9911796707
TMI Blog2008 (5) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... venue Service, was posted as Commissioner (Appeals) Central Excise, Bhopal in May 2005. He filed an application dated 10th May, 2005 seeking voluntary retirement w.e.f. 1st September, 2005, on having completed 30 years of qualifying service. On 30th June, 2005 the respondent was relieved from Bhopal and posted as Commissioner (Appeals) at Hyderabad. He accordingly handed over charge at Bhopal on 20th June, 2005 but as the officer holding the post at Hyderabad had not been likewise relieved, the respondent's transfer order was stayed and a request was made by him seeking a suitable posting pursuant to his request for voluntary retirement. Vide communication dated 25th August, 2005 sent to the respondent at his residential address H. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the suspension order had been issued to the respondent's residential address in NOIDA, ( a fact which was in the knowledge of the Department) and had been received by him on 9th September, 2005. It has accordingly been submitted that the date of communication of the order being 2nd September, 2005, the respondent could not have been suspended thereunder as his three months' notice seeking voluntary retirement had expired on 31st August, 2005 and he was thus deemed to have retired w.e.f. 1st September, 2005. It has accordingly been submitted that the order dated 30th August, 2005 was, therefore, ineffective in law. 3. The Union of India in its reply has opposed the pleas raised by the respondent and has submitted that as the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted the requisite period of service qualifying him for voluntary retirement and also fulfilled all the other conditions as well and the only impediment to his retirement was relatable to his suspension by the order dated 30th August, 2005 in terms of the 2nd proviso to Rule 48(1)(b) which postulated that permission to seek voluntary retirement could be withheld by the appointing authority in case the Government Servant was under suspension. The Tribunal then applied the law to the facts of the case and observed that the order dated 30th August, 2005 had been dispatched to Nagpur for further transmission to the respondent at Hyderabad though he was admittedly at NOIDA at the relevant time, - a fact well within the knowledge of the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment of the Tribunal and the High Court and has contended that in view of the settled law, if the orders were to be made effective from the date of issue it was essential that they be issued to the correct address of the officer which was at NOIDA and as the said orders had been dispatched to Nagpur instead and served on him on 9th September, 2005 it could not be said that the respondent continued to be in service as his prayer for voluntary retirement had been rejected. 8. We have heard the learned counsel for the parties and have gone through the record. 9. The Tribunal has relied on several judgments of this Court to support the view an order to be made effective it has to be communicated to the officer at his correct address. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary 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 it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Hyderabad and on going there he had been informed that the incumbent officer at that place had not been relieved on which he had returned to Bhopal and had reported for duty at the Board's Office in New Delhi on 20th June, 2005 and further requested that further orders as to his posting be issued, it is evident that the department had knowledge as to his whereabouts. The learned counsel for the respondent has also referred to the letter dated 25th August, 2005 from the Under Secretary to the Government of India, Ministry of Finance addressed to the respondent at his residence in NOIDA directing him to clear his outstandings before his request for voluntary retirement could be finalized. It is also significant from the record that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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