ORDER
Shanker Raju, Member (J)
1. By virtue of the present Original Application a challenge has been made to an order passed on 30.08.2005 placing the applicant under suspension on a contemplated disciplinary proceeding. An order passed on 16.09.2005 is also assailed whereby the applicant, for the purposes of withdrawal of salary/subsistence allowance from 13.06.2005, is posted as Commissioner Central Excise, Bhopal and thereafter showing him against the post of Commissioner, Central Excise (A), Aurangabad.
2. Applicant has also sought release of retiral benefits as calculated on 1.9.2005 as well as salary due from June, 2005.
3. Brief factual matrix, relevant to be highlighted as an intricate part of adjudication, transpires that the applicants, who is an officer of 1973 batch of Indian Revenue Services, was lastly posted as Commissioner (Appeal) Central Excise, Bhopal in May, 2005, by an
application dated 10.05.2005. having completed 30 years of qualifying service, sought voluntary retirement w.e.f. 01.09.2005 i.e. giving three months’ required notice on the ground of having four years left in service and because of pending cases apart from clinical depression as he has been living away from his wife for a long.
4. On 13.06.2005, in pursuance of Office Order dated 31.05.2005, applicant was relieved to join new place of posting as Commissioner (Appeal) Hyderabad. Applicant handed over the charge only on 20.06.2005 but since the officer holding post at Hyderabad was not relieved, Member, CBEC stayed the transfer order. A request had been made to make suitable posting in pursuance of request of voluntary retirement. Vide communication dated 25.08.2005 sent to the applicant at his residential address i.e. H.No. 226, Sector 15-A, NOIDA in the wake of his request for voluntary retirement, he was asked to deposit outstanding dues. On 09.09.2005, applicant received an order dated 30.08.2005 placing him under suspension and fixing his headquarter at Aurangabad, which led to filing of the present Original Application.
5. Learned Counsel for the applicant vehemently contended that as three months’ notice period had expired on 31.08.2005, till then neither the order of suspension was validly communicated nor received by the applicant, he is deemed to be voluntary retired and, therefore, permission to retire cannot be withheld in view of Rule 48(1)(a) of the CCS (Pension) Rules, 1972. Learned Counsel, relying upon a decision of the Apex Court in State of West Bengal v. M.R. Mondal 2001(8) SCC 443, stated that in administrative action Government orders and memoranda, not communicated to the concerned, have no force, effect or authority.
6. Learned Counsel further contends that applicant’ s residential address of NOIDA was very much in the knowledge of the respondents yet a fax message of the suspension order was sent to Nagpur, which was onward transmitted to Bhopal and ultimately was issued to the applicant’s residential address on 02.09.2005, which was received by him 09.09.2005, which is not disputed by the respondents. Therefore, the date of communication would be 02.09.2005, and, as such, order of suspension was not in existence before 02.09.2005 on which date the notice period of three months for voluntary retirement had already expired on 31.08.2005 and the applicant would have been deemed to have voluntary retired w.e.f. 01.09.2005 and he could not have been placed under suspension as relationship of master and servant had terminated before that date.
7. Learned Counsel would also contend that there is no valid communication of order passed by the respondents as he has come to know from the reply filed by the respondents in this O. A. that though the order dated 31.08.2005 containing 2 pages was sent by fax on 31.08.2005 at 5.15 p.m. but only one page had been received at Bhopal, which was incomplete. Moreover, having received the order in the afternoon, as per FR (56)(1), the same is not treated to have been communicated and has not come into effect. Since the respondents have not refused permission and it was not validly and legally communicated to the applicant before the effective date of 31.08.2005, he is deemed to have retired.
8. Learned Counsel of the applicant, in the rejoinder, has referred to the following decisions to contend that the order dated 31.08.2005, which is in continuation of the order passed on 30.08.2005 though not specifically challenged isnon est’m law and it cannot take effect. It is also contended that before a decision is taken, it has to be brought to the notice and knowledge of the affected parties.
1. State of Punjab v. Amar Singh Harika AIR 1966 (SC) 1313.
2. C.C.E. v. M.M. Rublin and Co. 1992 (Suppl.) SCC 471.
9. Learned Counsel would also contend that as per Rule 48 of the Pension Rules, it is not an impediment for acceptance of request for voluntary retirement if at the time of giving notice, one is not under suspension.
10. On the other hand, learned Counsel of the respondents vehemently opposed the contentions and relying upon a decision of Four Judges Bench in State of Punjab v. Khemi Ram AIR 1970 SC 214, stated that once the order of suspension has gone out of the purview of respondents and it cannot be withdrawn or modified, the same would be the communication and the date of effect of the suspension. As the order passed, placing the applicant under suspension, on 30.08.2005 has been sent to Nagpur and thereafter to Bhopal, it is effective from 31.08.2005 and as the applicant was placed under suspension before the effective date of notice i.e. 31.08.2005, there is no illegality in refusal of permission to the applicant to voluntary retire.
11. Learned Counsel would also contend relying upon the decision of the Apex Court that there is no challenge to the order passed on 31.08.2005 and as the applicant had been facing trial and disciplinary proceedings, suspension disentitles him for rctiral benefits under FR 56(k)(1)(c) and he has not been relieved. Official records have been placed for perusal of the Court.
12. I have carefully considered the rival contentions of the parties and perused the material on record apart from the records produced by the respondents.
13. No doubt inception of a Government servant is a contract but later on it is governed by conditions of service provided under the statutory rules framed under Article 309 of the Constitution of India as well as non-conflicting administrative instructions by way of circulars and memoranda issued.
14. Under Rule 10 of the CCS (CCA) Rules, 1965, a Government servant on contemplation of disciplinary proceedings can be placed under suspension.
15. As regards communication, in its common parlance, Oxford English Dictionary 18th Edition (Revised) published in 1999 defines ‘communication’ as an action to communicate a letter or message containing information of news. The means of sending information and word ‘communicate’ is defined as existing information or idea to transmit.
16. The word ‘Communication’ in its legal terminology is defined in Fourth Reprint of Judicial Dictionary by K.A. Ayar in 1997 to the effect of furnishing of a copy of order for the purposes of filing an appeal and in the matter of detenue imparting detenue sufficient knowledge of all the grounds in the light of a decision of the Apex Court in Hari Kishan v. State of Maharashtra AIR 1962 SC 911. The Apex Court in Khemi Rain’s case (supra) taking resort to the ordinary meaning of communication in shorter Oxford English Dictionary held to impart, confer or transmit information though in the matter of disciplinary proceedings and any other matter related to CCS (CCA) Rules, 1965. Rule 30 provides for the purpose of communication through registered post but in the wake of modern and sophisticated means of communication being available and also in the wake of an amendment to the Evidence Act incorporation electronic evidence communication through fax, telegram, post, speed post, registered AD, courier and also Dasti service through messenger are few instances of modes of communication.
17. A Five Judges Bench of the Apex Court in State of Punjab v. Amar Singh Harika, (supra) in a question of communication of an order of dismissal as a ratio decidendi in so far as communication is concerned, held as follows:
11. .We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June, 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May, 1951,
18. The Apex Court in the matter of Hah Kishan ‘s case (supra) in so far as knowledge of ground of detention to detenue, the following observations have been made:
7…In order that the detenue should be in a position effectively to make his
representation against the Order, he should have knowledge of the grounds of detention, which are in the nature of the charge against him setting out the kinds of prejudicial acts which the authorities attribute to him. Communication, in this context, must therefore,’ mean imparting to the detenue sufficient knowledge of all the grounds on which the Order of Detention is based. In this case the grounds are several and are based on numerous speeches said to have been made by the appellant himself on different occasions and different dates. Naturally, therefore, any oral translation or explanation given by the police officer serving those on the detenue would not amount to communicating the grounds. Communication, in this context must mean bringing home to the detenue effective knowledge of the facts and circumstances on which the order of Detention is based.
19. In another Constitution Bench decision in the matter of State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493, the Apex Court has also held that communication means actual receipt of the order by the concerned affected person.
20. In another Constitution Bench decision of the Apex Court in Bachhittar Singh v. State of Punjab AIR 1963 SC 395 on the question of ‘communication’, the following observations have been made:
(10) The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is not more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council or Minister may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the ‘order’ of the state Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh AIR 1961 SC 493 at p. 512:
Mr. Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent’ s representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers have provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent.
Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers, to consider the matter over and over against and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.
21. If one has regard to the above, in the matter of dismissal, it is necessary for communicating the order to be actually received by the affected party. However, mKhemi’s case (supra) a Four Judges Bench of the Apex Court, while dealing with a case where respondent – a Sub-Inspector who had applied for another post, was charge-sheeted for contemplated proceedings before deputation, the Himachal Pradesh Government having granted leave to the respondent, which was objected to by the Government of Punjab for being persuaded to be cancelled entailed on an enquiry dismissal which was challenged. A challenge has been made to the suspension on the ground that the telegram through which order of suspension was served was received by him at his address after his retirement and, therefore, would not be effective. The Apex Court distinguished cases of Amar Singh Harika, Sodhi Sukhdev Singh, Bachhittar Singh on the ground that those related to dismissal and effective service being actual one, and observed as under:
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 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 though 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 di spatched 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) contemplates. 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 any order and such act or other being challenged as invalid.
22. A ratio decidendi of a decision of the Apex Court in its derivation has not only to be on the basis of reading few paragraphs here and there is isolation but would be a cumulative reading of the matter in issue, arguments advanced, adjudication and the reasons thereof and conclusion arrived at by the competent Court.
23. In a Constitution Bench’s decision of Islamic Academy of Education v. State of Karnataka 2003(6) SCC 697, the Apex Court has held as follows:
The answers to the questions, in the majority judgment in Pai case are merely a brief summation of the ratio laid down in the judgment. The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in insolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment.
24. In Ashwani Kumar Singh v. U.P. Public Service Commission 2003(11) SCC 584 : 2004(1) SLJ 28 (SC), the Apex Court ruled that Courts below should not place reliance on decision without discussing the factual situation in which it fits with the fact situation of the decision relied upon. Judgments of Courts are not to be construed as statute. Every word of thejudgment is not to be given a literal meaning and no word is to be ignored unlike a statute. The Apex Court in the aforesaid case held as under:
10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid’s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interest judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dack Co. Ltd. V. Horton (AC at p. 761) Lord Macdermott observed: (All ERp. 14 CD.)
The matter cannot, of course, be settled merely be treating the ipsissima verba of Wiles, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge..
11. In Home Office v. DorsetYacht Co. Lord Reid Said, “Lord Aktin’s speech.. is not to be treated as if it were a statutory definition. It will require qualification in new circumstances” (All ER p. 297 g-h). Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2 observed: (All ER p. 1274d-e)
One must not, of course, construe even a reserved judgment of even Russel, I.J. as if it were an Act of Parliament,” lnHerringtonv. British Rlys, Board Lord Morris said: (All ER p. 761c).
There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.
12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
If one has regard to the above ratio decidendi is to be derived from the entire judgment. The observations are to be read in this context. Picking out a line and reading it in isolation would not be in consonance with law.
25. Having underlined principle of law enunciated from the point of view of ratio decidendi of a decision of the Apex Court in Khemi Ram’s case, it is relevant’ to quote certain provisions of statutory rules promulgated under Article 309 of the Constitution of India.
26. Rule 48 of the CCS (Pension) Rules, 1972 provides as under:
48. Retirement on completion of 3- years’ qualifying service
(1) Any time after a Government servant has completed thirty years’ qualifying service:
(a) he may retire from service, or
(b) he may be required by the Appointing Authority to retire in the public interest, and in the case of such retirement the Government servant shall be entitled to a retiring pension:
Provided that:
(a) a Government servant shall give a notice in writing to the Appointing Authority at least three months before the date on which wishes to retire; and
(b) the Appointing Authority may also given a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months’ pay and allowances in lieu of such notice:
Provided further that where the Government servant giving notice under Clause (a) of the preceding proviso is under suspension, it shall be open to the Appointing Authority to withhold permission to such Government servant to retire under this rule.
27. If one has regard to the above, a Government servant who has completed 30 years qualifying service may give notice to the Competent Authority in writing of not less than three months specifying the date of retirement and the only impediment is whether the Government servant giving notice is not under suspension. In that event, it is the discretion of the authority to withhold permission to retire which otherwise on expiry of the notice period, the Government servant is deemed to have retired.
28. In the matter of interpretation of a rule and specially the rule promulgated under Article 309 of the Constitution of India, the Apex Court in Three Judges Bench decision of Gurudevdatta v. VKSS Maryadit v. State of Maharashtra 2001(4) SCC 534, held as follows:
It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the state to suggest to the contrary. The golden rule is that the words of a statute mustprimafacie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Court are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts have adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute.
29. Perusal of the above clearly shows that where the statute is clear and unambiguous a plain reading and construction grammatical is to be accorded.
30. In Bhamthidasan University v. All India Councilfor Technical Education 2001(8) SCC 676, the Apex Court ruled as under:
When the legislative intend finds specific mention and expression in the provisions of the Act itself, the same cannot be whittled down or curtailed and rendered nugatory by giving undue importance to the so-called object underlying the Act or the purpose of creation of a body to supervise the implementation of the provisions of the Act, particularly when the AICTE Act does not contain any evidence of an intention to belittle and destroy the authority or autonomy vof other statutory bodies, having their own assigned roles to perform. Merely activated by some assumed objects or desirabilities, the Courts cannot adorn the mantle of the legislature. It is hard to ignore the legislative intend to give definite meaning to words employed in the Act and adopt an interpretation which would tend to do violence to the express language as well as the plain meaning and patent aim and object underlying the various other provisions of the Act. Even in endeavouring to maintain the object and spirit of the law to achieve the goal fixed by the legislature, the Courts must go by the guidance of the words used and not on certain preconceived notions of ideological structure and scheme underlying the law.
31. If one has regard to the above, when the legislative intend finds specific mention and expression in the provision is clear, the same cannot be whittle down by giving importance to the object of the Act.
32. In the matter of interpretation, a Constitution Bench of the Apex Court in Dadi Jagannadham v. Jammulu Ramulu 2001(7) SCC 7, observed as under:
The settled principles of interpretation are that the Court must proceed on the assumption that the legislature did not make a mistake and that it did what it intended to do. The Court must, as far as possible, adopt a construction, which will carry out the obvious intention of the legislature. Undoubtedly, if there is a defect or an omission in the words used by the legislature, the Court would not go to its aid to correct or make up the deficiency. The Court could not add words to a statute or read words into it, which are not there, especially when the literal reading produces an intelligible result. The Court cannot aid the legislature’s defective phrasing of an Act, or add and mend, and, by construction, make up deficiencies which are there.
33. In nutshell, what is discerned from the above is that a literal meaning of the statute is to be accorded while interpreting a rule.
34. As per the grammatical and contextual interpretation of Rule 48 of the Pension Rules, a Government servant retires on expiry of three months’ notice period and the only impediment or the distinction available to the Government to withhold permission to retire is if the Government servant giving notice is under suspension. The word ‘giving notice’ signifies the status of a Government servant at the time he tenders»three months’ notice for voluntary retirement. What is important or condition precedent to withhold permission lo a Government servant seeking voluntary retirement on completion of 30 years qualifying service, is that the Government servant at the time of tendering notice for voluntary retirement is under suspension. If the interpretation had been otherwise, there would have been a specific provision to the extent that if the Government servant, who has given notice under Clause (a), is under suspension, the permission to retire could have been withheld. The suspension qualifies the statues of the Government servants on the date of tendering notice if he is under suspension at that time, he may apply for the voluntary retirement but acceptance would be discretionary. Otherwise, if one is not under suspension and the notice period comes to an end, Competent Authority is without jurisdiction or discretion to withhold such permission.
35. A Three Judges Bench of Apex Court inTek Chandv. Dile Ram, 2001 (3) SCC 290, while discussing Rule 48(a) of the Pension Rules ibid on effective date of voluntary retirement clearly held that once the authority docs not refuse to grant permission before the expiry of notice period, the same becomes effective but in the event, as in the present case of 30 years of qualifying service under Rule 48, acceptance of request for voluntary retirement is deemed to have been accepted after expiry of notice period provided that one is not under suspension at the time when notice had been tendered. However, I may not lose sight of the provision of FR 56(k)(i)(c) which deals with three months’ notice of retirement’ on attainment of 50 years of age with a discretion to the appropriate authority to withhold permission when a Government servant, who seeks voluntary retirement, is under suspension. As there was an ambiguity in the order, DoP&T vide O.M. No. 25013/31-83 Establishment-A dated 30.03.1984, clarified that the right to withhold permission can be exercised by the authority even if a Government servant is placed under suspension after giving the notice for retirement but such right shall be exercised by the said authority before the expiry of the period of notice given by a Government servant. FR 56 (k) deals with retirement on attaining the age of 50-years whereas Rule 48 of the Pension Rules stand of different fooling where on completion, of 30 years qualifying service, irrespective of age, request of voluntary iciircment has to be tendered, there is no clarification issued by the DoP&T in respect of Rule 48 of the Pension Rules. In this context, the clarification issued by the DoP&T in respect of FR 56 would not hold good for Rule 48(a) of Pension Rules, which is very clear, unambiguous as to withholding of permission to voluntary retirement in case of Government servant is under suspension tendering notice of retirement but would not apply when a Government servant is placed under suspension after tendering notice. In the matter of subordinate legislation, memorandum issued by the Government or any circular issued which is conflict and make a rule otiose is ultra vires as per the decision of the Apex Court in Permeshwar Prasad. v. Union of India and Ors. 2002(1) SCC 145 : 2002(1) SLJ 333 (SC). Any circular to be issued to fill up the gaps in the rules is permissible but when it is intended to supplant the rules the same would not hold the filed as held by the Apex Court in Union of India v. P.K. Lambodaran Nair 2001(9) SCC 276.
36. In the present case, when the rule is unambiguous, absolute clear, its grammatical and contextual meaning leads to only one interpretation and for want of any instructions issued by the Government supplementing the rules, the rule, as it is, clearly signifies and interprets the view taken above. ,
37. Assuming for the sake of arguments as a legal fiction that Rule 48 of the Pension Rules is an impediment for the Government servant, a permission to retire when placed under suspension before the effective date the condition precedent for holding such a view and to sustain it legally is that the order passed should be before the expiry of the notice period and should be validly and legally communicated to the concerned affected person.
38. In the light of the above, as the word ‘communication’ is the effective service of an order of suspension as held in a binding precedent by the Apex Court inKhemi Ram’s case, the order of suspension, if issued by the authorities and dispatched and goes out of the control of respondents with no locus poinsettiq i.e. an opportunity to take back the order, the same would be effective from the date of its issue. However, it does not imply i f the order of suspension issued and dispatched on a wrong address i.e. not at the address given by the Government servant to the Government for communication, the same would not be deemed to be valid communication for effect of the, order of suspension. Accordantly, in a case where the service of notice is evaded by a Government servant of the receipt of the order on a wrong address, communication is interpreted by the decision in Khemi Ram’s case would hold but the decision and its ratio decidendiwould apply to a situation to harbour and rely upon the definition of communication where the Government communicated the order at a wrong address the condition precedent for such a communication to be deemed to be effective that has to be a dispatch on the correct address available with the Government otherwise Khemi Ram’s case ratio would have no application to such a situation.
39. In the light of the above, as the departmental records are available, it transpires that the applicant, who was earlier posted in Administrative control of Commissionerate at Nagpur was transferred to Bhopal and was onward transferred in June, 2006 to Hyderabad where for want of posting and non-relieving of the concerned, who was to be replaced by the applicant, the order having been kept in abeyance, the applicant was served with a communication by the Ministry of Finance Le. CBEC on 25.5.2005 tor depositing outstanding dues for purposes of voluntary retirement and this communication was sent at the residential address of the applicant i.e. H.No. 226, Sector 15-A, NOIDA. Moreover, from the file it transpires that on 23.8.2005 while service of Memorandum No. 24/2005 dated 25.5.2005 relating to the disciplinary proceedings a letter written by the Under Secretary to the Government of India Shri S.P. Roy addressed to the Under Secretary (Admn.II) CBEC for ascertaining the current address and posting of the applicant, which had been relied on 26.8.2005 that the applicant is presently awaiting his posting and available at House No. 226, Sector 15-A, NOIDA. Despite this the order of suspension dated 30.08.2005, a copy of which was marked to Shri B.S. Ganu, Chief Commissioner of Central Excise, Nagpur with a request to service the same to the applicant. Though initially only one page of the letter was received on 31.08.2005 yet a communication dated 1.9.2005 by Shri B.S. Ganu, addressed to the Chief Commissioner, Bhopal and CBEC apprised that the applicant has neither been posted to Nagpur nor mailing address of the applicant was available. On September 2,2005 on receipt of the above address vide letter dated 2.9.2005 Shri S.P. Roy, Under Secretary to the Government of India had issued the suspension order of the applicant at his residential address i.e. House No. 226, Sector 15-A, NOIDA, which was admittedly received by the applicant on 9.9.2005. This factual position is also not disputed by the respondents who have filed an additional affidavit stating that suspension order was issued and sent to the applicant vide office order by fac on 31.8.2005 and by post on 2.9.2005. The rejection of request of the applicant for voluntary retirement was sent on 31.8.2005 as well.
40. With regard to the above factual position, it is explicit that the address of the applicant at NOIDA was very much available with the respondents, knowledge of the fact that while posted at Bhopal and also in view of information that at Hyderabad the applicant is yet to be relieved and the order is kept in abeyance, yet the communication was sent to Nagpur and thereafter to Bhopal and ultimately on 2.9.2005 at the residential address of the applicant at NOIDA. As such, the dispatch of this order of suspension was by the same officer who had issued the order of suspension on 30.08.2005 and also who had sought address of the applicant on 23.8.2005 and 25.8.2005 yet the order had been dispatched at a wrong address and it is only on 2.9.2005 that the dispatch has been made at the correct address which has to be taken as a communication of order of suspension to the applicant having actually received on 9;9.2005 and the suspension has come in effect. Accordingly, on 2.9.2005, as per Khemi Rain’s case decision and in that even as the notice period for voluntary retirement had expired on 31.8.2005 when the order of suspension was not in existence till that date, the proviso to Rule 48 of the Pension Rules come in operation and the applicant is deemed to have retired on 31.8.2005 and is entitled for being treated as a retiree. However, the disciplinary proceedings and criminal trail pending on that date, law shall its own course.
41. In so far as non-challenge to the order passed by the respondents on 31.8.2005 rejecting the request of the applicant for voluntary retirement is concerned though the same was also not communicated at the correct residential address of the applicant yet if the order of suspension is not effected and non-existence till 2.9.2005 the ground to reject the request of the applicant for voluntary retirement is non est in law and even without challenge the same would not come in the way of the applicant for grant of relief prayed for in the present Original Application.
42. In the result, for the foregoing reasons, this Original Application is allowed with the following directions:
(1) It is declared that order of suspension dated 30.08.2005 ianon est in law and would not come in the way of withholding permission to the applicant to voluntary retirement;
(2) Respondents shall deem the applicant voluntary retired under Rule 48 of the Pension Rules ibid w.e.f. 31.8.2005 and the applicant would be entitled to all the retiral benefits as admissible under rules, instructions and law the same shall be paid to him within a period of three months from the date of receipt of a copy of this order. Respondents shall also consider grant of salary due to the applicant since June, 2005 till the date of retirement, in accordance with rules and instructions. No costs.