him from service with effect from August 2, 1958 They were received by the respondent towards the middle of August, 1958. after the date of retirement on August 4, 1958. Subsequently a disciplinary enquiry was held against him and this led to his dismissal. In the writ petition to challenge the dismissal one of the points taken on behalf of the respondent was that the order of suspension did not take effect until it was received by him, that although made before the date of retirement it reached him only after that date and that he must, therefore, be held to have retired on August 4, rendering the enquiry and dismissal invalid. In the course of the judgment the court discussed and distinguished certain earlier cases, : 1SCR676 . After noticing that in : (1966)IILLJ188SC , it had been held that the mere passing of an order of dismissal would not make it effective unless it was published and communicated to the concerned officer, their Lordships proceeded to consider in paragraph 16 whether communicating the order means its actual receipt by the concerned Government servant. They noted that the ordinary meaning of the word communicate, as given in the Shorter Oxford English Dictionary, is to impart, confer or transmit information and held in the following passage that was particularly emphasised before me by counsel for the respondent:
It will be seen that in all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such an order is sent out, it goes out of the control of such an authority, and therefore, there would be no chance whatsoever of its changing its mind or modifying it. In our view, once an order is issued and it is sent out to the concerned Government servant, it must be held to have been communicated to him, no matter when he actually received it- We find it difficult to persuade ourselves to accept the view that it is only from the date of the actual receipt by him that the order becomes effective. If that be the true meaning of communication, it would be possible for a Government servant to effectively thwart an order by avoiding receipt of it by one method or the other till after the date of his retirement even though such an order is passed and despatched to him before such date. 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 thus prevent or delay its receipt and be able to 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.
It was concluded;
Actually knowledge by him of an order where it is one of dismissal, may. perhaps, become necessary because of the consequences which the decision in : (1966)IILLJ188SC (supra) contemplates. But such consequences would not occur in (he case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there no question of his doing any act or passing any order and such act or order being challenged as invalid.
17. In this view, we must hold that the order of suspension was validly passed and was communicated to the respondent before August 4, 1958, and therefore, was effective as from July 31, 1958.
6. On this conclusion the Supreme Court A rejected the respondent's contention which had been accepted by the High Court. It is also necessary to notice the observations made by their Lordships earlier in the judgment in paragraph 10:
These documents, therefore, clearly demonstrate that the order of suspension was passed on July 31, 1958, i.e., before the date of his retirement and had passed from the hands of the Punjab Government as a result of their having been transmitted to the respondent. The position, therefore, was not as if the order passed by the Punjab Government suspending the respondent from service remained with the Government or that it could have, therefore, changed its mind about it or modified it. Sines the respondent had been granted leave and had in fact proceeded on. such. leave, this was also not a case where, despite the order of suspension, he could have transacted any act or passed any order in his capacity as the Assistant Registrar.
7. It is obvious from the above passages that even before the date of retirement the order of suspension had left the hands of the Government and was in 'the course of transmission to the respondent a) his home address and was in a stage when there was no chance of the Government changing its mind or modifying it. Their Lordships did not rule out the necessity of actual knowledge on the part of the Government servant where the order is one of dismissal because of the consequences contemplated by : (1966)IILLJ188SC , but added that such consequences would not occur in the case of an officer who had proceeded on leave because there is no question of his doing any act or passing any order and such act or order being challenged as invalid.
8. Here the facts are entirely different The respondent passed the order Ext. P3 and sent it to the Assistant Transport Officer on December 1, 1980 for communication to the petitioners. The Assistant Transport Officer is his subordinate and works in the same building (this statement of counsel for the petitioner has not been controverted by counsel for the respondent) and on December 2, 1980 when the stay reached the respondent, the order Ext. P3 had not been put in a course of transmission, beyond recall; it was obviously on the table of the Assistant Traffic Officer which was as good as the table of the respondent. Granting that it might not have been normally proper for the respondent to recall an order like Ext. P3 after passing it to his subordinate fur communication but here it was actually served on the petitioners only after receipt of the orders staying retrenchment. The position was not much different if the respondent had himself served the order of termination after receiving the stay, although the order of termination had been prepared and kept by him even before receiving they stay, for the order of termination which was with his subordinate was still subject to his control. The situation was different from what it was in : 2SCR657 , where at the material time the order of suspension had gone out of the Government's control. Here the order although it was on the table of another officer and in his custody, was still subject to the respondent's control. The respondent cannot validly maintain that the order of termination became irretrievably operative when he had signed it or entrusted it with his subordinate for service, for it would come into effect only after its communication to the affected party. When he received the stay the respondent's clear and obvious duty was to recall the order of termination and not imagine, as the counter-affidavit seems to indicate, that he had no further duty. He asserts that after issuing the order Ext. P3 he had no power to cancel it without the directions of the Chief officer. Whether in the normal course he has the power or not in the face of the order staying the termination, it was his obligation to see that the order was recalled or at least that it was not served on the petitioners-the position was the same as if the order was on his table signed and ready for communication. 1 cannot accept the contention based on : 2SCR657 , where, apart from other distinguishing factors, there was no intervention of a judicial order as here.
9. In : (1966)IILLJ188SC the respondent, Amar Singh Harika was dismissed from Government service by an order dated June 3, 1949 and communicated to him on January 2/3 1953, although it had come to his knowledge on May 28, 1951. The Supreme Court held in paragraph 11 that the order could not be said to have taken effect until he came to know about it on May 28, 1951 observing:
It is plain that the mere passing of an order of dismissal would not he effective unless it is published and communicated to the officer concerned:
and pointing out the difficulties and complications that a contary view would produce.
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.
This proposition has not been doubted in : 2SCR657 , where their Lordships only explained, in the paragraph which 1 have quoted above, that it has no application to the factual situation there : (1966)IILLJ188SC does not serve the respondents contention.
10. Venkateswararao Naidu's case. : 3SCR216 only distinguishes : (1966)IILLJ188SC , as having no application to the facts there, where the relevant question was whether a notice, compulsorily retiring the appellant from service, issued on July 15, 1965 but served on him on July 22, 1965 was invalid as the Fundamental (Sixth Amendment) Rules raising the age of retirement from 55 to 58 had come into force on July 21, 1965 (one day prior to his receipt of the notice). After pointing out that the notice which was valid when it was issued did not become invalid by reason of the fact that the Rule on which it was founded had undergone an amendment before it was received by the appellant the Supreme Court explained that the considerations, on which : (1966)IILLJ188SC , invoiced by the appellant proceeded, did not arise in that case. I do not see how : 3SCR216 helps the respondent.
11. Less helpful to the respondent is (1973) KLT. 880, where it was held that a statutory rule which does not create any criminal offence comes into effect, in the absence of any contrary provision either in that rule or in the parent statute, when it is made and not when it is notified or published.
12. I have considered the matter at some length because of the vital interests involved for both sides, from rival angles. I find it unable to accept the defence of the respondent. For reasons discussed earlier, the order of termination was still within the respondent's control although passed earlier, when he received the order of stay; it had not been communicated to the petitioners nor served upon them until after he received stay. As the termination had not then become irretrievable or taken effect, the respondent could and should have recalled or suspended Ext. P3 and stopped its service on the petitioners in view of the order of this Court staying the termination of their services. Rejecting the respondents' contention I hold that the petitioners' services were not terminated on December 1, 1980. In the event the service of Ext. P3 on the petitioners and the termination of their services on December 3, 1980 were contrary to the order of stay and have to be invalidated.
13. The petitioner have also prayed for taking appropriate action against the respondent by which they imply, when read in the light of the supporting affidavit action for contempt. I do not think that I should in the circumstances, accede to that prayer for although the respondent advised himself wrongly he does not seem to have acted wilfully in his action or inaction.
14. I direct the respondent to reinstate the petitioners in service forthwith. They will be entitled to continuity of service but in the circumstances not to the wages or salary from December 3, 1980 when they were sent out of service. The application, is allowed to this extent. No costs.