THE HON’BLE SRI JUSTICE V.ESWARAIAH & THE HON’BLE SRI JUSTICE P.SWAROOP REDDY <+ WRIT PETITION No.16258 of 2004 % WEDNESDAY, THE TWENTYFOURTH DAY OF JUNE, TWO THOUSA AND NINE # The Telecom District Manager, Guntur District and 2 others ….Petitioners Versus $ R.Gopala Rao …..Respondent ! Counsel for the PetitionerS : Mr.B.NARASIMHA SARMA ^ Counsel for the respondent : PARTY-IN-PERSON < Gist : > Head Note: ? Cases Referred 1. (2006) 1 Supreme Court Cases 589 2. AIR 1998 Supreme Court 2722 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTYFOURTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.16258 of 2004 Between: 1 The Telecom District Manager, Guntur District - 522 050 2 The Chief General Manager, Telecommunications, A.P. Hyderabad - 500 001 3 The Director General Telecom, (representing Union of India) New Delhi - 110 001 ..... PETITIONERS AND R.Gopala Rao, S/o R.Seshavatram, R/o Chirala, Prakasam District .....RESPONDENT 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 or direction, more particularly in the nature of Writ of Certiorari to call for the records in OA No.1327/1994 on the file of the Central Administrative Tribunal, Hyderabad Bench, and declare the order in OA No.1327/1994 on the file of the Central Administrative Tribunal, Hyderabad Bench dated 26-07-2004 and quash the same Counsel for the Petitioner: MR.B.NARASIMHA SARMA Counsel for the Respondent No.: PARTY-IN-PERSON The Court made the following: Form-NIC-OGS/WP{VSR} THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.16258 of 2004 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) This writ petition is filed challenging the order of the Central Administrative Tribunal, Hyderabad (hereinafter referred to as “the Tribunal”) in O.A.1327/1994, dated 26.07.2004. 2. While the respondent was working as a Junior Engineer, Bapatla, a charge was framed against him in September, 1983 for his unauthorized absence from duty from 01.05.1983 without proper permission. The enquiry was conducted and pursuant to the enquiry report dated 12.07.1984, he was dismissed from service, vide proceedings of the Director, Tele-Communications, Guntur, dated 10.08.1984. Aggrieved by the same, the respondent filed appeal before the appellate authority and the appellate authority i.e. General Manager, Telecom, A.P.Circle, Hyderabad, by order dated 01.06.1985 reduced the punishment of dismissal to that of the compulsory retirement. Aggrieved by the aforesaid orders, the respondent filed O.A.1327/1994 and the Tribunal by order dated 26.07.2004 allowed the O.A. as under: “In the result, this O.A. is allowed. The impugned orders passed by the Director, Telecom, Guntur dated 10.08.1984 and the impugned order dated 01.06.1985 passed by the 2nd respondent are hereby set aside. As a consequence, the respondents are directed to reinstate the applicant into service. Liberty is reserved to the disciplinary authority to hold fresh inquiry, if he feels it necessary, after service of charge memo on the applicant. Depending on the result of the fresh inquiry to be conducted, the said authority may decide the question of granting any consequential benefits to the applicant. In case it is felt that no fresh inquiry need be held at this distance of time, the competent authority may decide the question of granting consequential benefits to the applicant, as per rules, including regularization of absence period, by grant of such leave as may be admissible to the applicant. There shall be compliance with this order within a period of one month from the date of receipt of a copy of this order. In the circumstances, we direct the parties to bear their respective costs.” Aggrieved by the afore said order, the Telecom District Manager, Guntur, the Chief General Manager, Telecommunications, A.P. Hyderabad and the Director General, Telecom (representing Union of India, New Delhi) filed this Writ of Certiorari to set aside the said order of the Tribunal. 3. Heard both sides at length. 4. The factual matrix of the case is as follows:- The respondent while working as Junior Engineer (Groups) Bapatla, applied leave from 08.03.1983 to 06.04.1983 along with medical certificate and sought for extension of leave from 07.04.1983 to 30.06.1983 with new medical certificates, and he was permitted to avail the leave up to 30.04.1983 and directed him to report duty on 01.05.1983, vide letter dated 12.04.1983. But the said letter was returned unserved and the respondent did not report to duty on 01.05.1983. Considering his continuous unauthorized absence from 01.05.19083, the Divisional Engineer, Telecom, Guntur issued charge memo under Rule-14 of the CCS (CCA) Rules, 1965 on 24.09.1983. The said charge memo was also returned unserved as the respondent was not available at the leave address given and therefore, the Enquiry Officer and the Presenting Officer were appointed. The notices sent by the Enquiry Officer to the permanent as well as leave addresses, as furnished by the respondent, were returned unserved with an endorsement that “no such person is available”. Therefore, the notice issued against the respondent was served by affixture. 5. An enquiry was conducted against the respondent and the Enquiry Officer submitted his report on 12.07.1984, holding that the charges of unauthorized absence of the respondent were proved. The disciplinary authority by order dated 10.08.1984 dismissed the respondent from service. Aggrieved by the same, the respondent preferred an appeal and the appellate authority, by proceedings dated 01.06.1985 reduced the punishment of dismissal into compulsory retirement. Against the said order, the respondent filed I.D.138/1989 before the Labour Court, Hyderabad and the Labour Court did not entertain the said I.D. as not maintainable. Thereafter, the respondent filed O.A.1327/1994 before the Tribunal, questioning the punishment orders as well as the award of the Labour Court. At the first instance, the Tribunal returned the O.A. on the ground that it could not decide the validity of the award of the Labour Court. Against the said order, the respondent filed W.P.3998/1998, and this Court by order dated 20.11.2001, remanded the matter to the Tribunal directing to decide the case on merits. The Tribunal dismissed the O.A. by order dated 09.08.2002. Against which, the petitioner filed W.P.13762/2003 and this Court by order dated 14.10.2003 again remanded the matter to the Tribunal directing to decide the matter on merits including the question of competency of the Officer who imposed the punishment. Ultimately, the Tribunal by the impugned order dated 26.07.2004, as extracted above, allowed the O.A. setting aside the punishment on the ground that ex parte enquiry against the respondent is unsustainable. 6. The learned counsel for the petitioners submits that in spite of sending notices to the addresses as furnished by the respondent they could not be served and therefore, notices were served by affixture on the said addresses, and since the notices sent to the respondent were returned unserved with an endorsement that no such person is available, it cannot be said that the notices sent to the respondent were not served and therefore, the order of the Tribunal is illegal and unsustainable. 7. On the other hand, the respondent who appeared in person submits that he was initially recruited and appointed as a clerk in the DET Office, Guntur with effect from 20.10.1970 and he passed departmental competitive examinations for promotion as Junior Engineer in the Postal and Telegraph Department and after training, he was initially posted and appointed as Junior Engineer at the Carrier Station, Nellore with effect from 28.01.1979 under the jurisdiction of the Southern Telecom Region whose Headquarters is at Madras and thereafter, he was transferred to the jurisdiction of the former Divisional Engineer, Telecom, Guntur and posted as Junior Engineer Phones (Groups) at Bapatla. While discharging as Junior Engineer at Bapatla, he became sick and applied for 30 days leave from 08.03.1983 on health grounds and submitted leave application with medical certificate in support of his illness and the leave was sanctioned, but before expiry of the leave he extended the same for further period from 07.04.1983 to 30.06.1983 again on health grounds, but the leave up to 30.04.1983 was sanctioned by letter dated 12.04.1983, directing him to report on 01.05.1983. He submitted that the said letter was not at all communicated to him and it was returned unserved. He further stated that the said letter dated 12.04.1983 was not sent to the residential address at Bapatla, which is very much available in the office records. As the respondent did not report to duty on 01.05.1983, the Divisional Engineer, Telecom Department issued a charge memo on 24.09.1983, the copy of which was sent to the permanent address at Chirala and the leave address, but both were returned unserved on the ground that he was not available. He further submitted that he got sufficient medical and extraordinary leave to his credit, but without considering his leave application, a charge was framed and conducted ex parte enquiry and imposed severe punishment. It is stated that the charge memo was not at all received as admitted by the petitioners and the Enquiry Officer conducted an ex parte enquiry proceedings. It is stated that the enquiry conducted is not fair and proper and mere sending notices is not sufficient and the petitioner ought to have actually served with the charge memo and the notices. Therefore, the Tribunal rightly allowed the O.A. on the ground of violation of the principles of the natural justice. 8. We have perused the order of the Tribunal under challenge. The charge was framed against the respondent for his unauthorized absence from duty from 01.05.1983. But it is the case of the respondent that admittedly extension of the leave up to 30.06.1983 was applied, but the so called letter dated 12.04.1983 asking him to report duty on 01.05.1983 was not communicated and the same was returned unserved. It is stated that the respondent was suffering from ill-health and he applied for leave from time to time on health grounds and he recovered from illness by August 1984 and reported to the SDOT, Tenali over the telephone from Bapatla on 15.08.1984 requesting him to give posting as he found another Junior Engineer posted in his place. But the SDOT, Tenali told him that there are no vacancies in the said sub-division and directed him to approach the DET, Guntur. The respondent could not meet the DET as he was not available at Tenali and Guntur on 16.08.1984. In the last week of August, 1984, the DET was available and he met him and requested to give necessary instructions for posting, but the Director told him to meet SDOT, Tenali. When the respondent met SDOT, Tenali on 27.08.1984, he was served with the order of dismissal dated 10.08.1984. Admittedly the charge memo dated 24.09.1983 or any notice issued fixing the dates of the enquiry were not served on the respondent and without serving the notice the enquiry was finally closed on 21.04.1984. Admittedly even the enquiry report was not served and no show cause notice was also served before passing the dismissal order dated 10.08.1984. 9. It is pertinent to note that before proceeding on leave, respondent was working as Junior Engineer at Bapatla and his residential address is available in the telecom directory and in spite of the knowledge of the said fact, all the communications were not to the said address at Bapatla. The authorities have not taken any care to publish the notices in widely circulated newspapers and all the notices sent by the petitioners were returned unserved and therefore, the ex parte enquiry was conducted without affording any opportunity to the respondent to participate in the enquiry. It is the specific case of the respondent that the dismissal authority never sent the notices/letters to the residential address of the respondent at Bapatla and the department is aware of the said address and the telephone given to the respondent for his residence was also functioning during the said leave period. 10. The Tribunal having perused the entire records and the correspondence, recorded a finding that either the disciplinary authority or the enquiring authority have taken any steps to get the charge sheet and the enquiry notices personally served on the respondent and they have not even taken any care to see that the notices to be published in widely circulated daily newspapers. It is admitted fact that the copy of the enquiry report has not been served on the respondent and the respondent had not given any opportunity to submit his representation to the said enquiry report. The final orders have been passed without serving any show cause notice. In so far as the other contentions of the respondent that the appointing authority has not imposed the punishment of dismissal and the authority who passed the order of dismissal is not the appointing authority, the Tribunal gave a finding that the respondent failed to produce the order of the appointment to prove that the authority who passed the punishment orders is not the appointing authority. However, the Tribunal allowed the said O.A. only on the ground that principles of natural justice have been violated in the manner of conducting enquiry and passing of the dismissal order. 11. The learned counsel for the petitioners submits that the notices sent to the addresses mentioned in the leave application and other addresses were returned unserved and therefore, service of notices is sufficient. He relied upon a decision of the Apex Court in the case of State of Rajasthan vs. Mohd.Ayub Naz[1] in support of his version. In the said case, the willful period of absence was about three years, which was not disputed, and therefore, the employee therein was charge sheeted and the enquiry was held and the employee therein attended the enquiry and after conducting the enquiry by giving reasonable opportunity, his services were terminated. In the instant case, the respondent has not participated in the enquiry and no opportunity of being heard was given to him. We are of the opinion that the principle laid down in the said judgment has no application to the facts of the case. 12. On the other hand, the respondent submits that as per the judgment of the Supreme Court in the case of Union of India vs. Dinanath Shantaram Karekar[2] where the disciplinary proceedings are intended to be initiated by issuing the charge sheet, its actual service is essential as the person to whom the charge sheet is issued is required to submit his reply, and thereafter, to participate in the disciplinary proceedings. So also, when the show cause notice is issued, the employee is called upon to submit his reply to the action proposed to be taken against him. Since in both situations, the employee is to be given an opportunity to submit his reply, the theory of communication cannot be invoked and actual service must be proved and established. It has already been found that neither charge sheet nor the show cause notice were ever served upon the employee, the entire proceedings were vitiated. In the said case also the order of removal was challenged on the ground that neither the charge sheet nor the show cause notice were ever served on the employee and therefore, the entire proceedings are vitiated. It is stated that a document sent by registered post can be treated to have been served only when it is established that it is tendered to the addressee. Where the addressee is not available even to the postal authorities, and the registered cover was returned to the sender with endorsement “not found”, it cannot be legally treated to have been served. Accordingly, the Apex Court held that the department should have made further efforts to serve the charge sheet on the employee and therefore, the departmental ex parte proceedings are bad and unsustainable. It is further stated that if the show cause notice is not served, necessary publication in the newspapers shall be made. In the instant case also no publication about the issuance of the notice was made and therefore, we are of the opinion that neither the charge sheet nor the show cause notice or any of the notices and disciplinary proceedings were ever served on the petitioner. 13. With regard to service of notices, orders etc. it should be seen that under Rule-30 of Central Civil Services (Classification, Control and Appeal) Rules, every order, notice and other process made or issued under the said Rules shall be served in person on the Government servant concerned or communicated to him by registered post. In the instant case, though the notices, show cause notices etc. are said to have been sent by registered post, admittedly the said registered post has not been received and the same has not been served on the respondent. It is not the case of the department that the respondent refused to receive the notices or avoided the same so as to presume that service of notice by affixture is sufficient. Therefore, it cannot be said that the notices are served or communicated on the respondent. In the circumstances mere sending the notice by registered post cannot be said to be sufficient when it was not served or communicated to him. 14. In view of the aforesaid facts and circumstances, we are of the opinion that the Tribunal has rightly allowed the O.A. and we do not see any infirmity legal or otherwise to interfere with the said impugned order. 15. The Writ Petition is accordingly dismissed. No order as to costs. ____________________ V.ESWARAIAH,J ________________________ P.SWAROOP REDDY,J Dated: ……..06.2009 Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 2. 2CCs to 2. 2CD copies [1] (2006) 1 Supreme Court Cases 589 [2] AIR 1998 Supreme Court 2722