THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.22867 of 2011 Dated:23.08.2011 Between: G.Madhukar Reddy. … Petitio And Government of Andhra Pradesh, Rep.by its Principal Secretary, Environment, Forest, Science & Technology Department, Secretariat, Hyderabad, And others. ... Responde THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE K.G.SHANKAR WRIT PETITION No.22867 of 2011 ORDER: (Per Hon’ble Sri Justice V.V.S.Rao) This writ petition is filed against the order dated 13.06.2007 O.A.No.5477 of 2005 passed by the Andhra Pradesh Administrative Tribu whereby and whereunder the petitioner’s Original Application assailing Government Order, being G.O.Rt.No.124, Environment, Forest and Science Technology Department, dated 07.05.2003, was dismissed. The petitioner was originally appointed as Forest Section Office 1962. He ultimately retired from service as a Forest Range Officer 30.06.1998. While he was in service, departmental enquiry was initiated charge memo dated 02.04.1998 was served alleging that he neglec legitimate duties and failed to protect forests resulting in loss to Governm and that he failed to comply with the orders of the superiors and suppressed facts. The petitioner submitted explanation on 27.06.1998. The Conservato Forests, Adilabad, was appointed as Enquiry Officer to conduct regular enq into the articles of charges under Rule 20 of the Andhra Pradesh Civil Serv (Classification, Control and Appeal) Rules, 1991 (CCA Rules). The petitio alleges that the Enquiry Officer fixed the enquiry on 25.10.2000, 08.02.2001 20.02.2001. But, he was not aware of the enquiry. He alleges that he was served with the notice of enquiry. After completing the enquiry the Conservator of Forests submitted re holding that the charges are proved. As the petitioner retired, the matter w submitted to the Government. The Government then issued the G.O.Rt.No. directing that a cutoff of 5% in monthly pension on permanent basis be impo on the petitioner. The petitioner contended before the Tribunal that he was provided a reasonable opportunity to defend the case; that there was inordin delay in concluding the disciplinary case; that the charges framed against are vague, and do not particularize as to how the applicant is responsible for alleged lapses and that the Government failed to consider the deta explanation to the show cause notice in the proper perspective. Counsel for the petitioner relies on Union of India v Dinan Shantaram Karekar[1] and submits that in any disciplinary enquiry th should be actual service of notice of the charge sheet or the show cause no and in the absence of any such material to show that the petitioner is actu served, the entire enquiry leading to the impugned Government Orde vitiated. He nextly submits that Rule 42 of the CCA Rules was followed mor breach while serving the notice. The Original Application was dismissed by the Tribunal on 13.06.20 The petitioner approached this Court by filing the instant writ petition after m than four years. The delay and laches are not properly explained. Be that a is, while dealing with the question of service of notice, learned Tribu observed as under. On perusal of the acknowledgements of the postal department, it is seen that a notice about enquiry was sent to the applicant by registered post and it was returned by the Postal department as party refused on 18.10.2000. Therefore, it cannot be said that the respondents have not put the applicant on notice with respect to the dates of enquiry concerned. By refusing to receive the said notice which was sent by registered post, the applicant compelled the respondents to proceed ex- parte and in view of ex-parte enquiry and report thereafter submitted, the respondents have followed the procedure prescribed under the A.P.C.S. (CC&A) Rules and gave a show cause notice before imposing the punishment and after considering the explanation submitted to the said show cause notice, the impugned orders have been passed. In view of the above circumstances, it cannot be held that the respondents have proceeded with the enquiry as exparte without putting the applicant on notice, as the applicant was put on notice by registered post with respect to the dates of enquiry concerned and there is no violation of rules under A.P.C.S.(CC&A) Rules with respect to the imposition of the punishment concerned. Therefore, I do not see any merits in the O.A., and the O.A. is, accordingly, dismissed. No costs. The issue whether there was proper service of notice of enquiry question of fact. The Tribunal being the final fact finding authority has veri the records and recorded a finding that when the notice of enquiry was sen registered post with acknowledgement due, the petitioner refused to receive same on 18.10.2000. The refusal to receive the notice amounts to ac service as held by the Supreme Court in C.C.Alavi Haji v Palap Muhammed[2], wherein it was held. 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 die 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 AIR 1992 SC 1604 = (1992) 1 SCC 647; State of M.P. v. Hiralal (1996) 7 SCC 523 = [1996] 1 SCR480 and V. Raja Kumari v. P.Subbarama Naidu (2004) 8 SCC 774 = 2005 CriLJ 127 ). 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. Rule 42 of CCA Rules 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. Explaining the scope of Rule 42 of the CCA Rules a Division Benc this Court consisting one of us (Justice V.V.S.Rao) in S.S.Hari Prasa District and Sessions Judge – cum – Disciplinary Authority[3] observed under. 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. Insofar as service of notice under Rule 42(ii) of the CCA Rules i.e. registered post to the address given by the delinquent Officer, this Court re on C.C.Alavi Haji and held that if a communication is sent by registered pos the address given by the employee or to a known place of residen presumption under Section 27 of the General Clauses Act, 1897, springs action and shall be deemed to be served. The other two submissions raised before us do not fall for consideration because, it appears, they were not raised before the Tribuna the petitioner had raised the submissions and they were not conside nothing prevented the petitioner to file a review petition, but the very fact that petitioner kept quiet for more than four years and filed the instant writ peti shows that the petitioner’s actual grievance is about the non-service of notic enquiry. On this aspect we are satisfied that the finding of the learned Tribu does not warrant any interference nor it is vitiated by grave error apparent on face of the record. The writ petition fails, and is accordingly dismissed without any order a costs. _____________ (V.V.S.RAO ________________ (K.G.SHANKAR .08.2011 vs [1] 1998 (6) Supreme 534 = AIR 1998 SC 2722 = (1998) 7 SCC 569 [2] (2007) 6 SCC 555 [3] 2008 (5) ALD 751 = 2008 (6) ALT 625