Union Of India vs S. P. Singh

Union of India ......Appellant

Versus

S. P. Singh ......Respondent

JUDGMENT

HARJIT SINGH BEDI,J

1. Leave granted.

2. The respondent, S.P. Singh, an officer of the 1973 batch

of the Indian Revenue Service, was posted as

Commissioner (Appeals) Central Excise, Bhopal in May

2005. He filed an application dated 10th May, 2005

seeking voluntary retirement w.e.f. 1st September, 2

2005, on having completed 30 years of qualifying

service. On 30th June, 2005 the respondent was

relieved from Bhopal and posted as Commissioner

(Appeals) at Hyderabad. He accordingly handed over

charge at Bhopal on 20th June, 2005 but as the officer

holding the post at Hyderabad had not been likewise

relieved, the respondent's transfer order was stayed and

a request was made by him seeking a suitable posting

pursuant to his request for voluntary retirement. Vide

communication dated 25th August, 2005 sent to the

respondent at his residential address H. No. 226 Sector

15-A, NOIDA, he was asked to deposit some

outstanding dues so that his request for retirement

could be finalized. Quite to the contrary, however, on

9th September, 2005, the respondent received an order

dated 30th August, 2005 placing him under suspension

and fixing his Head Quarters at Aurangabad and by

another order dated 31st August, 2005 his request for

voluntary retirement was also declined. An order dated

16th September, 2005 was subsequently issued whereby 3

he was directed to be attached to Bhopal for the

purpose of receiving payment of his subsistence

allowance. The orders dated 30th August, 2005 and 16th

September, 2005 were challenged by the respondent

before the Central Administrative Tribunal (Principal

Bench), New Delhi (hereinafter referred to as "the

Tribunal" ). Before the Tribunal, it was contended on

behalf of the respondent that as the three months'

notice period for voluntary retirement had expired on

31st August, 2005 and the order of suspension had not

been communicated nor received by him till that date it

was to be deemed that the voluntary retirement had

become effective and as such permission to retire could

not be withheld thereafter, in the light of Rule 48(1)(a) of

the Central Civil Services (Pension) Rules, 1972

(hereinafter called the "Rules"). It was further

contended that the letter dated 30th

August, 2005 had been sent to Nagpur for further

onward transmission to Bhopal and it was only on

2nd September, 2005 that the suspension order had 4

been issued to the respondent's residential address in

NOIDA, ( a fact which was in the knowledge of the

Department) and had been received by him on 9th

September, 2005. It has accordingly been submitted

that the date of communication of the order being 2nd

September, 2005, the respondent could not have been

suspended thereunder as his three months' notice

seeking voluntary retirement had expired on 31st

August, 2005 and he was thus deemed to have retired

w.e.f. 1st September, 2005. It has accordingly been

submitted that the order dated 30th August,

2005 was, therefore, ineffective in law.

3. The Union of India in its reply has opposed the pleas

raised by the respondent and has submitted that as the

order of suspension had been dispatched before 31st

August, 2005 to Nagpur and thereafter transmitted to

Bhopal it was deemed to have been made effective from

30th August, 2005 itself, and as such the respondent

was deemed to be under suspension.

5

4. The Tribunal in its order dated 22nd February, 2006

examined the matter in the background of the Rules

and the dictionary meaning of the word

"Communication" and the ratio of several judgments of

this Court, Hari Kishan vs. State of Maharashtra,

AIR 1962 SC 911, State of Punjab vs. Amar Singh

Harika, AIR 1966 SC 1313, State of Punjab vs Sodhi

Sukhdev Singh, AIR 1961 SC 493, and Bachhittar

Singh vs. State of Punjab AIR 1963 SC 395 and

observed that an order had to be communicated to the

person who would be affected by that order so as to

make him bound by it. The Tribunal then examined

the import of the judgment in State of Punjab vs.

Khemi Ram AIR 1970 SC 214 and noted that a slight

deviation from the principles laid down in the first set of

cited cases had come about as the question as to

whether the communication of an order meant its

actual receipt by the concerned official as the

requirement of law was that the order to be effective

was required to be dispatched before the proposed date 6

of retirement to the correct address of the concerned

officer and its receipt after the date of the retirement

would be irrelevant. The Tribunal then examined the

effect of Rule 48 and observed that the respondent had

undoubtedly completed the requisite period of service

qualifying him for voluntary retirement and also fulfilled

all the other conditions as well and the only impediment

to his retirement was relatable to his suspension by the

order dated 30th August, 2005 in terms of the 2nd

proviso to Rule 48(1)(b) which postulated that

permission to seek voluntary retirement could be

withheld by the appointing authority in case the

Government Servant was under suspension. The

Tribunal then applied the law to the facts of the case

and observed that the order dated 30th August, 2005

had been dispatched to Nagpur for further transmission

to the respondent at Hyderabad though he was

admittedly at NOIDA at the relevant time, - a fact well

within the knowledge of the Department as he had not

been able to take up his appointment at Hyderabad. 7

The Tribunal accordingly concluded that the order had

been dispatched to the wrong address and was

therefore not effective as it had actually been received

by him on 9th September, 2005 whereas the respondent

had retired w.e.f. 1st September, 2005. The Original

Application was accordingly allowed by the Tribunal.

5. The matter was thereafter taken before the High Court

in writ proceedings. By the impugned judgment dated

3rd July, 2006 the writ petition has been dismissed and

the order of the Tribunal confirmed.

6. The Union of India is before us by way of special leave.

7. The learned counsel for the appellant - Union of India

has once again submitted that as the suspension order

dated 30th August, 2005 had actually been issued on

that date and the order rejecting the respondent's

request for voluntary retirement too had been

communicated vide order dated 31st August, 2005,

the respondent could not claim to have voluntarily

retired from service in the light of the 2nd proviso to Rule

48 (1)(a) as the necessary communication should be 8

deemed to have been made on the respondent. In this

connection, the learned counsel has relied the case of

Khemi Ram's case (Supra) in addition to Municipal

Corporation of Delhi vs. Qimat Rai Gupta & Ors.

(2007) 7 SCC 309 and U.P. State Sugar Corporation

Ltd & Ors. vs. Kamal Swaroop Tondon (2008) 2 SCC

41. The learned counsel for the respondent has

however supported the judgment of the Tribunal and

the High Court and has contended that in view of the

settled law, if the orders were to be made effective from

the date of issue it was essential that they be issued to

the correct address of the officer which was at NOIDA

and as the said orders had been dispatched to Nagpur

instead and served on him on 9th September, 2005 it

could not be said that the respondent continued to be

in service as his prayer for voluntary retirement had

been rejected.

8. We have heard the learned counsel for the parties and

have gone through the record.

9

9. The Tribunal has relied on several judgments of this

Court to support the view an order to be made effective

it has to be communicated to the officer at his correct

address. In Khemi Ram's case (supra) the question as

to what amounted to "communication" has been spelt

out and it has been observed thus:

16. "The question then is whether communicating the order means its actual receipt by the concerned government servant. The order of suspension in question was published in the Gazette though that was after the date when the respondent was to retire.

But the point is whether it was communicated to him before that date. The ordinary meaning of the word "communicate" is to impart, confer or transmit information. (Cf. Shorter Oxford English Dictionary, Vol. 1, p. 352). As already stated, telegrams, dated July 31, and August 2, 1958, were dispatched to the respondent at the address given by him where communications by Government should be dispatched. Both the telegrams transmitted or imparted information to the respondent that he was suspended from service with effect from August 2, 1958. It may be that he actually received them in or about the middle of August 1958, after the date of his retirement. But how can it be said that the information about his having been suspended was not imparted or transmitted to him on July 31 and August 2, 1958 i.e. before August 4, 1958, when he would have retired? It will be seen that in all the decisions cited before us it was the communication of 10

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 it 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 dispatched 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. 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 AIR 1966 SC 1313 (Supra) contemplated. But the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in his case there is no question of his doing any act or passing 11

any order and such act or order being challenged as invalid".

10. The aforesaid principle must now be applied to the

facts of this case. It is clear from the record that the

respondent was in NOIDA and not in Nagpur when the

orders had been issued. From the documents attached

and, in particular, the letter dated 5th July, 2005

written by him from his address ( H. No. 226 Sector-

15-A, NOIDA) to the Central Board of Excise and

Customs in which he points out that he had been

transferred from Bhopal to Hyderabad and on going

there he had been informed that the incumbent officer

at that place had not been relieved on which he had

returned to Bhopal and had reported for duty at the

Board's Office in New Delhi on 20th June, 2005 and

further requested that further orders as to his posting

be issued, it is evident that the department had

knowledge as to his whereabouts. The learned counsel

for the respondent has also referred to the letter dated 12

25th August, 2005 from the Under Secretary to the

Government of India, Ministry of Finance addressed to

the respondent at his residence in NOIDA directing him

to clear his outstandings before his request for

voluntary retirement could be finalized. It is also

significant from the record that the order of suspension

dated 30th August, 2005 had been marked to Shri B.S.

Ganu, Chief Commissioner of Central Excise, Nagpur

with a request that it be served on the applicant and

Shri Ganu had informed the Board Officer in New Delhi

that the respondent was not posted at Nagpur nor his

mailing address was available at that place and it was

thereafter on September 2, 2005 (on receipt of the

aforesaid letter) that the suspension order had been

dispatched to the correct address of the respondent at

NOIDA, and served on him a week later. It is therefore

clear that despite the fact that the Department was well

aware that the respondent was residing in NOIDA and

had reported for duty before the Board on 21st June,

2005 as the incumbent in Hyderabad had refused to 13

make way for him, yet the suspension order had been

sent to Nagpur. We are therefore of the opinion that

though the suspension order had been dispatched by

facsimile before 1st September 2005 yet it had been

dispatched to the wrong address and could not be

deemed to have been communicated to the respondent.

We have also gone through the other judgments cited

by the learned counsel for the appellant - Union of

India. They have absolutely no relevance to the facts of

the case and deal with separate issues. We therefore

find no infirmity in the order of the Tribunal and of the

High Court and accordingly dismiss the appeal. No

order as to costs.

..................................J. ( TARUN CHATTERJEE )

.................................J. ( HARJIT SINGH BEDI ) New Delhi Dated : May 7, 2008