IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09. 1.2009 C O R A M : THE HONOURABLE MR.JUSTICE P.K.MISRA and THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.24901 of 2008 S.T.Meimozhi ... Petitioner vs. 1. Union of India, rep.by the Secretary (Defence Production), Department of Defence Production, South Block, New Delhi-110 011. 2. The Chairman and Director General of Ordnance Factories (DGOF), Ordnance Factory Board, 10-A, S.K.Bose Road (OFB), Kolkatta-700 001. 3. The Principal Director, Ordnance Factories Institute of Learning (OFIL), HVF Estate, Avadi, Chennai-600 054. 4. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-104. ... Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records relating to the fourth respondent's order made in O.A.No.775 of 2007 dated 20.6.2008 and the order made R.A.No.25 of 2008 dated 21.8.2008 and to quash the same and consequently direct the respondents to accept the voluntary retirement from services of the petitioner w.e.f. 01.9.2007 and to consequently extend all benefits both service and retiral benefits forthwith including admissible interest thereon. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.L.Chandrakumar For Respondents : Mr.B.Shanthakumar, SCCG ***** O R D E R K. CHANDRU, J. The petitioner aggrieved by the order of the Central Administrative Tribunal, Madras Bench made in O.A.No.775 of 2007 dated 20.6.2008 as well as Review Application No.25 of 2008 dated 21.8.2008 in upholding the order passed by the second respondent dated 31.8.2007 rejecting his application for voluntary retirement from service, has filed the present writ petition. 2. This matter came up for admission on 16.10.2008 and the Senior Central Government Standing Counsel Mr.B.Santhakumar took notice. Subsequently, it was adjourned to several dates. When it came up on 04.12.2008, the learned Standing Counsel for the respondents agreed that the disciplinary proceeding will be postponed till 22.12.2008 and a direction was given to produce the original file before this Court. The original file was also circulated for perusal by this Court. A detailed counter affidavit dated 22.10.2008 was filed on behalf of the respondents to which the petitioner filed a rejoinder dated 04.11.2008. An additional counter affidavit dated 18.11.2008 was filed to the rejoinder filed by the petitioner. 3. The petitioner was appointed as an Assistant Works Manager on 04.2.1987 and after several promotions, he finally was made as a Joint General Manager. The case of the applicant was that while he was working as a Joint General Manager, he was transferred to Ordnance Factory, Medak by an order dated 01.12.2004. The petitioner claimed that he was sick. Therefore, he intimated the Heavy Vehicles Factory (HVF) on 27.12.2004 and he also submitted the medical certificate. The Chief Medical Officer, HVF confirmed the genuineness of his sickness and suggested further treatment. During the treatment, it is claimed that one of his younger brothers had expired. Thereafter when he finally decided to go to Medak, the transferred place, he claimed TA and DA. Since the correspondence in this regard was going on, he started reporting at Avadi. The petitioner, in the meanwhile, submitted an application to go on voluntary retirement. His request for voluntary retirement was rejected by the Ministry of Defence by an order dated 31.8.2008. The said letter was sent by fax to the Director General of Ordnance Factory Board, Calcutta on 31.8.2007 and the decision of the https://hcservices.ecourts.gov.in/hcservices/ Ministry was also sent by a fax message on the same day to HVF, Avadi to be served on the applicant. A copy of the order was sent by speed post to the petitioner's address. It was also sought to be served by sending two senior officers, namely, two Joint General Managers and the petitioner. When those two officers went to the house of the petitioner, he was not available in the house and his family members refused to receive the said letter and it was affixed on his residence. But the case of the petitioner was that since his notice period had expired by 31.8.2007, he is deemed to have voluntarily retired with effect from 01.9.2007. The order rejecting the case of the petitioner though dated 31.8.2007, it was received by him only on 04.9.2007. Since there was no rejection before notice period, the subsequent rejection has no bearing on his voluntary retirement. It is with this background he filed an Original Application before the Central Administrative Tribunal being O.A.No.775 of 2007 challenging the order of the second respondent dated 31.8.2007 rejecting his application for voluntary retirement. 4. The Tribunal held that though a communication intended to be sent to the person concerned was made ready but was not communicated, it will not be effective unless received by the person concerned. The Tribunal held that the order of the Ministry of Defence rejecting the petitioner's request is dated 31.8.2008 and it was sent by fax message to both D.G (OFB), Calcutta and also to HVF, Avadi, where the petitioner was working. Thereafter it was attempted to be served on him both by post and personally. The despatch book of sending the communication was also dated 31.8.2007. Though the petitioner had claimed that he received it on 04.9.2007 and therefore he is deemed to have retired on 01.9.2007 was not acceptable. The Tribunal rejected his arguments. 5. Once again the petitioner raised the same issue in the review application and the Tribunal rejected the Review Application No.25 of 2008 by a reasoned order dated 21.8.2008. The Pension Rules applicable to Central Government Servant, namely, Rule 48A deals with voluntary retirement notice. Rule 48-A(1) and (2) reads as follows:- 48-A. Retirement on completion of 20 years' qualifying service. (1) At any time after a Government servant has completed twenty years' qualifying service, he may, by giving notice of not less than three months in writing to the Appointing Authority, retire from service. Provided that this sub-rule shall not apply to a Government servant, including scientist or technical expert who is - i. on assignments under the Indian Technical and https://hcservices.ecourts.gov.in/hcservices/ Economic Co-operation (ITEC) Programme of the Ministry of External Affairs and other aid programmes. ii. Posted abroad in foreign based offices of the Ministries/Departments. iii.On a specific contract assignment to a foreign Government, unless, after having been transferred to India, he has resumed the charge of the post in India and served for a period of not less than one year. (2) The notice of voluntary retirement, given under sub-rule (1) shall require acceptance by the Appointing Authority: Provided that where the Appointing Authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period". 6. There are also Government Orders setting out instructions as to how the said notice can be dealt with by the authorities. It is only in case where the appointing authority refused to grant permission for retirement before the expiry of the period of specified in the notice, the retirement can become effective from the date of expiry of the said period. In the guidelines prescribed by the Government, it is clearly stated that a voluntary retirement request can be accepted except in cases where disciplinary proceedings are pending or contemplated against a government servant concerned for the imposition of a major penalty and certain other circumstances. In the present case, it is also further stated by the respondents in their counter in paragraph 39, which reads as follows:- ''39. With regard to para 4, I submit that the officer was transferred from HVF to OFPM and stood released from HVF with effect from 31.12.2004. But he did not join OFPM and continued to remain unauthorized absent ever since for more than 2 years. During this period the petitioner had been submitting medical certificates. The administration had decided to get the officer referred for second medical opinion and a special board was formed. The petitioner did not appear before the Board on 22.3.2007. A second date was again given on 11.4.2007, but the petitioner did not appear on the second date also. These circumstances make his alleged illness as suspect and the administration has every right to deny any leave to the petitioner on medical grounds. In fact to leave has been sanctioned to the petitioner for this period of unauthorized absence. Accordingly disciplinary action has been initiated against https://hcservices.ecourts.gov.in/hcservices/ the petitioner for unauthorized absence under Rule 14 of CCS (CCA) Rule vide memorandum dated 23.11.2007. The current transfer order is from OFPM to OFILAV. Hence, it is enjoined by this transfer order that the officer has to be released from OFPM to be able to join at OFILAV. Flouting all rules, regulations and directions inherent in OFB orders, the officer had joined at OFILAV and took over the charge of the Institute as Officer in Temporary Charge taking advantage of his seniority, which is absolutely irregular." 7. Though the petitioner has stated that such an initiation of disciplinary proceedings has taken place after his VRS request, we are not persuaded to accept the statement of the petitioner. In fact a perusal of the original file clearly shows that a draft charge memo was made ready and sent for approval to the Government of India and it is not as if the petitioner's service record is free for acceptance of the voluntary retirement request. In the communication dated 23.11.2007, the decision of the competent authority for issuance of the chargesheet was approved. The original file also shows that the petitioner's request for VRS was considered by the Ministry and it was signed by the competent authority on 31.8.2007. The same message was also sent to the OFB, Calcutta as well as to the HVF, Avadi. The statement of the two officers, who went to the house of the petitioner, dated 31.8.2007 and which could not be served on the family members in the absence of the petitioner and affixed on the gate is also found in the file. A photo copy of the Tapal Register also shows that the communication was sent by speed post to the petitioner's address. Therefore, this is not a case where the petitioner can take advantage of his own indifference and claim that the rejection of his voluntary retirement request was received by him on 04.9.2000. It is unnecessary to go into the other issue whether the petitioner was qualified to go on VRS and whether he had completed 20 years of service. In the event of his absence not being regulated by the authorities in rejecting the writ petition filed by the petitioner, this Court is convinced that the refusal to receive the communication was the petitioner's own fault and it does not help the case of the petitioner. In the review application, the Tribunal also recorded a finding about the petitioner's admission regarding the fax message being received by HVF, Avadi on the same day. The proviso to Rule 48A(2) as extracted above clearly shows that only in case where the appointing authority does not refuse to grant permission for retirement before the expiry of the period specified in the notice, the retirement shall become effective from the date of expiry of the said period. In the present case, the competent authority, namely, the Government of India has clearly refused to accept the petitioner's request. 8. The Supreme Court in the decision reported in (1969) 3 SCC https://hcservices.ecourts.gov.in/hcservices/ 28 (State of Punjab -vs- Kemi Ram) held in paragraph 17 as follows:- Para 17. 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 9. The Tribunal correctly relied upon the decision of the Supreme Court with reference to the effect of communication of an order passed by the authorities. In the light of the same, there is no case made out to interfere with the order passed by the Tribunal. Accordingly, the writ petition stands dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar js To 1. The Secretary (Defence Production), Department of Defence Production, South Block, New Delhi-110 011. 2. The Chairman and Director General of Ordnance Factories (DGOF), Ordnance Factory Board, 10-A, S.K.Bose Road (OFB), Kolkatta-700 001. 3. The Principal Director, Ordnance Factories Institute of Learning (OFIL), HVF Estate, Avadi, Chennai-600 054. https://hcservices.ecourts.gov.in/hcservices/ 4. The Registrar, Central Administrative Tribunal, Madras Bench, Chennai-104. +1cc to Mr.B.Shanthakumar, SCCG, SR 1187 PA(CO) km/13.3. W.P.No.24901 of 2008 https://hcservices.ecourts.gov.in/hcservices/