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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