An IRS officer sought voluntary retirement from 1 September 2005. His suspension order dated 30 August 2005 was dispatched to Nagpur though the department knew he resided at NOIDA, and he received it on 9 September 2005. The Court held it was not validly communicated and upheld his retirement.
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[2008] 7 S.C.R. 989
UNION OF !NOIA
A
v.
S.P. SINGH (Civil Appeal No. 3365 of 2008)
MAY 7, 2008
B
[TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ.]
Service law: Suspension order - Employee applied for voluntary retirement w. e. f 1. 9. 2005- On 9. 9. 2005, he received suspension order dated 30.8.2005 - This was dispatched to c Nagpur- Department was aware that he was residing in Delhi - Tribunal held that suspension order was dispatched to wrong address and was therefore not effective as it was received by him on 9.9.2005 whereas employee retired on 1.9.2005 - Correctness of - Held: Correct - Although suspension order D was dispatched by facsimile before 1. 9. 2005, yet it was dispatched to wrong address and hence not deemed to be communicated to employee - Central Civil Services (Pension) Rules, 1972 - r48(1)(a).
Administrative law: Communication of an administrative E order - When effective - Held: Once an order is issued and it is sent out to the concerned Government servant, it must be held to be communicated to him, no matter when he actually received it.
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Words and phrases: Communication - Meaning of.
The respondent posted as Commissioner (Appeals), Bhopal in May 2005, filed an application dated 10.5.2005 seeking voluntary retirement w.e. f. 1.9.2005. On 30.6.2005, the respondent was relieved from Bhopal and posted as Commissioner (Appeals) at Hyderabad. He accordingly handed over charge at Bhopal on 20.6.2005 but as the officer holding the post at Hyderabad had not been likewise relieved, the respondent's transfer order was
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990 SUPREME COURT REPORTS
[2008] 7 S.C.R.
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A stayed and a request was made by him seeking a suitable posting pursuant to his request for voluntary retirement. The communication dated 25.8.2005 was sent to the respondent at his residential address at NOIDA, whereby he was asked to deposit some outstanding dues so that B his request for retirement could be finalized. Quite to the contrary, however, on 9.9.2005, the respondent received an order dated 30.8.2005 placing him under suspension and fixing his Head Quarters at Aurangabad and by another order his request for voluntary retirement was also declined. An order dated 16.9.2005 was subsequently c issued whereby he was directed to be attached to Bhopal for the purpose of receiving payment of his subsistence allowance. The orders dated 30.8.2005 and 16.9.2005 were challenged by the respondent before the Central Administrative Tribunal.
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The Tribunal observed that the order dated 30.8.2005 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 E the knowledge of the Department as he had not been able to take up his appointment at Hyderabad. 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 9.9.2005 whereas the respondent had retired w.e.f. F 1.9.2005. The Original Application was accordingly allowed by the Tribunal. High Court dismissed the writ petition. Hence the present appeal.
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Dismissing the appeal, the Court
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G HELD: 1. The ordinary meaning of the word "communicate" is to impart, confer or transmit information. 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 H actually received it. The view that it is only from the date
UNION OF !NOIA v. S.P. SINGH
991
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of the actual receipt by him that the order becomes A effective cannot be accepted. 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 B 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 c on him. Such a meaning of the word "communication" ought not to be given unless the provision in question expressly so provides. [Para 9] [996-F, 997-D,E,F,G]
State of Punjab vs. Khemi Ram AIR 1970 SC 214 - relied on.
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Hari Kishan vs. State of Maharashtra AIR 1962 SC 911; State of Punjab vs. Amar SinghHarika 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; Municipal Corporation of Delhi vs. Qimat Rai Gupta & Ors. (2007) 7 SCC 309; UP State Sugar Corporation Ltd. & Ors. vs. Kamal Swaroop Tandon (2008) 2 SCC 41 - referred to.
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992 SUPREME COURT REPORTS
[2008] 7 S.C.R.
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A had knowledge as to his whereabouts. The respondent had also referred to the letter dated 25.8.2005 from the Under Secretary to the Government of India, Ministry of Finance addressed to him at his residence in NOIDA directing him to clear his outstandings before his request B for voluntary retirement could be finalized. It is also significant from the record that the order of suspension dated 30.8.2005 had been marked to Chief Commissioner of Central Excise, Nagpur with a request that it be served on the applicant, who had then informed the Board Officer c 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 2.9.2005 (on receipt of the aforesaid letter) that the suspension order had been dispatched to the correct address of the respondent at NOIDA, and served D 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 21.6.2005, yet the suspension order had been sent to Nagpur. Therefore, though the suspension order had been dispatched by facsimile before 1.9.2005 yet it had E been dispatched to the wrong address and could not be deemed to have been communicated to the respondent. [Para 1 O] [998-B,H, 999-A]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. F 3365 of 2008.
From the final Judgment and Order dated 3.7.2006 of the High Court Court of Delhi at New Delhi in W.P. (C) No. 10460 of 2006.
G R. Mohan, ASG, Gaurav Agrawal and B. Krishna Prasad for the Appellant.
Rajesh Kumar for the Respondent.
HARJIT SINGH BEDI, J. 1. Leave granted.
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993
UNION OF INDIA v. S.P. SINGH [HARJIT SINGH BEDI, J.]
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994 SUPREME COURT REPORTS
[2008] 7 S.C.R.
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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 of retirement to the correct Haddress of the concerned officer and its receipt after the date
995
UNION OF INDIA v. SP SINGH [HARJIT SINGH BEDI, J]
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of the retirement would be irrelevant. The Tribunal then examined A 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 0th.er conditions as well and the only impediment to his retirement was relatable to his suspension by the order dated 30th August, B 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 c 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. The Tribunal accordingly concluded that the order D 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.
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996
SUPREME COURT REPORTS
[2008] 7 S.C.R.
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A 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 UP State Sugar Corporation Ltd & Ors. vs. Kamal Swaroop Tandon (2008) 2 SCC 41. The learned counsel for the respondent has however B 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 cinstead and served onhim on9thSeptember, 2005 it could not be said that the respondent continued to be in service as his prayer for voluntary retirement had been rejected.
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997
UNION OF INDIA v. S.P. SINGH [HARJIT SINGH EIEDI, J.]
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effect from August 2, ,1958. It may be that he actually A 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 B retired? 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 c 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 D 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 E 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 F 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 G "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. H
998 SUPREME COURT REPORTS
[2008] 7 S.C.R.
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A But the case of an officer who has proceeded on leave and against whom an order of suspension is passed because in l:iis case there is no question of his doing any act or passing any order and such act or order being challenged as invalid''.
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UNION OF INDIA v. S.P. SINGH [HARJIT SINGH BEDI, J.]
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the incumbent in Hyderabad had refused to make way for him, A 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 151 September'2005 yet it had been dispatched to the wrong address and could not be deemed to have been communicated to the respondent. We 8 have also gone through the other judgments cited by the learned counsel for the app~llant- 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 c order as to costs.
D.G.
Appeal dismissed.
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1 issue framed by the court
Whether a suspension order dispatched by facsimile before the retirement date but sent to a wrong address was effectively communicated to the employee before his voluntary retirement took effect.
Colour shows how this judgement treated each authority
State of Punjab vs. Khemi RamRelied on¶9
_State of Punjab vs. Khemi Ram_ AIR 1970 SC 214 · Who else cites this
Hari Kishan vs. State of MaharashtraReferred
_Hari Kishan vs. State of Maharashtra_ AIR 1962 SC 911 · Who else cites this
State of Punjab vs. Amar Singh HarikaReferred
_State of Punjab vs. Amar Singh Harika_ AIR 1966 SC 1313 · Who else cites this
State of Punjab vs. Sodhi Sukhdev SinghReferred
_State of Punjab vs. Sodhi Sukhdev Singh_ AIR 1961 SC 493 · Who else cites this
Bachhittar Singh vs. State of PunjabReferred
_Bachhittar Singh vs. State of Punjab_ AIR 1963 SC 395 · Who else cites this
Municipal Corporation of Delhi vs. Qimat Rai Gupta & Ors.Referred
_Municipal Corporation of Delhi vs. Qimat Rai Gupta_ & _Ors._ (2007) 7 SCC 309 · Who else cites this
UP State Sugar Corporation Ltd. & Ors. vs. Kamal Swaroop TandonReferred
_UP State Sugar Corporation Ltd._ & _Ors. vs. Kamal Swaroop Tandon_ (2008) 2 SCC 41 · Who else cites this
2 provisions across 1 enactments
Union of India
S.P. Singh
Tarun Chatterjee
Harjit Singh Bedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
