Andhra HC (Pre-Telangana)
Sri G. Mallikharjuna Rao, Formerly ... vs High Court Of Andhra Pradesh, ... on 18 June, 1991
Equivalent citations: 1991(3)ALT132
JUDGMENT
1. A very extraordinary question arises for consideration in this case Viz., can a delinquent officer, who is punished after due compliance with procedural requirements under relevant Rules, urge that the order of punishment is not effective in spite of its publication in the Gazette and repeated attempts to serve the same on him in person and by registered post, and that such an order is not effective till he actually receives the same. The learned single Judge has gone into this question in considerable detail.
2. It is a fact that G.O.Ms.No. 602, General Administration (Sc.F) Department, dated 7-11-1990 dismissing the delinquent officer from service was published in the official Gazette on 14-11-1990. The High Court on receipt of a copy of the Government Order, sought to serve that order on the delinquent officer by requiring the District Judge, Guntur to serve the same on him. The District Judge sent different process Server on different dates for service of the Government Order on the delinquent officer i.e., from 20-11-1990 to 30-11-1990, and finally service of that order was sought to be effected through Amin on 1-12-1990, but3-12-1990and21-12-1990 the same could not be served on him. On a perusal of the report submitted to the District Judge by different Process Servers and Amin, the delinquent officer was District Judge was convinced that the delinquent officer was deliberately evading receipt of the Government Order. Thereafter, the High Court sought to serve that order on the delinquent officer direct by registered post with acknowledgement due but that was returned by postal authorities with an endorsement dated 10-12-1990 as "left without instructions". On these facts, the learned single Judge held that the High Court was right in holding that the first date on which the District Judge sought to serve that order on the delinquent officer i.e., 20-11 -1990, would be taken as the date of service of the Government Order on the delinquent officer. We should note that the date of publication of the Government Order in the Official Gazette., on which ordinarily the order shall be effective, is 14-11-1990. The effect of the order of the High Court was to grant the delinquent officer a longer lease in service upto 20-11-1990.
3. Three modes of communication were attempted as is clear from the order of the High Court and the Judgment under appeal. The first was by publication of the Government Order by the State Government in the official Gazette on 14-11-1990. The Second was by seeking to serve that order on the delinquent officer in person on the address furnished by him while he was under suspension. This mode was repeatedly attempted through process servers from 20-11-1990 to 30-11-1990 and through Amin on 1-12-1990,3-12-1990 and21-12-1990. The third mode adopted was by sending the Government Order by registered post with acknowledgement due to the delinquent officer and the same was returned without service with an endorsement that the addressee left without instructions.
4. Counsel for the Appellant/delinquent officer invited our attention to Rule 19(2) (f) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, and submitted that publication in official Gazette is the last method of service and could have been resorted to only after the Government Order was sought to be served on the delinquent officer by registered post, and should not have proceeded the other two modes of service. In deciding a question of communication, what we have to see is, as to whether an attempt was made to impart, confer or transmit information. We are satisfied that the publication of the Government Order in the gazette on 14-11-1990 was enough communication because, it sought to impart or transmit information relating to dismissal from service to the delinquent officer. We are also satisfied that all reasonable attempts were made by the High Court to communicate the Government Order to the delinquent officer by sending process Serves/ Amin repeatedly to the address which he had furnished while under suspension. We are satisfied that all reasonably possible efforts were made to communicate the Government Order to the delinquent officer and, if he keeps away, he is not entitled to be heard to say that there was no effective communication of the Government Order on him.
5. Counsel for the appellant-delinquent officer brought to our notice three decisions of the Supreme Court Viz., Bachmittar Singh v. State of Punjab, State of Punjab v. Amar Singh, ; and State of Punjab v. Khemi Ram, . In the first of the decisions what the Supreme Court had to consider was, whether an order made in the file but not communicated would be an effective order. The Supreme Court held that, unless the order is properly drawn up and communicated there is no order at all. Situation like that does not arise in the present case for, the order was duly drawn up and sought to be communicated by publication in the gazette, personal service through messengers and by registered post. We should also notice that final order, judicial in character, terminating disciplinary proceedings was not formally issued in the case which was considered by the Supreme Court in the decision. It is in the context of non communication of the order duly drawn up that the observations on which Counsel for the appellant-delinquent officer places reliance were made by the Supreme Court.
6. In the Second decision i.e., in Amar Singh's case, the Supreme Court observed:
"An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned.....................................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".
That decision arose, as is evident from the above extract, in a case where an order of dismissal was passed in file but was not communicated. The Supreme Court observed that, in such a situation it is theoritically possible that, unlike in a case of judicial order pronounced in court, the authority may change its mind and decide to modify its order, and that can happen any time before the order is actually communicated or published. The facts of the present case indicate that the order was not only formally drawn up but communicated to the High Court, published in the gazette and communicated to the delinquent officer. Therefore, the observations, of the Supreme Court in the above decision are of no assistance to the appellant - delinquent officer.
7. The Third decision viz., Khami Ram's case, makes the entire position absolutely clear. We may usefully extract portions from paragraph 16 of the Judgment dealing with the very question as to when the order is said to be communicated. In that decision, a distinction was sought to be made between communication of the order of suspension and communication of an order of dismissal. But, the general observations are of considerable assistance in the present case. The Supreme Court observed:
"The question then is whether communicating the order means its actual receipt by the concerned Government Servant. The order of suspension 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 (of Shorter Oxford Dictionary, Vol.1 , P. 352) . As already stated, telegram dated July 3 land August 2,1958, were despatched to the respondent at the address given by him where communication by Govt. 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 is 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 what so ever of its changing its mindor 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 (supra) 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 on his case there is no question of his doing any act or passing any order and such act or order being challenged as invalid".
We are of opinion that the above observations of the Supreme Court squarely apply to the present case. The delinquent officer was to retire on 31-1-1991. The order was passed against him on 12-11-1990, and published in the Gazette on 14-11-1990. He was under suspension continuously from 25-3-1987. No complications relating to discharge of duties of the office nor complications in making alternative arrangement in the place of the officer to be dismissed would, therefore, have arisen in the present case. We also find that repeated attempts were made to serve the order on the delinquent officer and according to the report of the district Judge, such attempts were thwarted by him. Even at attempt to serve the order on him by registered post at the address given by him could not be effective as is evidenced by the endorsement of postal authorities that the addressee left without instructions.
8. In view of the above facts, we are satisfied that the High Court was right in assuming that the date of service of the order must be the date on which the order was sought to be served on the delinquent officer for the first time through process server i.e., 20-11-1990.
9. We should also hold that the manner of service indicated in Rule 19 (2) (f) or the Andhra Pradesh Civil Service (Classification, Control and Appeal) Rules is only directory and not mandatory. It is only an executive action of serving an order. It is only an indication of the manner in which an order can be served. The order has already been published in the gazette on 14-11-1990 by virtue of which the delinquent officer is fixed with knowledge of his dismissal from service. Even otherwise, we are of opinion that the modes indicated for service of the order are only directory and regulatory, and not mandatory. Even if there was non-compliance with the procedure provided by the Rules, the action cannot be invalidated muchless can it be said that the procedure of publishing the order earlier than attempting to serve it directly on the delinquent officer will invalidate the order itself. It should rather be the other way. Because of the anxiety to intimate the delinquent officer about the order of his dismissal from service, the well-known procedure of publication in the gazette was attempted earlier. The order in which the three modes of services are indicated in the rules does not appear to us to be mandatory and any departure threfrom does not appear to us to invalidate the order of dismissal of the delinquent officer.
10. We are persuaded to hold that there was anxiety on the part of the delinquent officer to avoid service owing to the fact that he was due to retire on 31-1-1991, this was a conduct which was depricated by the Supreme Court in the decision in Khemi Ram's Case.
11. One more curious contention is raised before us, that before passing the order on the basis of the report of the District Judge relating to the manner of attempted service, the High Court ought to have notified the delinquent officer. We feel that process of service of order has no judicial or quasi-judicial element in it. It is absolutely an executive process of service of an order, and we are satisfied that all the requirements indicated in the three decisions cited by Counsel for the appellant-delinquent officer were duly complied with in passing the order. If we are to accept the submission of Counsel for the appellant-delinquent officer, it would be as if every civil court in the country whom action on reports of process serves shall give separate notice to parties to litigation relating to the manner in which process was served or service of process was attempted. We do not know of any law which obligates such extension of principles of natural justice to an unnatural extent.
12. In view of the above, the appeal deserves to be dismissed and we do so, No Costs. Advocate's fee Rs. 350/-.