Full Judgment Text
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CASE NO.:
Appeal (civil) 3365 of 2008
PETITIONER:
Union of India
RESPONDENT:
S. P. Singh
DATE OF JUDGMENT: 07/05/2008
BENCH:
TARUN CHATTERJEE & HARJIT SINGH BEDI
JUDGMENT:
JUDGMENT
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3365 OF 2008
(arising out of SLP ( C) No. 4544 0f 2007 )
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,
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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
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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
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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.
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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
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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.
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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
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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.
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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
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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
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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
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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
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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