* THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE G.CHANDRAIAH +WRIT PETITION No.19845 of 2007 % Dated 23-07-2008 # S.S.Hari Prasad, S/o.Late Seetharamaiah. … Petitioner VERSUS $ The District and Sessions Judge – cum – Disciplinary Authority, Visakhapatnam, and another. … Respondents. ! Counsel for Petitioner: Sri G.Vidyasagar ^Counsel for the respondents: (SC for APHC) P.V.Sanjay Kumar <GIST: >HEAD NOTE: ? Cases referred 1. (2007) 6 SCC 555 2. (1992) 1 SCC 647 = AIR 1992 SC 1604 3. (1996) 7 SCC 523 4. (2004) 8 SCC 774 = 2005 SCC (Cri) 393 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.19845 of 2007 Between: S.S.Hari Prasad S/o.Late Seetharamaiah R/o.D.No.50-109-3, TPT colony, Seethammadhara Visakhapatnam-530016 ..... PETITIONER AND 1 The District and Sessions Judge-cum-Disciplinary Authority Visakhapatnam 2 The Enquiring Authority-cum-Special Judge, for CBI Cases Visakhapatnam .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an order direction or writ more particularly one in the nature of writ of mandamus or any other appropriate writ declaring the proceedings of the 2nd respondent dated 11.7.2007 and consequential proceedings of the District and Sessions Judge cum Disciplinary Authority, Visakhapatnam order DE.No.3/2006 dated 25.7.2007 is illegal, arbitrary, and in violation of the principles of natural justice and consequently direct the respondents to reopen the enquiry and permit the petitioner to participate in the disciplinary proceedings from the stage of submission of written statement and (ii) declare the proceedings of the District and Sessions Judge, Visakhapatnam in Order DE.No.3/2006 dated 30.7.2007 in refusing the furnishing the copy of the Memorandum of charges and other proceedings initiated disciplinary action against the petitioner as illegal, arbitrary, and unjust and consequently direct the 1st respondent to furnish the proceedings initiating the disciplinary action against the petitioner and all other documents sought for in his representation dated 28.7.2007 and other documents filed during the course in inquiry and pass such other order or orders as this Hon’ble Court may deem fit and proper in the interest of justice. Counsel for the Petitioner: SRI G.VIDYASAGAR Counsel for the Respondents: (SC FOR APHC),P.V.SANJAY KUMAR The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITION No.19845 of 2007 ORDER: (per Hon’ble Sri Justice V.V.S.Rao) The Writ Petition is filed seeking a writ of mandamus declaring the proceedings of the second respondent dated 11.07.2007 whereby and whereunder the application filed by the petitioner to condone the delay in his appearance and permit him to appear before the enquiring authority in the matter of regular departmental enquiry ordered by first respondent was rejected. The petitioner also assails the proceedings of first respondent dated 30.07.2007 whereby and whereunder the application of the petitioner which was filed by way of appeal against the proceedings of the second respondent was rejected. Along with the said order, a Xerox copy of the proceedings dated 27.01.2006 placing the petitioner under suspension was communicated to him. The petitioner at the relevant time was working as Superintendent in the Court of III Additional Chief Metropolitan Magistrate, Visakhapatnam at Gajuwaka. He was an accused in Crime No.346 of 2005 filed by Punjab and Sind Bank under Sections 468 and 471 of Indian Penal Code, 1860. The petitioner went on extraordinary leave from 19.09.2005 and later came to know that the first respondent initiated disciplinary action and placed him under suspension by an order dated 27.01.2006 on the ground that a criminal case is registered against him. Charges were framed, and the Special Judge for CBI Cases, Visakhapatnam was appointed as an Enquiry Officer to enquire into allegations and charges against the petitioner and another co-employee. Petitioner statedly made a representation to permit him to participate in departmental proceedings and also submit written statement. He also prayed to stop further disciplinary proceedings till he is permitted to submit a written statement. As noticed supra, the said request was rejected by the second respondent as well as the first respondent. Learned District Judge has filed a counter affidavit in which the circumstances and events leading to the disciplinary proceedings against the petitioner and another employee are traced. Insofar as the same is relevant to the controversy in the Writ Petition, it is alleged that the second respondent issued notices under Rule 20(7) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (hereafter called, CCA Rules), that notices were returned unserved as the petitioner and another were absconding, and as they failed to submit written statements, the Enquiry Officer issued notices under Rule 42(iii) of CCA Rules by causing publication of notices in Andhra Pradesh Gazette on 24.08.2006, and as the petitioner failed to appear, he cannot now be permitted to participate in the enquiry. Along with the counter affidavit, the respondents have filed various documents including the statement of articles of charges (at page Nos.77 to 91 of paper book). A copy thereof is also served on the learned Counsel for the petitioner. This Court heard the learned Counsel for the petitioner and the learned Standing Counsel for High Court of A.P. Rule 42 of CCA Rules provides for service of orders, notices and reads as under. 42.Service of orders, notices etc:-Every order, notice and other process made or issued under these rules shall – (i) if he is on duty, be served on the Government servant by delivering or tendering it in person; (ii) if he is on leave or under suspension or otherwise absent be communicated to him by registered post to the address given by him, if any, or of his usual place of residence; (iii) if it cannot be so served or communicated, be published in Andhra Pradesh Gazette. A plain reading of the above would show that the method and manner of serving notice provided under clauses (i), (ii) and (iii) of Rule 42 of CCA Rules is not simultaneous. Each method is alternative to the other previous method. To be more clear, as far as possible, every order, notice and other process made under CCA Rules shall be served by delivering or tendering it to the person, if the Government servant is on duty. If the same is not possible, Rule 42(ii) of CCA Rules provides that the communication may be sent by registered post to the address given by him or to his place of residence. This eventuality arises when the charged officer is under suspension or otherwise absent or in a given case allegedly absconding from employment. If the method provided under clause (i) and clause (ii) of Rule 42 of CCA Rules is not possible, then only notice can be served or communicated by publishing in Andhra Pradesh Gazette. The first phrase “if it cannot be so served or communicated” would clearly indicate that only when the notice or order cannot be served under Rule 42(i) and Rule 42(ii) of CCA Rules, the method of serving and communicating the order or notice as provided under Rule 42(iii) of CCA Rules can be resorted to. In this case, a perusal of the record placed before us would show that the notice under Rule 42(ii) of CCA Rules was not sent by registered post, which itself is in contravention of the relevant Rule providing for service of order or notice by registered post. Be it noted, if a communication is sent by registered post to the address given by an employee or to a known place of residence, the presumption under Section 27 of the General Clauses Act, 1897, springs into action and it shall be deemed to be served. In a recent judgment in C.C.Alavi Haji v Palapetty Muhammed[1], the Supreme Court while dealing with this aspect laid down as under. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and is returned with a postal endorsement “refused” or “not available in the house” or “house locked” or “shop closed” or “addressee not in station”, due service has to be presumed (vide Jagdish Singh v. Natthu Singh [2] ; State of M.P. v. Hiralal [3] and V.Raja Kumari v. P.Subbarama Naidu [4] ). It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved. In view of the above, we are not inclined to countenance the submission of the respondents that publication of the notice in the Gazette dated 24.08.2006 is sufficient compliance with the Rule. Therefore, we are of considered opinion that the petitioner, who, statedly, is always willing to participate in the enquiry, should be given an opportunity. Indeed, a reading of Rules 20 and 21 of CCA Rules would show that there cannot be any effective disciplinary enquiry either by the disciplinary authority or enquiring authority without participation of the charged officer. At the stage of serving articles of charges, at the stage of submitting written statement, and at the stage of enquiry, the law contemplates fairness to the charged officer. If a charged officer, who is willing to participate in the enquiry, is denied of such an opportunity, it would be unfair and goes contrary to the spirit of CCA Rules. We are also of considered opinion that to avoid further delay, the petitioner may now submit written statement within a period of two weeks from the date of receipt of a copy of this order. It is needless to mention that all the material including articles of charges are served on the learned Counsel for the petitioner today. As and when the petitioner submits written statement, the enquiring authority shall proceed with the enquiry in accordance with Rule 20 of CCA Rules and submit a report after completion of the enquiry within a period of four months. Be it noted that this Court has not expressed any opinion on the merits of the case. The Writ Petition is disposed of accordingly with the above observations and directions. No costs. ____________ (V.V.S.RAO, J) _________________ (G.CHANDRAIAH, J) 23.07.2008 vs To 1. The District and Sessions Judge-cum-Disciplinary Authority Visakhapatnam 2. The Enquiring Authority-cum-Special Judge, for CBI Cases Visakhapatnam 3. 2CD copies Form-NIC-OGS/WP{TRK} [1] (2007) 6 SCC 555 [2] (1992) 1 SCC 647 = AIR 1992 SC 1604 [3] (1996) 7 SCC 523 [4] (2004) 8 SCC 774 = 2005 SCC (Cri) 393