UNION OF INDIA AND ORS.versusDINANATH SHANTARAM KAREKAR AND ORS.

                 UNION OF INDIA AND ORS.                                         A
                            v.
          DINANATH SHANTARAM KAREKAR AND ORS.

                             JULY 30, 1998

          [S. SAGHIR AHMAD AND G.B. PATTANAIK, JJ.]                              B

     Service Law :

      Departmental Enquiry-Procedure-Charge-sheet and show-cause
notice-Service of-By registered post and pub!ication in a newspaper- C
Sufficiency of-Charge-sheet sent by registered post received back with postal
endorsement "not found"-Show-cause notice published in newspaper-
Held : A single effort, in this case, is not sufficient-Further efforts to serve
the charge-sheet should have been made-Newspaper not shown to be popular
or having wide circulation-Hence, disciplinary proceedings vitiated for D
want of service of charge-sheet and showe-casue notice-Further, service of
charge-sheet is different from communication of termination order.

       Termination of service-Communication of-Order passed but kept in
file-Held : Neither there is termination of service nor communication of
order.                                                                           E
      The original respondent (since deceased) was removed from service
after regular departmental enquiry. The charge-sheet was issued to him by
registered post but was returned with the postal endorsement "not found". A
show-cause notice was published in the local newspaper. The Central
Administrative Tribunal found the service of the charge sheet and the show-      F
cause notice on the respondent as insufficient and, therefore, set aside the
order by which the respondent was removed from service. Hence this appeal.

     Dismissing the appeal, this Court

      HELD : 1.1. The postal endorsement "not found" indicates that the          G
charge sheet was not tendered to him even by the postal authorities. A
document sent by registered post can be treated to have been served only
when it is established that it was tendered to the addressee. Where the
addressee was not available even to the postal authorities, and the registered
cover was returned to the sender with the endorsement "not found", it cannot     H
                                    933
    934                     SUPREME COURT REPORTS                     [1998) 3 S.C.R.

A   be legally treated to have been served. The appellant should have made
    further efforts to serve the charge sheet on the respondent. Single effort, in
    the circumstances of the case, cannot be treated as sufficient. That being so,
    the very initiation of the departmental proceedings was bad. It was ex-pa rte
    even from the stage of charge sheet which, at no stage, was served upon the
B   respondent. 1936-A-C]

           1.2. Show-cause notice also cannot be treated to have been served.
    Service of this notice was sought to be effected on the respondent by publication
    in a newspaper without making any earlier effort to serve him personally by
    tendering the show-cause notice either through the office peon or by registered
C   post There is nothing on record to indicate that the newspaper in which the
    show-cause notice was published was a popular newspaper, which was expected
    to be read by the public in general, or that it had wide circulation in the area
    or locality where the respondent lived. The show-cause notice cannot, therefore,
    in these circumstances, be held to have been served on the respondent. In any
D   case, since the very initiation of the disciplinary proceeding was bad for the
    reason that the charge sheet was not served. All subsequent steps and stages,
    including the issuance of the show-cause notice would be bad. [93(i-D-E)

          1.3. Where the services are terminated, the status of the delinquent,
    as a Government servant, comes to an end and nothing further remains to be
E   done in the matter. But if the order is passed and merely kept in the file,
    it would not be treated to be an order terminating the services nor shall the
    said order be deemed to have been communicated. [937-FI

          State of Punjab v. Balbir Singh, AIR (1977) SC 629, held inapplicable.

F         State of Punjab v. Khemi Ram, AIR (1970) SC 214; Bachhittar Singh
    v. State of Punab, (1962) Supp. 3 SCR 713; State of Punjab v. Amar Singh            r
    Harika, AIR (1966) SC 1313 and S. Pratap Singh v. State of Punjab, 11964)
    4 SCR 733, referred to.

          2. Where the disciplinary proceedings are intended to be initiated by
G issuing a 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 the situations, the employee
H   is given an opportunity to submit his reply, the theory of "Communication"
                U.0.1. v. D.S. KAREKAR [S. SAGHIR AHMED, J.)                 935
    cannot be invoked and "Actual Service " must be proved and established.          A
    Neither the charge sheet nor the show-cause notice was ever served upon the
    original respondent. Consequently, the entire proceedings were vitiated.
                                                              [937-G-H; 938-A)
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1477 of
    1993.                                                                            B
         From the Judgment and Order dated 8.10.91 of the Central Administrative
    Tribunal, Bombay in O.A. No. 160of1998.

         Ms. Indira Sawhney, Ms. Anubha Jain and Ms. Sushma Suri for the
    Appellants.                                                                      C
          The Judgment of the Court was delivered by

          S. SAGIR AHMED, J. The original respondent, Dinanath Shantaram
    Karekar, who died during the pendency of the proceedings before the Central
    Administrative Tribunal, Bombay and has since been replaced by the present       D
    respondents, was appointed as unskilled labour in the Naval Armament Depot,
    Bombay. He was subsequently promoted to the post of Gun Repair Labourer,
    Grade-I. On 25th October, I 973, he was declared quasi-permanent on that post
    with effect from l.8.1966. He was, however, removed from service by Order
    dated 19th August, 1985 after regular departmental enquiry. This order was
    upheld in the Departmental appeal. The order ofremoval as also the appellate     E
    order were challenged by him before the Tribunal on the grounds, inter alia,
    that neither the charge sheet nor the show-cause notice were ever served
    upon him and, therefore, the entire proceedings are vitiated. The Tribunal has
    found that the charge sheet which was issued to him by registered post was
    returned with the postal endorsement "not found", while the show-cause           F
    notice was published straightaway in Dainiki Sagar, Navshakti. The Tribunal
    found the service of the charge-sheet and the show cause notice on the
    respondent as insufficient and therefore, set aside the Order dated 19th
    August, 1985, by which he was removed from service.

          Learned counsel for Union of India has strenuously urged that since        G
    the respondent had beep absenting himself from the office una:ithorisedly,
    the service of charge sheet sent to him through registered post should be
+   treated as sufficient. This contention cannot be accepted.

          Respondent was an employee of the appellant. His personal file and the
    entire service record was available in which his home address also had been      H
    936                      SUPREME COURT REPORTS                    [1998] 3 S.C.R.

A   mentioned. The charge sheet which was sent to the respondent was returned
    with the postal endorsement "not found". This indicates that the charge sheet
    was not tendered to him even by the postal authorities. A document sent by
    registered post can be treated to have been served only when it is established
    that it was tendered to the addressee. Where the addressee was not available
B   even to the postal authorities, and the registered cover was returned to the
    sender with the endorsement "not found", it cannot be legally treated to have
    been served. The appellant should have made further efforts to serve the
    charge sheet on the respondent. Single effort, in the circumstances of the
    case, cannot be treated as sufficient. That being so, the very initiation of the
    departmental proceedings was bad. It was ex-parte even from the stage of
C   charge sheet which, at no stage, was served upon the respondent.

          So far as the service of show cause notice is concerned, it also cannot
    be treated to have been served. Service of this notice was sought to be
    effeected on the respondent by publication in a newspaper without making
    any earlier effort to serve him personally by tendering the show cause notice
D   either through the office peon or by registered post. There is nothing on
    record to indicate that the newspaper in which the show-cause notice was
    published was a popular newspaper which was expected to be read by the
    public in general or that it had wide circulation in the area or locality where
    the respondent lived. The show-came notice cannot, therefore, in these
E   circumstances, be held to have been served on the respondent. In any case,
    since the very initia~ion of the disciplinary proceedings was bad for the
    reason that the charge sheet was not served, all subsequent steps and stages,
    including the issuance of the show-cause notice would be bad.

          Lastly, in order to save the lost battle, a novel argument was raised by
F   the learned counsel for the appellant. He contended that since the charge-
    sheet as also the show-cause notice, at different stages of the disciplinary
    proceedings, were despatched and had been sent out of the office so that no
    control to recall it was retained by the department, the same should be
    treated to have been served on the respondent. It is contended that it is the
G   communication of the charge-sheet and the show-cause notice which is
    material and not its actual service upon the delinquent. For this proposition,
    reliance had been placed on the decision of this Court in State of Punjab
    and others v. Balbir Singh etc., AIR (1977) SC 629.

          This decision has been misread, misunderstood and is now being
H misapplied by the counsel for the appellants in the instant case.
             U.0.1. v. D.S. KAREKAR [S. SAGHIR AHMED, J.)                   937

      As would appear from the persual of that decision, the law with regard        A
to ""Communication" and not Actual Service" was laid down in the context
of the order by which services were terminated. It was based on a consideration
of the earlier decisions in State of Punjab v. Khemi Ram, AIR ( 1970) SC 214;
Bachhittar Singh v. State ofPunjab, [1962] Supp. 3 SCR 713 =AIR (1963) SC
395; State ofPunjab v. Amar Singh Harika, AIR (1966) SC 1313 and S. Pratap          B
Singh v. State ofPunjab, [1964] 4 SCR 733 =AIR (1964) SC 72. The following
passage was quoted from S. Pratap Singh 's Judgment (supra) :-

            "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                C
        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       D
        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."

      It was in this background that in cases where services are terminated
or a person is dismissed from service, communication of the order and not           E
its actual service was held to be sufficient. But this principle cannot be
invoked in the instant case.

      Where the services are terminated, the status of the delinquent, as a
Government servant, comes to an end and nothing further remains to be done
in the matter. But if the order is passed and merely kept in the file, it would     F
not be treated to be an order terminating services nor shall the said order be
deemed to have been communicated.

       Where the disciplinary proceedings are intended to be initiated by
issuing a charge-sheet, its actual service is essential as the person to whom       G
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 the situations, the employee
is given an opportunity to submit his reply, the theory of "Communication"
cannot be invoked and "Actual Service" must be proved and established. It           H
    938                   SUPREME COURT REPORTS                 [1998) 3 S.C.R.

A has already been found that neither the charge-sheet nor the show-cause
    notice were ever served upon the original respondent, Dinanath Shantaram
    Karekar. Consequently, the entire proceedings were vitiated.

          For the reasons stated above, we do not find any reason to interfere
    with the findings recorded by the Tribunal. The appeal has no merit and is
B   dismissed with no order as to costs.

    v.s.s.                                                  Appeal dismissed.
                                                                                  ..