IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.11.2008 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.No.25915 of 2006 (O.A.No.6580 of 1995) M.Mayakal ... Petitioner Versus The District Forest Officer, Madurai Division, Madurai. ... Respondent The petition came to be numbered by transfer of O.A.No.6580 of 1995 from the file of the Tamil Nadu Administrative Tribunal praying for Certiorarified Mandamus, to call for the records relating to the order of the respondent, dated 31.05.1994, issued in the reference No.Na.Ka.1526/93/E2, quash the same and to direct the respondent to pay all the terminal benefits due in respect of Mr.Mokkanayan. For Petitioner : Mr.R.Muthukannu For Respondent : Mr.P.Sathish, Government Advocate O R D E R A moot point which has arisen in this Writ Petition is whether the wife of the deceased Government servant can challenge the order of removal after his death. 2. Facts leading to the Writ Petition are as follows: The petitioner's husband, Mr.K.Mokkanayan, was initially appointed as Plot Watcher and after serving for nearly 15 years, he was appointed as Forest Reserve Watcher. A charge memo, dated 05.02.1993, was served on her husband, alleging that he had produced a false educational Certificate, mentioning that he had studied upto 5th Standard. According to the petitioner, when the disciplinary proceedings were pending, her husband died on 31.05.1994. An information was sent to the District Forest Officer by telegram on 04.06.1994. After a lapse of seven months, in January' 1995, an order of removal dated 31.05.1994 passed by the respondent, was served on the petitioner. Challenging the order of removal, the petitioner has filed Original Application before the Tamil Nadu Administrative Tribunal, and prayed for a direction to set aside the same with a consequential direction to the respondent to pay all the terminal benefits and the same has been subsequently transferred to this Court and renumbered as present Writ Petition. 3. The respondent in his counter affidavit has submitted that the petitioner's husband was initially engaged as Plot Watcher on Muster Roll basis. As per the directions of the Principal Chief Conservator of Forests in No.P1/10227/89, dated 24.10.1991, a panel of eligible and qualified Plot Watchers, engaged prior to 08.07.1980, for appointment as Forest Watcher was prepared. The petitioner's husband was selected based on his educational qualification by the Conservator of Forests, Madurai Circle, with instructions to appoint him temporarily at Madurai Division and to verify the genuineness of the educational Certificate produced by him, which was the only available document to determine his age. The said certificate was referred to the District Educational Officer, Usilampatty, for verification and report. On verification, the Educational Officer in his proceedings in C.No.5345/A4/92, dated 28.10.1992, reported that the certificate produced by the petitioner's husband was not genuine. Therefore, for production of a false educational Certificate, the petitioner's husband was placed under suspension on 27.11.1992 and a charge memo, dated 05.02.1993, under Rule 17(b) of the Discipline and Appeal rules was issued. 4. The respondent has further submitted that after following the procedure contemplated under the above said rules, a final order of removal was passed on 31.05.1994 by the respondent and the same was sent to the individual through Usilampatti Forest Ranger on 11.06.1994. But the Forest Ranger in his letter dated 07.07.1994 reported that the order could not be served, as the individual had died. Thereafter, the Forest Ranger, Usilampatti, was instructed to serve the order of penalty on the petitioner. Copy of the order of removal, dated 31.05.1994 was submitted to the higher officials, viz., Principal Chief Conservator of Forests, Chief Conservator of Forests (Development) and Conservator of Forests, Madurai Circle on 11.06.1994. Though the petitioner's husband had received the subsistence allowance for the month of May'1994 on 31.05.1994, there was no information about his death till 04.06.1994. 5. The respondent has further submitted that the enquiry officer's report was prepared on 03.05.1994, holding that the charges as proved. It was served on the government servant on 20.05.1994. The final order of removal was passed on 31.05.1994, the date on which, he died. The respondent has contended that the order of removal had come into effect from the moment it is signed in the Office Note and therefore, the master and servant relationship had already been terminated with effect from 31.05.1994. 6. The respondent has further submitted that though the qualification for the post of Forest Watcher is ability to read and write in Tamil, the age and date of retirement etc., were to be determined based on the date of birth furnished in the educational Certificate. As the deceased government servant had produced a false certificate as proof of date of birth, charges were framed against him and on enquiry, they were held as proved. As finding of fact had been recorded on evidence and considering the gravity of charge, the respondent has submitted that the petitioner is not entitled to the relief sought for in the Writ Petition and hence prayed for dismissal. 7. Mr.R.Muthukannu, learned counsel for the petitioner submitted that as per the Tamil Nadu Civil Services (Discipline and Appeal) Rules (hereinafter referred to as "the rules"), if a government servant dies during the pendency of a disciplinary proceedings, it stands abated and consequently, the legal representatives are entitled to the terminal benefits. He further submitted that the petitioner's husband had received the subsistence allowance on 31.05.1994 and died on the same day. According to him, the order of removal/dismissal/compulsory retirement would be effective only from the date of its communication and inasmuch as the department had taken nearly seven months to serve the order of removal on the petitioner, the impugned proceedings are void abinitio and therefore, she is entitled to the terminal and death cum retirement benefits, due and payable by the department. 8. Learned counsel for the further petitioner submitted that in the case of suspension, there is every possibility for the government servant to purposefully evade the order of suspension and therefore, it could be even contended that suspension comes into effect the moment the order is signed in the Office records. According to him, suspension would come into effect, even if the order is not served on the government servant. Whereas, the order of dismissal/removal/compulsory retirement being major penalties, terminating the services of a government servant with the employer, the word "Communication" should be interpreted to mean that the order of penalty should necessarily be served on the Government servant and it would come into effect only, when it is actually served on the government servant. As the petitioner's husband died on 31.05.2004, before the order of removal could be served on him, he submitted that it did not come into effect and consequently, the disciplinary proceedings initiated against the petitioner's husband is abated on the death of the government servant. In support of his contention, he placed reliance on various decisions, which are dealt with in the latter paragraphs. 9. Learned counsel for the respondent reiterated the averments made in the counter affidavit and prayed to sustain the impugned order. Heard the learned counsel appearing for the parties and perused the materials available on record. 10. Analysis of few cases of the Supreme Court on this aspect, as to when the order of suspension or dismissal comes into effect, would be relevant for the purpose of adjudication. 11. In State of Punjab v. Amar Singh Harika, reported in AIR 1966 SC 1313, one of the questions posed before the Supreme Court was whether the order of dismissal can be said to be effective from the date, when it was made known or communicated to the concerned public servant. In the above reported case, though the order of dismissal was passed on June 3, 1949, and a copy thereof was sent to six other persons noted thereunder, no copy was sent to the concerned public servant, who came to know of it only on May 28, 1951 and that too, through another officer. Rejecting the contention of the official respondent that the order became effective as soon as it was issued, the Supreme Court, held that mere passing of the order of dismissal would not make it effective, unless it was published and communicated to the concerned officer. 12. Meaning of the word, "communicate" came to be interpreted by the Apex Court in State of Punjab v. Khemi Ram reported in AIR 1970 SC 214, wherein, the question for consideration was whether the order of suspension passed against a Government servant takes effect when it is made ready or when it is actually served on and received by him. Short facts of the reported case are that the respondent therein was appointed as Sub Inspector, Co-operative Societies Department in the service of the State of Punjab and gained his promotion. While he was serving as Inspector of Co- operative Societies, he applied for the post of Assistant Registrar in Himachal Pradesh and on reference by the Government of Punjab, his services were lent to Himachal Pradesh Government for appointment as Assistant Registrar. While he was serving in Himachal Pradesh, he was charge sheeted on August 9, 1955, by the Registrar, Co-operative Societies, Punjab, in connection with certain matters which occurred in 1950, while he was working under the Punjab Government. The Government of Punjab decided to take disciplinary action against the respondent and informed the Himachal Pradesh Government of it on July 17, 1958. The Himachal Pradesh Government had granted him 19 days leave preparatory to retirement, which was to take place on August 4, 1958. The Punjab Government by its telegram, dated July 25, 1958 informed the Himachal Pradesh Government that they have no authority to grant such leave and requested that the deputationist be reverted to Punjab Government immediately. On July 31, 1958, the Punjab Government sent a telegram to the respondent at his residence. But the respondent had already left for his home town on leave being granted to him as aforesaid. The said telegram read that the respondent was suspended from service with effect from 2nd August, 1958. On the very next day, the Punjab Government sent a charge sheet to the respondent at the address of the Registrar, Co-operative Societies, Himachal Pradesh, who re-directed it to the respondent's home address. Immediately, by its letter dated August' 2, 1958, the Himachal Pradesh Government informed the respondent that his services were reverted to the Punjab Government and that the leave granted to him had been curtailed by two days, i.e., upto August 2, 1958, instead of August 4, 1958, as originally granted. On August 25, 1958, the respondent sent a representation to the Registrar, Co-operative Societies, Punjab, in which, he contended that he had already retired from service on August 4, 1958 and that the order of suspension which he had received after that date and the order for holding the enquiry against him were both invalid. On completion of the enquiry, the Punjab Government dismissed the respondent from service. In the factual background, the Supreme Court, at Paragraphs 16 and 17, held as follows: "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 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. 17. In this view, we must hold that the order of suspension was validly passed and was communicated to the respondent before August 4, 1958, and therefore, was effective as from July 31, 1958. Accordingly, we allow the States appeal and set aside the judgment and order of the High Court. But as the High Court did not decide the aforesaid three questions raised on behalf of the respondent, we remand the case to the High Court with the direction to give its decision thereon in accordance with law. The cost of this appeal will be costs before the High Court." 13. In B.J.Shelat v. State of Gujarat reported in AIR 1978 SC 1109, the Supreme Court had an occasion to consider a case of a Magistrate, who tendered his application, for voluntary retirement on completion of 50 years on 4th December 1961. Before the said date, the Chief Judicial Magistrate, Ahmedabad, on 23th November, 1973, informed him that under the directions of the Chief Justice and Judges of the High Court of Gujarat, he is called upon to submit his explanation as regards certain allegations made in the affidavits. The Judicial Magistrate submitted his explanation on 26th November, 1973. On 11th December, 1973, the High Court issued an order of suspension, as the High Court was of the view that it was desirable to suspend the petitioner pending finalisation of departmental proceedings against him which were under contemplation. Subsequently, he was dismissed from service. Writ Petition filed challenging the order of dismissal was also dismissed. The While testing the correctness of the order of dismissal passed by the High Court with reference to Rule 56 of the Fundamental Rules and Rule 161(1)(aa) of the Bombay Civil Services Rules, the Supreme Court observed that, "But proviso (b) to Sub-Rule 56(k) states that it is open to the appropriate authority to withhold permission to a Government Servant under suspension, who seeks to retire under this clause. Thus under the Fundamental Rules issued by the Government of India also the right of the Government servant to retire is not an absolute right but is subject to the proviso whereunder the appropriate authority may withhold permission to a Government servant under suspension. On a consideration of R.161(2)(ii) of the proviso, we are satisfied that it is incumbent on the Government to communicate to the Government servant its decision to withhold permission to retire on one of the grounds specified in the proviso." 14. In the above reported case, the Judicial Magistrate was not under suspension, when he attained the age of superannuation and no departmental proceedings were pending or under contemplation, as required under the proviso. On the facts of this case, the Supreme Court held that the appointing authority has no jurisdiction to take disciplinary proceedings against a Government servant, who had effectively retired. 15. An appeal preferred under the Motor Vehicles Act was rejected out of time. While determining the starting point for filing an appeal under the above said statute, the Supreme Court in The Assistant Transport Commissioner, Lucknow v. Nand Singh reported in AIR 1980 SC 15, at Paragraph 2, held that, "the date of communication of the order will be the starting point of limitation for filing an appeal under Section 15. Mere writing an order in the file kept in the Office of the Taxation Officer is no order in the eye of law in the sense of affecting the rights of the parties for whom the order is meant. In a given case, the date of putting the order in communication under certain circumstances may be taken to be the date of the communication of the order but ordinarily and generally speaking the order would be effective against the person affected by it only when it comes to his knowledge either directly or constructively, otherwise not." 16. In MCD v. Qimat Rai Gupta reported in 2007 (7) SCC 309, the Supreme Court explained the importance of communication of an order to a person whose status is affected. At Paragraph 27 of the judgment, the Court held that, "27.What is, therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, the order is required to be communicated. 17. In Union of India v. S.P.Singh reported in 2008 (3) Supreme 609, a member of an Indian Revenue Service submitted an application, dated 10.05.2005 seeking voluntary retirement, w.e.f. 1st September 2005, on having completed 30 years of qualifying service. A communication, dated 25th August, 2005, was sent to his residential address asking him to deposit some outstanding dues, so that his request could be finalised. However, on 9th September 2005, he received an order, dated 30th August 2005, placing him under suspension. By another order, dated 31st August, 2005, his request for voluntary retirement was declined. He challenged the same before the Central Administrative Tribunal and after adjudicating the dispute, the Tribunal held that the order was despatched to a wrong address and therefore, not effective as the order had actually been received by the Government servant only on 9th September 2005, whereas, he had retired on 1st September 2005. The Writ Petition filed before the High Court was dismissed and the Union of India preferred an appeal. Following the earlier decision in State of Punjab v. Amar Singh Harika reported in AIR 1966 SC 493, the Supreme Court dismissed the appeal with following observations: "the department was well aware that the respondent was residing in NOIDA and had reported for duty before the Board on 21st June, 2005 as the incumbent in Hyderabad had refused to make way for him, yet the suspension order had been sent to Nagpur. We are therefore of the opinion that though the suspension order had been dispatched by facsimile before 1st September 2005 yet it had been dispatched to the wrong address and could not be deemed to have been communicated to the respondent." 18. An order of dismissal terminates the status of a government servant from service. It has civil consequences, affecting his service and monetary benefits. The relationship between the Government and its servant is severed when the government servant is inflicted with a major penalty of dismissal or removal, entailing deprivation of benefits of his length of service, like pension and other benefits under the Social Security Schemes. A Government servant, who is removed, is not in a better position than the one who is inflicted with a punishment of dismissal, excepting the right to seek for fresh appointment. In the case of compulsory retirement, the government servant is entitled to atleast monetary benefits on account of his contribution, made by him during the period of service and retiral benefits. Therefore, when the order of dismissal or removal, terminates the relationship between the employer and employee and brings to an end the status of a government servant, mere writing of an order and keeping it in the Office file, shall not be treated to be an order terminating his services nor shall the order be deemed to have been communicated. As the order of dismissal/removal, adversely affects the rights of a government servant, such an order passed by the appointing/disciplinary authority and kept in the file, without communicating it to the officer concerned, in the manner known to law, does not take effect, from the date on which, the order is written by the said authority. The order imposing major penalty would be effective only when it is communicated to the government servant, so as to provide him an opportunity to take recourse to law. 19. As stated supra, Communication of an order of dismissal/removal/compulsory retirement, i.e., actual service in accordance with the procedure, is Mandatory. In the case on hand, husband of the petitioner was facing a disciplinary proceedings. As per the Counter affidavit, the enquiry report was drawn on 03.05.1994 and it was served on the petitioner's husband on 20.05.1994. Perusal of the files produced by the State counsel, at Pages 269 to 272 reveals that the deceased government servant had submitted his further representation dated 25.04.1994 to the District Forest Officer, Madurai Forest Division, Madurai, through proper channel. At Page 271 of the File, there is an acknowledgment of the said explanation, wherein, the Officer concerned had affixed his initial and the date is mentioned as 26.05.1994. Similarly, there is also an acknowledgment at page 269, wherein, some other officer had noted as follows: "RP 2553/26.05.94, Osilampatti" 20. There is also an official seal of the District Forest officer, Madurai Division, Madurai, dated 30.05.1994, acknowledging the receipt of further explanation submitted by the deceased government servant. The Forest Range Officer, Usilampatti Range, who had received a copy of the further explanation, has forwarded the same to the Madurai Divisional Forest officer, by his proceedings in Mu.Ka.No.211/94, dated 26.06.1994, which had been acknowledged by the District Forest Officer on 26.06.1994. Perusal of the files, makes it clear that before the death of the government servant, his further representation