Delhi High Court

Dinesh Kumar Gupta vs Union Of India & Ors on 8 March, 2017

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                        W.P.(C) 10052/2016
                                      Date of decision: 8th March, 2017

       DINESH KUMAR GUPTA                        ..... Petitioner
                   Through    Mr. A.K. Singla, Sr. Advocate with
                   Mr. H.D. Sharma, Advocate.

                  versus
    UNION OF INDIA & ORS                      ..... Respondent
                  Through    Mr. Sarat Chandra, Advocate for the
                  UOI.
                  Mr. Sanjeev Narula, Senior Standing Counsel
                  Customs.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR

SANJIV KHANNA, J. (ORAL)

C.M. No. 1968/2017

This is an application for production of Annexures A and B i.e. RTI

correspondence with the postal authorities and the original envelop posted

on 13th December, 2012 along with the enclosure i.e. letter dated 2 nd

November, 2012, received by the petitioner on 14th December, 2012.

We take the said documents on record, but the effect thereof will be

examined and considered independently. The application is accordingly

disposed of.

Review Petition No. 526/2016

Dinesh Kumar Gupta, the applicant seeks review of the order dated

26th October, 2016, whereby W.P. (C) No. 10052/2016 was dismissed.

2. The applicant, who was working as Superintendent in Service Tax

Commissionerate, New Delhi, by request letter dated 29 th August, 2012 had

asked for voluntary retirement under Rule 48A of the Central Civil Services

(Pension) Rules, 1972 with effect from 30th November, 2012.

3. The case of the review-applicant is that the respondent authorities did

not communicate rejection of the request for voluntary retirement before the

date specified in the notice, i.e., 30th November, 2012 and, therefore, as per

the mandate of Rule 48A, the applicant had voluntarily retired on 30 th

November, 2012. It is a case of deemed acceptance of request for voluntary

retirement made vide letter dated 29th August, 2012.

4. The applicant submits that he had learnt about the refusal for the first

time only on 14th December, 2012, when he had received vide Speed Post

the refusal letter dated 2nd November, 2012, signed on 8th November, 2012.

The applicant asserts and claims that he was never served with this letter

earlier. Reliance is placed upon the RTI information received from the

department of post by the applicant and placed on record as Annexure A to

C.M. No. 1968/2017, to assert that the refusal letter dated 2nd November,

2012 was not dispatched and posted on 9th November, 2012.

5. Learned senior counsel appearing for the review-applicant has drawn

our attention to paragraph 4 of the order dated 26 th October, 2016, which

records that the refusal letter dated 2nd November, 2012, signed by the

Deputy Commissioner (P&A), Service Tax, New Delhi on 8th November,

2012, was posted to the applicant's permanent address in Bhilai. It is stated

that as per the respondents, the letter dated 2nd November, 2012, which was

signed by the Deputy Commissioner (P&A), Service Tax, New Delhi on 8 th

November, 2012, was never sent to the permanent address of the applicant at

Bhilai.

6. We would accept the contention of the applicant that paragraph 4 of

the order dated 26th October, 2016 incorrectly records that the letter dated

2nd November,2012 signed by the Deputy Commissioner (P&A), Service

Tax, New Delhi on 8th November, 2012, was posted to the applicant's

permanent address at Bhilai, for it is also the case of the respondents that the

letter was posted and addressed to the applicant at New Delhi.

7. In spite of the aforesaid correction, we do not think that the order

dated 26th October, 2016, is required to be reviewed or recalled for the

following reasons.

8. The request of the petitioner for voluntary retirement under Rule 48A

submitted vide letter dated 29th August, 2012, was rejected by the

Competent Authority vide communication dated 17 th October, 2012. This

communication from the Additional Commissioner, Cadre Control Unit

(DZ) to the Commissioner, Service Tax Commissionerate, New Delhi,

records as under:-

" Please refer to your letter C.No. II-

3(11)Estt./VRS/D.K. Gupta/ST/2012/19943 dt. 13.09.12 wherein request dated 29.08.12 of Sh. Dinesh Kumar Gupta, Supdt. For Voluntary retirement from service w.e.f. 31.11.2012 was forwarded.

I have been directed to inform you that the request dated 29.08.2012 of Sh. Dinesh Kumar Gupta (DOB-

26.07.62) Supdt. For Voluntary Retirement from service under Rule 48A has not been accepted by the Competent Authority in view of DGoV advise (sic) of initiation of RDA for major penalty proceedings against the officer.

As the officer is presently posted under your charge, you are requested to inform the same to Sh. Dinesh Kumar Gupta, Supdt. under intimation to this office. "

This letter/order dated 17th October, 2012, had rejected the request for

voluntary retirement by the Competent Authority because the Director

General of Vigilance had advised initiation of regular departmental

proceedings for major penalty against the present applicant. The aforesaid

refusal by the Competent Authority was communicated long before the date

from which the voluntary retirement was sought i.e. 30th November, 2012.

The applicant does not dispute or deny this inter-departmental

communication dated 17th October, 2012.

9. What was/is under question and challenge before the Tribunal and

before us in the writ petition, and in this review application, is the

communication of the said rejection to the applicant by the Deputy

Commissioner (P&A), Service Tax, New Delhi.

10. As per the respondent authorities, the letter of rejection was written on

2nd November, 2012 and was signed by the Deputy Commissioner (P&A),

Service Tax, New Delhi on 8th November, 2012. This is also borne out and

is clear from the letter enclosed by the applicant as Annexure B to C.M.

No.1968/2017. To this extent, also, there is no dispute or challenge. The

challenge and question is raised, as to the date when this letter was posted

and dispatched.

11. This letter dated 2nd November, 2012 was diarised and thereafter

given No.26907 on 9th November, 2012. This is also clearly visible and

mentioned in the said letter dated 2nd November, 2012.

12. On the question of communication of this letter, there is dispute. The

Tribunal in the impugned order and this Court in the order dated 26 th

October, 2016, have observed and held that it was difficult to accept that the

applicant was not aware that his request for voluntary retirement was

rejected, for regular departmental proceedings for major penalty proceedings

were being initiated against him. The order of the Tribunal dated 19th

September, 2016 and the order dated 26th October, 2016 also refer to the

contention of the respondent authorities that an attempt was made to serve

the letter of rejection before it was dispatched, but the petitioner had refused

to accept or receive the same.

13. Learned senior counsel appearing for the applicant has submitted that

what was sought to be served on the applicant on 9th November, 2012, was

the inter-departmental communication dated 17th October, 2012 and not the

letter dated 2nd November, 2012. Our attention was drawn to the office

noting dated 19th December, 2012. Be that as it may, the fact of the matter is

that an attempt was made to serve the rejection communication on the

applicant and inform him that his request for voluntary retirement had been

declined. The service was sought to be made personally on the applicant on

9th November, 2012. The applicant had refused.

14. We would also examine the dispute, whether or not this letter dated

2nd November, 2012 was actually dispatched or posted on 9 th November,

2012. The respondent authorities in support of the contention that this letter

was posted on 9th November, 2012, have relied upon the Speed Post register

with Code No.902-07 dated 9th November, 2012. The letter in question is

listed at Sr. No.45 and was posted vide receipt number ED 78020764/6IN.

The dispatch number 26907 is also mentioned. This letter with other letters

from Sr. Nos.1 to 98 was handed over to the post office on 10 th November,

2012 as is apparent from the signature and receipt at page number 165 of the

paper book. Thus there is evidence to establish and show posting and

dispatch of the rejection letter dated 2nd November, 2012.

15. The petitioner in support of his contention, that he did not receive the

said letter, has relied upon the RTI information furnished by the Post Office

Paschim Vihar i.e. the post office connected with his residential address. As

per the said post office, they had not received any speed post letter with

Speed Post article number ED 78020764/6IN dated 9th November, 2012.

The applicant had sought information from the post office of his area and

not from the post office from where the letter was dispatched or posted.

Moreover, the dispatch register, receipt number ED 78020764/6IN recorded

therein, and the signature of the postal authorities indicates that this letter,

with 97 other letters, was received for dispatch by the Post Office-Income

Tax Office. These letters were received by the said post office on 10 th

November, 2012 as per the date mentioned in the Speed Post register. We

would therefore accept the stand of the respondents that they had dispatched

and posted the letter dated 2nd November, 2012 on 9th/10th November, 2012.

16. The applicant has also relied upon the Speed Post register of Code

No.902-07 dated 13th December, 2012, which relates to the Speed Post

Article Number as ED 80033660 2IN, dated 13th December, 2012. The

applicant's contention is that this register at Sr. No.63 also mentions the

diary number 26907 and this would show that the letter dated 2nd November,

2012, signed by the Deputy Commissioner (P&A), Service Tax, New Delhi

on 8th November, 2012, was dispatched for the first time only on 13th

December, 2012. The contention is far-fetched and fallacious. 26907 is the

diary number recorded on 9th November, 2012. Every time this letter was

posted, the diary number would be mentioned. This diary number is also

mentioned in the dispatch/post register for the date 9th November, 2012.

17. Reference to the receipt No.26907 is to the diary number or the

number mentioned in the letter dated 2nd November, 2012 itself. This is an

internal code of the department i.e. the Service Tax Department, not the

code given by the postal authorities. The code or dispatch number given by

the postal authorities was ED 78020764/6IN and ED 80033660 2IN, for the

posting dated 9th November, 2012 and 13th December, 2012 respectively.

As per the respondents, the letter dated 2nd November, 2012 was again

posted as the applicant had asserted that he had not received this letter

earlier. Second posting of the said letter would not confer any benefit to the

applicant.

18. In State of Punjab Vs. Khemi Ram, (1969) 3 SCC 28, the Supreme

Court had examined the question as to what amounts to "communication"

and when a communication is complete. It was held:-

"17. 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 despatched to the respondent at the address given by him where communications by Government should be despatched. 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 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 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 despatched 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. Actual knowledge by him of an order where it is one of dismissal, may, perhaps, become necessary because of the consequences which the decision in The State of Punjab v. Amar Singh contemplates. But such consequences would not occur in 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 any order and such act or order being challenged as invalid."

(emphasis supplied)

19. The aforesaid quotation would indicate that as far as the authorities

were concerned, communication was complete when the order/communiqué

was dispatched and handed over to the postal authorities i.e. on 10th

November, 2012. Thereafter, the respondent authorities could not have

changed their mind or modified the said order. In the present case, the order

after being signed on 8th November, 2012, was complete in all respects. The

order could not have been modified once it was diarised and given

number and thereafter given to the post office for dispatch. Even if we are

to assume and accept that the applicant never received the speed post letter

sent vide Speed Post article number ED 78020764/6IN, we would hold that

the communication, once it was dispatched, was final and binding. For

arriving at the aforesaid conclusion, we have relied on the principle of

preponderance of probability.