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PETITIONER: UNION OF INDIA & ORS..

       Vs.

RESPONDENT: DINANATH SHATARAM KAREKAR & ORS..

DATE OF JUDGMENT:       30/07/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK.

ACT:

HEADNOTE:

JUDGMENT:                    J U D G E M E N T The original respondent, Dinanath Shantaram Karekar, who  died  during the pendency of the proceedings before the Central Administrative Tribunal Bombay and  has  since  been replaced  by  the  present  respondents,  was  appointed  as unskilled labour in the Naval Armament Depot,  Bombay.    He was   subsequently  promoted  to  the  post  of  Gun  Repair Labourer, Grade-I.  On 25th October, 1973, he  was  declared quasi-permanent on  that post with effect from 1.8.1966.  He was, however, removed  from  service  by  order  dated  19th August, 1985 after regular departmental enquiry.  This order was upheld in the Departmental appeal.  The order of removal as  also  the  appellate order were challenged by him before the Tribunal on the grounds, inter alia,  that  neither  the charge sheet nor the show-cause notice were ever served upon him  and,  therefore,  the  entire proceedings are vitiated. The Tribunal has found  that  the  charge  sheet  which  was issued  to  him  by  registered  post  was returned with the postal endorsement "not found", while the show-cause  notice was  published straightaway in Dainiki Sagar, Navshakti. The Tribunal found the service of the charge-sheet and the  show cause   notice   on   the  respondent  as  insufficient  and therefore, set aside the order dated 19th August,  1985,  by which be was removed from service.   Learned  counsel  for Union of India has strenuously urged that since the respondent had been  absenting  himself from  the office unauthorisedly, the service of charge sheet sent to him through registered post  should  be  treated  as sufficient. This contention cannot be accepted. Respondent  was  as  employee  of  the appellant His personal file and the entire service record was available in which his home address also had been mentioned.  The  charge sheet which was sent to the respondent was returned with the postal  endorsement  "not  found".  This  indicates that the charge sheet was not tendered to  him  even  by  the  postal authorities.  A  document  sent  by  registered  post can be treated to have been served only when it is established that it was tendered to the addressee. Where  the  addressee  was not  available  even  to  the  postal  authorities,  and the registered  cover  was  returned  to  the  sender  with  the

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endorsement   "not  found",  it cannot be legally treated to have been served. The appellant  should  have  made  further efforts  to serve the charge sheet on the respondent. Single effort, in the circumstances of the case, cannot be  treated as  sufficient.  That  being  so, the very initiation of the departmental proceedings was bad. It was ex-parte even  from the  stage  of  charge  sheet which, at no stage, was served upon the respondent. So far as  the  service  of  show  cause  notice  is concerned,  it  also  cannot be treated to have been served. Service of this notice was sought to  be  effeected  on  the respondent  by publication in a newspaper without making any earlier effort to serve him personally by tendering the show caunse  notice  either  through  the  office  peon   or   by registered post.    There  is  nothing on record to indicate that the  newspaper  in  which  the  show-cause  notice  was published  was  a  popular newspaper which as expected to be read  by  the  public  in  general  or  that  it  had   wide circulation  in  the  area  or locality where the respondent lived.  The show-cause notice cannot,  therefore,  in  these circumstances,   be   held   to  have  been  served  on  the respondent.  In any case, since the very initiation  of  the disciplinary  proceedings  was  bad  for the reason that the charge sheet  was  not  served,  all  subsequent  steps  and stages,  including  the  issuance  of  the show-cause notice would be bad. Lastly, in order to save the lost  battle,  a  novel argument   was   raised  by  the  learned  counsel  for  the appellant.  He contended that since the charge-sheet as also the  show-cause  notice,  at   different   stages   of   the disciplinary  proceedings, were despatched and had been sent out of the office so  that  no  control  to  recall  it  was retained  by  the  department, the same should be treated to have been served on the respondent.  It is contended that it is the communication of the charge-sheet and the  show-cause notice which is material and not its actual service upon the delinquent.   For this proposition, reliance had been placed on the decision of this Court in State of Punjab and  others Vs.  Balbir Singh etc., AIR 1977 SC 629. This decision has been misread, misunderstood and is now  being  misapplied  by the counsel for the appellants in the instant case. As  would  appear from the persual of that decision, the law  with  regard  to  "Communication"  and  not  Actual Service"  was laid down in the context of the order by which services were terminated.  It was based on  a  consideration of the  earlier  decisions  in State of Punjab .  Khemi Ram, AIR 1970 SC 214; Bachhittar Singh Vs.  State of Punjab, 1962 Supp.  (3) SCR 713 = AIR 1963 SC 395; State of  Punjab  Vds. Amar Singh Harika, AIR 1966 SC 1313 and S.  Pratap Singh Vs. State of  Punjab,  (1964)  4  SCR 733 = AIR 1964 SC 72.  The following  passage  was  quoted  from  S>   Pratap   Singh’s Judgement (supra):- "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

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be held to have been communicated to him, No matter when  he actually received it." It  was  in  this  background  that  in  cases where services are  terminated  or  a  person  is  dismissed  from service,  communication  of  the  order  and  not its actual service was held to  be  sufficient.    But  this  principle cannot be invoked in the instant case. Where  the  services  are  terminated,  the  status  of  the delinquent, as a Government servant, comes  to  an  end  and nothing further  remains  to  be done in the matter.  But if the order is passed and merely kept in the  file,  it  would not be treated to be an order terminating services nor shall the said order be deemed to have been communicated. Where the disciplinary proceedings are  intended  to be  initiated  by issuing a charge-sheet, its actual service is essential as the person to whom the chargesheet is issued is  required  to  submit  his  reply  and,  thereafter,   to participate in  the disciplinary proceedings.  So also, when the show-cause notice is issued, the employee is called upon to submit his reply to  the  action  proposed  to  be  taken against him.   Since in both the situations, the employee is given an opportunity to submit  his  reply,  the  theory  of "Communication"  cannot be invoked and "Actual Service" must be proved and established.  It has already been  found  that neither the charge-sheet nor the show-cause notice were ever served  upon  the  original  respondent,  Dinanath Shantaram Karekar.   consequently,   the   entire   proceedings   were vitiated. For  the  reasons stated above, we do not find any reason to interfere with the findings recorded by the Tribunal.    The appeal  has  no  merit  and is dismissed with no order as to costs.