1 wp1328.

2003

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1328 OF 2003

1. Union of India, through the

Secretary, Ministry of Defence,
New Delhi – 110 001.

2. Vice Admiral, Chief of Personnel,

Naval Head Quarters,
New Delhi.

3. Flag Officer, Commanding in Chief,

Western Naval Command,
SBS Road, Mumbai – 400 001.

4. Chief Staff Officer (P&A),

Western Naval Command,
Head Quarters, Shahid Bhagat
Singh Road, Mumbai-400001. ... Petitioners

- Versus -

C.J. Solanki, residing of

c/o Pravesh Zever Waghela,
Maharashtra Government Colony,
Building No.3, Room No.427,
Kherwadi, Bandra (East), Mumbai. ... Respondent

-----------------
Mr. M.S. Bharadwaj, Advocate i/b. Mr. Suresh Kumar,
Advocate for the petitioners.

Mr. Rajeev Kumar, Advocate with Mr. Krushna Thombare,

Advocate for the respondent.

----------------
 2 wp1328.2003

CORAM : DIPANKAR DATTA, C.J. AND

M.S. KARNIK, J.

RESERVED ON : MARCH 8, 2022

PRONOUNCED ON : APRIL 21, 2022

JUDGMENT (Per Dipankar Datta, C.J.) :

1. The respondents in Original Application No.502/1998,

on the file of the Central Administrative Tribunal, Mumbai
Bench, Mumbai (hereafter “the Tribunal”, for short) are the
petitioners in this writ petition presented before this Court
on 15th March 2002. Challenge herein is to the legality and
validity of the judgment and order dated 18 th December
2002 whereby the original application under Section 19 of
the Administrative Tribunals Act, 1985 instituted by the
original applicant (hereafter “the respondent”) was allowed
by passing the following order:

“17. In the result, O.A. succeeds, the order of the

Revisional Authority, Appellate Authority and
Disciplinary Authority dated 12.3.1997, 20.12.1996
and 26.8.1992 (Exhibit – C, B & A respectively) are
quashed and set aside with all consequential
benefits. However, the respondents are at liberty to
continue with the enquiry after service of the charge
sheet on the applicant on the address supplied by
the applicant within 15 days from the date of receipt
of copy of order (either by the Applicant in person or
by his Counsel). If a decision is taken to continue
with the enquiry, it be communicated to the
applicant in writing within one month from the date
of receipt of copy of order and thereafter enquiry at
the stage of Disciplinary Authority be concluded
within a period of four months. No order as to
costs.”
 3 wp1328.2003

2. The pleaded case of the petitioners reveals that the

respondent, who was initially appointed as a safaiwala and
thereafter selected as peon and posted in the Naval
Dockyard, remained absent from 21st May 1990 to
4th May 1991 resulting in issuance of a charge-sheet
dated 4th May 1991 under Rule 14 of the Central Civil
Services (Classification, Control and Appeal) Rules, 1965
(hereafter “the Rules”, for short) for unauthorised absence.
The respondent was required to submit his written
statement of defence within ten days of receipt of the
charge-sheet. According to the petitioners, the
charge-sheet was despatched by registered post on 4th May
1991 itself to the address of the respondent. The envelope
containing the charge-sheet was, however, returned with
the postal remark “not claimed”. Since no written
statement of defence was received from the respondent,
his Disciplinary Authority by an order dated 16th
September 1991 considered it proper to appoint an Inquiry
Officer to inquire into the charge framed against the
respondent. Intimation of such appointment was also
despatched on 16th September 1991 itself by registered
post to the respondent. The relevant envelope too was
returned with the postal remark “not claimed”. Intimation
regarding dates of inquiry were also sent to the respondent
by registered post on 9th October 1991 and 11th November
1991, which the respondent acknowledged. In the inquiry
that followed, the respondent did not appear. Consequently,
the inquiry was conducted ex parte. The Inquiry Officer
 4 wp1328.2003

submitted his report dated 7th March 1992 holding that the
charge of unauthorized absence against the respondent
stood proved. Copy of the inquiry report was despatched
to the respondent, but the envelope was returned with the
postal remark “left”. Ultimately, the Disciplinary Authority
by an order dated 26th August 1992 accepted the report of
the Inquiry Officer and imposed the penalty of compulsory
retirement on the respondent with full terminal benefits as
admissible to his qualifying service. Such order was also
despatched by registered post, but the envelope returned
with the remark “not claimed”. There was also a publication
of the order of compulsory retirement in the newspaper
named “Sandesh” on 30th March 1993. From 21st May 1990
till 30th August 1996, the whereabouts of the respondent
were unknown as he did not engage in any communication
with the relevant department. On 14th November 1996, the
respondent carried the order of compulsory retirement in
an appeal before the Appellate Authority, who rejected the
appeal as time barred by an order dated 22nd August 1997.
3. What has not been stated in the writ petition is that
the respondent had filed a revision petition on 10 th April
1997, which was rejected on 2nd August 1997. The order of
the Revisional Authority dated 2nd August 1997 is, however,
a part of the writ petition at pages 44 to 47 thereof. The
relevant part of the Revisional Authority’s order reads as
follows:
“AND WHEREAS after going through the entire
relevant records, the undersigned considers that the
contention made by Shri C.J. Solanki cannot be
accepted for the following reasons :-
 5 wp1328.2003

(a) Major charge-sheet was issued for his

unauthorised absence from 21 May 90 to 04 May 91
only and the same was forwarded at his known
addresses by registered post which was returned
undelivered by the Postal Authorities with remarks
‘Not claimed’ besides subsequent communication
received back with the same remarks.

(b) The facts and circumstances of the case as

have been explained by the individual in his petition
are not much convincing with respect to disprove his
guilt and warrant no let up.

NOW THEREFORE, after taking into

consideration the above mentioned factors, the
undersigned upholds the penalty imposed on him
and rejects his Revision Petition dated 10 Apr. 97
submitted under rule 29 of CCS (CC&A) Rules, 1965
against the penalty.”

4. On 6th May 1998, the respondent approached the

Tribunal by filing the original application challenging the
aforesaid orders, which has been allowed as noted above.
5. The original application before the Tribunal succeeded
on a short point. The Tribunal was of the view that no
presumption could be drawn against the respondent that
he refused to accept the charge-sheet merely because the
envelope containing the charge-sheet was returned with
the postal remark “not claimed”. However, it is evident from
paragraph 9 of the judgment and order of the Tribunal that
a letter of intimation about the date and time of the inquiry
proposed to be held against the respondent was duly
served on him on 15th October 1991. It is in this context
that paragraph 13 of the judgment of the Tribunal assumes
importance. Paragraph 13 is quoted below:
 6 wp1328.2003

“13. The knowledge of the date of hearing about

disciplinary case, when in fact charge sheet was not
served, cannot be a substitute for the service of the
charge sheet. As such we are of the considered opinion
that even if it is held that the applicant was aware of the
fact that the disciplinary proceeding is going on and the
date of hearing is fixed therein, absence of the service of
the charge sheet does not entitle the respondents to
proceed with the disciplinary case.”

6. Referring to Rule 27(2)(a) of the Rules, the Tribunal

was of the further view that the same clearly cast a duty
on the Appellate Authority to examine whether the
procedure laid down in the Rules had been complied with
or not and whether any non-compliance has resulted in
violation of any of the provisions of the Constitution of
India or in the failure of justice. Upon noticing that the
Appellate Authority had not adverted to such provision, the
Tribunal observed that without service of the charge-sheet
containing the imputations of misconduct, and the
documents and evidence likely to be adduced in the
inquiry, the same could not have been substituted by only
notice of date of inquiry. Service of charge-sheet being the
duty of the employer and the delinquent employee having
a right to receive it, it was also held that failure on his part
to agitate the same in appeal or revision would not
disentitle him to raise such plea in the Courts of judicial
review proceedings. Based on such findings, it was
concluded that the disciplinary proceedings initiated
against the respondent stood vitiated. The Tribunal,
therefore, quashed the impugned orders and granted
liberty to the petitioners to proceed in accordance with law.
 7 wp1328.2003

7. Appearing on behalf of the petitioners, Mr.

Bharadwaj, learned counsel contended that the Tribunal
completely misdirected itself in granting relief to the
respondent. According to him, there being evidence on
record to show that the respondent had been informed of
the dates of inquiry, it was at least brought to his notice
and knowledge that an inquiry had been initiated against
him. On the date the intimation reached him, the
respondent was unauthorizedly absenting himself. If the
respondent had not received the charge-sheet, yet, had
genuine reasons for not reporting for duty, he could have
approached the Disciplinary Authority with a prayer to
make available the charge-sheet. No such attempt was
made by the respondent. It is, therefore, crystal clear
that the respondent did not wish to participate in
the inquiry and by his conduct, evinced an intention
not to be interested thereby allowing the inquiry to
proceed ex parte. In such circumstances, it was wholly
inappropriate on the part of the Tribunal to find fault in the
disciplinary action taken by the petitioners. He, thus,
prayed for setting aside of the impugned judgment and
order as well as for dismissal of the original application.
8. The writ petition has been contested by the
respondent. Mr. Kumar, learned counsel representing the
respondent, submitted that the Tribunal did not commit
any error in arriving at a finding that the relevant
authorities had failed to discharge their duties as
mandated by the Rules. According to him, the Inquiry
Officer could not have been appointed without extending
 8 wp1328.2003

opportunity to the respondent to peruse the charge-sheet

and understand the charge levelled against him by the
Disciplinary Authority as well as without granting
opportunity to raise defence by submission of his written
statement. That apart, he contended that the postal
authorities not having returned the envelope containing
the charge-sheet with the remark “refused”, no
presumption could have been drawn that the respondent
had been served with the charge-sheet. The Tribunal, in
his opinion, was therefore absolutely right in placing
reliance on the decision of the Supreme Court in Union of
India and others vs. Dinanath Shantaram Karekar1
(erroneously mentioned in the judgment as 1991 SC SLJ
245).
9. Mr. Kumar further contended that the respondent was
forced by compelling circumstances to remain absent from
duty. He was suffering from serious psychiatric depression
and undergoing medical treatment. The period from 1991
onwards was too traumatic for the respondent. He lost his
mother and wife. His brother also went missing. Having
been declared unfit by a psychiatrist, the respondent was
not able to comprehend the reality perceptions. Being
totally mentally incapacitated, he was not aware what was
happening around him during those years. In 1996, he was
finally cured after constant medical treatment whereafter
he learnt of the order of compulsory retirement and
proceeded to challenge it in an appeal under Rule 24 read

1 (1998) 7 SCC 569

 9 wp1328.2003

with Rule 26 of the Rules but unfortunately, such appeal

stood dismissed as time-barred.
10. Referring to the decision of the Supreme Court in
Krushnakant B. Parmar vs. Union of India and
another2, it was contended by Mr. Kumar that it should be
the endeavour of every Court/Tribunal to ascertain whether
absence from duty is deliberate or due to compelling
circumstances beyond the control of the delinquent
employee. He contended that had the petitioners complied
with the order of the Tribunal impugned in this writ petition
and conducted an inquiry upon granting reasonable
opportunity to the respondent, he would have satisfied the
petitioners that compelling circumstances disabled him
from resuming duty. While the Appellate Authority did not
accept the appeal of the respondent on the ground that it
was time-barred, the Revisional Authority ignored the
compelling circumstances, which were brought to his
knowledge by the respondent, though fleeting references
could be found in the order dated 2nd August 1997.
11. Mr. Kumar also relied on the decision of the Supreme
Court in Dulu Devi vs. State of Assam and others 3 and
a decision of the Gauhati High Court dated 22 nd August
2013 in Shri Agni Bahadur Chetri vs. Union of India
and others4 in support of his contentions that the
respondent was illegally punished.
12. Resting on the aforesaid submissions, Mr. Kumar
contended that the writ petition ought to be dismissed with

2 (2012) 3 SCC 178

3 AIR 2016 SC 2152
4 Writ Petition (C) No. 6155/2006
 10 wp1328.2003

exemplary costs and since the respondent had reached the

age of superannuation in 2014, the petitioners should be
directed to release in his favour all service benefits as well
as retirement benefits as if he was on duty for all times
from 2002 till 2014.
13. We have heard learned counsel for the parties and
perused the materials on record.
14. While reserving the judgment on 8th March 2022, we
had called upon the Registrar of the Tribunal to transmit to
this Court the records of Original Application No.502/1998.
The Registrar while complying with such order has
informed this Court that since the original application was
disposed of on 18th December 2002, only order-sheets and
order/judgment copy in the original application have been
preserved and not the original application itself. In such
view of the matter, we are left with no other option but to
proceed on the basis of the documents annexed to the writ
petition.
15. It appears from the records that this Court issued
Rule on 9th October 2003. While granting order in terms of
prayer clause (b) of the writ petition, which sought for stay
of operation of the impugned judgment and order, a
coordinate Bench of this Court directed the petitioners to
release and pay “pensionary benefits to the respondent in
accordance with law.”
16. Although the writ petition has been pending for nearly
two decades on the file of this Court, we have not found
any return to the Rule on behalf of the respondent.
However, since the original application instituted before the
 11 wp1328.2003

Tribunal by the respondent is available on record without

its annexures, we have duly considered the same.
17. The procedure for imposing major penalties is
embodied in rule 14 of the Rules. Rule 14, to the extent
relevant, provides as follows:
“14. Procedure for imposing major penalties
…
(4)(a) The Disciplinary Authority shall deliver or cause
to be delivered to the Government servant a copy of the
articles of charge, the statement of the imputations of
misconduct or misbehaviour and a list of documents and
witnesses by which each article or charges is proposed to
be sustained.

(b) On receipt of the articles of charge, the Government

servant shall be required to submit his written statement
of defence, if he so desires, and also state whether he
desires to be heard in person, within a period of fifteen
days, which may be further extended for a period not
exceeding fifteen days at a time for reasons to be recorded
in writing by the Disciplinary Authority or any other
Authority authorized by the Disciplinary Authority on his
behalf:

Provided that under no circumstances, the extension of

time for filing written statement of defence shall exceed
forty-five days from the date of receipt of articles of
charge.

Rule 30 of the Rules deals with service of orders, notices,

etc. The same reads as follows:

30. Service of orders, notices, etc.

Every order, notice and other process made or issued
under these rules shall be served in person on the
Government servant concerned or communicated to him
by registered post.

18. Bearing in mind the above provisions, we are tasked

to decide the question as to whether the Disciplinary
 12 wp1328.2003

Authority had complied therewith. Rule 14 did cast an

obligation on the Disciplinary Authority to deliver the
charge-sheet together with the accompanying documents
to the respondent or cause the same to be delivered to
him. In terms of rule 30, the Disciplinary Authority is under
obligation to serve the charge-sheet to the charged
employee in person or communicate to him by registered
post. The respondent was not attending duty; therefore,
question of personal service of the charge-sheet on him
could not or did not arise. What remained was
communicating the charge to him by registered post.
There is no dispute that the charge-sheet was despatched
by registered post on 4th May 1991 to the address of the
respondent, available in the records maintained by the
petitioners. The envelope was returned with the postal
remark “not claimed”. This in turn gives rise to a further
question, in the circumstances, as to whether there has
been substantial compliance of rule 14 read with rule 30 of
the Rules.
19. However, before venturing to answer the said
question, it would be profitable to take note of certain
decisions of the Supreme Court touching upon the relevant
point, i.e., of service or delivery of an article through
registered post and the presumption that can be drawn
based on the provisions of section 27 of the General
Clauses Act, 1897 and section 114 of the Evidence Act,
1872.
 13 wp1328.2003

20. The first of several decisions which we find relevant is

in Harcharan Singh vs. Smt. Shivrani and others5. It
was a case arising out of rent control laws. The majority
speaking through Hon’ble Tulzapurkar, J. had the occasion
to consider the provisions of section 27 of the General
Clauses Act and section 114 of the Evidence Act and it was
observed in paragraph 7 as follows:

“7. Section 27 of the General Clauses Act, 1897 deals with

the topic— ‘Meaning of service by post’ and says that
where any Central Act or Regulation authorises or requires
any document to be served by post, then unless a
different intention appears, the service shall be deemed to
be effected by properly addressing, prepaying and posting
it by registered post, a letter containing the document,
and unless the contrary is proved, to have been effected
at the time at which the letter would be delivered in the
ordinary course of post. The section thus raises a
presumption of due service or proper service if the
document sought to be served is sent by properly
addressing, prepaying and posting by registered post to
the addressee and such presumption is raised irrespective
of whether any acknowledgment due is received from the
addressee or not. It is obvious that when the section
raises the presumption that the service shall be deemed to
have been effected it means the addressee to whom the
communication is sent must be taken to have known the
contents of the document sought to be served upon him
without anything more. Similar presumption is raised
under illustration (f) to Section 114 of the Indian Evidence
Act whereunder it is stated that the court may presume
that the common course of business has been followed in
a particular case, that is to say, when a letter is sent by
post by prepaying and properly addressing it the same has
been received by the addressee. Undoubtedly, the
presumptions both under Section 27 of the General
Clauses Act as well as under Section 114 of the Evidence
Act are rebuttable but in the absence of proof to the
contrary the presumption of proper service or effective
service on the addressee would arise. ***.”
(italics in original)

5 (1981) 2 SCC 535.

 14 wp1328.2003

21. The next decision in M/s. Madan and Co. vs. Wazir
Jaivir Chand6 is authored by Hon’ble Ranganathan, J. for
the Bench. It also arose out of rent control laws. Paragraph
6 of the decision beautifully explains the concept of service
and receipt of articles despatched by registered post
(with or without acknowledgement due). To the extent
relevant for the present purpose, we quote hereinbelow
paragraph 6:
“6. *** The proviso insist that before any amount of rent
can be said to be in arrears, a notice has to be served
through post. All that a landlord can do to comply with this
provision is to post a prepaid registered letter
(acknowledgement due or otherwise) containing the
tenant’s correct address. Once he does this and the letter
is delivered to the post office, he has no control over it. It
is then presumed to have been delivered to the addressee
under Section 27 of the General Clauses Act. Under the
rules of the post office, the letter is to be delivered to the
addressee or a person authorised by him. Such a person
may either accept the letter or decline to accept it. In
either case, there is no difficulty, for the acceptance or
refusal can be treated as a service on, and receipt by, the
addressee. The difficulty is where the postman calls at the
address mentioned and is unable to contact the addressee
or a person authorised to receive the letter. All that he can
then do is to return it to the sender. The Indian Post Office
Rules do not prescribe any detailed procedure regarding
the delivery of such registered letters. When the postman
is unable to deliver it on his first visit, the general practice
is for the postman to attempt to deliver it on the next one
or two days also before returning it to the sender.
However, he has neither the power nor the time to make
enquiries regarding the whereabouts of the addressee; he
is not expected to detain the letter until the addressee
chooses to return and accept it; and he is not authorised
to affix the letter on the premises because of the
assessee’s absence. His responsibilities cannot, therefore,
be equated to those of a process server entrusted with the
responsibilities of serving the summons of a court under
Order V of the CPC. The statutory provision has to be

6 (1989) 1 SCC 264

 15 wp1328.2003

interpreted in the context of this difficulty and in the light

of the very limited role that the post office can play in
such a task. If we interpret provision as requiring that the
letter must have been actually delivered to the addressee,
we would be virtually rendering it a dead letter. The letter
cannot be served where, as in this case, the tenant is
away from the premises for some considerable time. Also,
an addressee can easily avoid receiving the letter
addressed to him without specifically refusing to receive it.
He can so manipulate matters that it gets returned to the
sender with vague endorsements such as ‘not found’, ‘not
in station’, ‘addressee has left’ and so on. It is suggested
that a landlord, knowing that the tenant is away from
station for some reasons, could go through the motions of
posting a letter to him which he knows will not be served.
Such a possibility cannot be excluded. But, as against this,
if a registered letter addressed to a person at his
residential address does not get served in the normal
course and is returned, it can only be attributed to the
addressee’s own conduct. If he is staying in the premises,
there is no reason why it should not be served on him. If
he is compelled to be away for some time, all that he has
to do is to leave necessary instructions with the postal
authorities either to detain the letters addressed to him for
some time until he returns or to forward them to the
address where he has gone or to deliver them to some
other person authorised by him. In this situation, we have
to choose the more reasonable, effective, equitable and
practical interpretation and that would be to read the word
‘served’ as ‘sent by post’, correctly and properly addressed
to the tenant, and the word ‘receipt’ as the tender of the
letter by the postal peon at the address mentioned in the
letter. No other interpretation, we think, will fit the
situation as it is simply not possible for a landlord to
ensure that a registered letter sent by him gets served on,
or is received by, the tenant.”

(italics in original)

22. The decision in Dr. Ramesh Chandra Tyagi vs.

Union of India and others7 deals with a situation of the
present nature where non-service of charge-sheet was held

7 (1994) 2 SCC 416

 16 wp1328.2003

to vitiate the disciplinary proceedings. Paragraph 7 of the

decision being relevant is quoted below:
“7. As regards the dismissal of the appellant it is
unfortunate that he did not join. The service discipline
does not permit such adamant attitude. We do not
approve of the conduct of the appellant. At the same time
the authorities too did not adopt any reasonable or
rational attitude. They were out to squeeze the appellant
and were not willing to budge and consider even when the
Director of the Pune Institute requested them not to post
him there as sending such a person was waste for a man
of such high calibre. True, the terms and conditions of
appointment provide that he could be transferred
anywhere in the country. Yet the action must be fair and
order legal. We have avoided entering into fairness but on
legality there is no doubt. Such attitude of the
administrative set-up is neither healthy nor conducive. In
service culture devotion to work and duty is more
important than clash of false ego. We are pained to
observe that entire proceedings do not leave very happy
and satisfactory impression. It was vehemently argued
that there was no procedural irregularity. But that is writ
large on the face of it. No charge-sheet was served on the
appellant. The Enquiry Officer himself stated that the
notices sent were returned with endorsement ‘left without
address’ and on other occasion, ‘on repeated visits people
in the house that he has gone out and they do not disclose
where he has gone. Therefore, it is being returned’. May
be that the appellant was avoiding it but avoidance does
not mean that it gave a right to Enquiry Officer to proceed
ex parte unless it was conclusively established that he
deliberately and knowingly did not accept it. The
endorsement on the envelope that it was refused, was not
even proved by examining the postman or any other
material to show that it was refusal by the appellant who
denied on oath such a refusal. No effort was made to
serve in any other manner known in law. Under Postal Act
and Rules the manner of service is provided. Even service
rules take care of it. Not one was resorted to. And from
the endorsement it is clear that the envelope containing
charge-sheet was returned. In absence of any charge-
sheet or any material supplied to the appellant it is
difficult to agree that the inquiry did not suffer from any
procedural infirmity. No further need be said as the
appellant having been removed for not complying with the
 17 wp1328.2003

transfer order and it having been held that it was invalid

and non est the order of dismissal falls automatically.”

23. In Dinanath Shantaram Karekar (supra) the Court

held that the position regarding service of a charge-sheet is
different from the position regarding communication of an
order of termination. Where disciplinary proceedings are
intended to be initiated by 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.
Similarly, when 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. In the facts
before the Court, it was found that there was a postal
endorsement of the addressee being “not found”. The Court
proceeded to hold that 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 be
legally treated to have been served. The appellant should
have made further efforts to serve the charge-sheet on the
respondent. A single effort in the circumstances of the
case could not have been treated as sufficient. That being
so, the very initiation of departmental proceedings was
 18 wp1328.2003

bad. It was ex parte even from the stage of charge-sheet,

which at no stage was served upon the respondent. Based
on the aforesaid reasoning, the Court dismissed the appeal
of the appellant and upheld the order of the Tribunal
impugned before it.
24. The Supreme Court in K. Bhaskaran vs. Sankaran
Vaidhyan Balan and another8 while considering an
appeal arising out of the Negotiable Instruments Act, 1881
(hereafter the “N.I. Act”, for short) was considering
whether the notice sent by the complainant to the accused,
which was returned as “unclaimed”, did give rise to the
cause of action. Since the relevant Act required receipt of
the notice, the Court held that “giving notice” in the
context would not be the same as receipt of the notice.
Giving is a process of which receipt is the accomplishment
and, therefore, it was for the payee to perform the former
process by sending the notice to the drawer at the correct
address. After referring to section 27 of the General
Clauses Act, the Court held in paragraphs 24 and 25 as
follows:

“24. No doubt Section 138 of the Act does not require that
the notice should be given only by ‘post’. Nonetheless the
principle incorporated in Section 27 (quoted above) can
profitably be imported in a case where the sender has
despatched the notice by post with the correct address
written on it. Then it can be deemed to have been served
on the sendee unless he proves that it was not really
served and that he was not responsible for such non-
service. Any other interpretation can lead to a very
tenuous position as the drawer of the cheque who is liable
to pay the amount would resort to the strategy of
subterfuge by successfully avoiding the notice.”

8 (1999) 7 SCC 510

 19 wp1328.2003

25. Thus, when a notice is returned by the sendee as

unclaimed such date would be the commencing date in
reckoning the period of 15 days contemplated in clause (c)
to the proviso of Section 138 of the Act. Of course such
reckoning would be without prejudice to the right of the
drawer of the cheque to show that he had no knowledge
that the notice was brought to his address. In the present
case the accused did not even attempt to discharge the
burden to rebut the aforesaid presumption.”
25. The decision in C.C. Alavi Haji vs. Palapetty
Muhammed and another9 is another case arising out of
the N.I. Act. There, a notice sent by registered post
acknowledgement due to the correct address was returned
with the endorsement “addressee was abroad”. On facts, it
was held that the requirement of section 138 of the N.I. Act
has been sufficiently complied with and the decision of the
High Court did not call for interference.
26. In D. Vinod Shivappa vs. Nanda Belliappa10, it
was held that no rule of universal application can be laid
down that in all cases where notice is not served on
account of non-availability of the addressee, the Court
must presume service of notice. It was also held that in a
case where notice is not claimed even though sent by
registered post, with the aid of section 27 of the General
Clauses Act, the drawer of the cheque may be called upon
to rebut the presumption, which arises in favour of service
of notice.
27. More or less the same view has been expressed by
the Supreme Court in Ajeet Seeds Limited vs. K. Gopala
Krishnaiah11 cited by Mr. Bharadwaj.

9 (2007) 6 SCC 555

10 (2006) 6 SCC 456
11 (2014) 12 SCC 685
 20 wp1328.2003

28. Reference to the aforesaid decisions would reveal the

opinion expressed by the Supreme Court in relation to
attempted service of notice by a landlord upon a tenant, of
charge-sheet by an employer upon an employee and of
notice upon the drawer of a dishonoured cheque by the
payee. Relying upon section 114 of the Evidence Act and
Section 27 of the General Clauses Act, the consistent
opinion of the Supreme Court is that a presumption has to
be drawn if the notice/charge-sheet is despatched upon
payment of the requisite charge by registered post to the
addressee with the correct address. Such presumption is,
however, rebuttable and the addressee is under obligation
to prove by leading evidence that the Court/authority may
not even presume service of notice/charge-sheet. When a
postal envelope is returned to the sender with the remark
“refused”, it is to be deemed that there has been proper
service unless there is evidence to prove the contrary. The
same approach would apply in respect of postal envelopes
returned with the remark “not claimed” as has been held in
the decisions of the Supreme Court referred to above. A
distinction, however, has to be drawn in cases where the
envelope is returned with the remark “not claimed” and
“not found”. A situation of “not found” occurs when the
addressee is not found at the address mentioned on the
envelope whereas a situation of “not claimed” would occur
when the addressee at the relevant point of tender/delivery
of the envelope is found to be absent, either once or
multiple times, and an intimation is left by the postal peon
to collect the envelope from the post office.
 21 wp1328.2003

29. Since the present case does not bring about a

situation of the addressee being “not found” when the
postal envelope was sought to be tendered/delivered, but a
situation of the postal envelope being returned to the
sender with the remark “not claimed”, it can well be
presumed that the postal peon intended to deliver/tender
the envelope containing the charge-sheet to the
respondent. Following the principles laid down in the
decisions in Harcharan Singh (supra) and M/s. Madan
and Co. (supra) as well as the requirements of rules 14
and 30 of the Rules, we cannot but hold that delivery of the
charge-sheet by the Disciplinary Authority to the
respondent must be presumed to be complete the moment
the requisite pre-payment was made and the envelope
containing the charge-sheet and the accompanying
documents made over to the postal authorities for despatch
to the respondent. It can also be presumed that the postal
peon left an intimation for the addressee to collect the
registered postal envelope from the post office. Obviously,
such presumption is rebuttable but we find no real attempt
on the part of the respondent to rebut such presumption.
We, therefore, hold that the Disciplinary Authority did not
breach the obligations imposed upon him by rule 14 read
with rule 30 of the Rules. In such circumstances, we hold
the ratio decidendi of the decisions in Dr. Ramesh
Chandra Tyagi (supra) and Dinanath Shantaram
Karekar (supra) to be clearly distinguishable.
30. There is one other aspect which is equally important.
We cannot ignore the particular circumstance, which did
 22 wp1328.2003

not go unnoticed by the Tribunal but a different conclusion

was reached by it based on its insistence qua compliance of
rule 14 of the Rules. Even if it is presumed that the
respondent did not receive the charge-sheet dated 4th May,
1991, it is clear that he had notice of the inquiry being
carried forward on the charge of unauthorized absence
levelled against him. Assuming that there had been no
previous attempt to serve the charge-sheet on
the respondent and the Disciplinary Authority, as in
Dr. Ramesh Chandra Tyagi (supra) was trying to
squeeze out the appellant and in the process did not adopt
any reasonable or rational attitude, yet, the normal
reaction for the respondent would have been to approach
the Disciplinary Authority with a request to serve the
charge-sheet. Admittedly, no such endeavour is discernible
on the part of the respondent. We quite appreciate that the
respondent was suffering from a psychiatric problem and it
may not have been perceived by him that he had a right to
call upon the Disciplinary Authority to serve him the
charge-sheet. However, simply because the respondent was
under some physical disability should not weigh in the mind
of the Tribunal or the Court to take a view against the
Disciplinary Authority that it either made no attempt or any
further attempt to serve the charge-sheet. The Disciplinary
Authority could not have known that the respondent was
suffering from psychiatric problems in the absence of any
intimation given by him about his physical condition right
from 21st May 1990 till 4th May 1991 and that, therefore, he
was unable to resume duty. We are inclined to presume
 23 wp1328.2003

that the Disciplinary Authority proceeded on the basis that

the charge-sheet dated 4th May 1991 was duly tendered/
delivered by the postal peon to the respondent and that he
had not claimed the envelope despite intimation being left.
In such a case, to hold that the Disciplinary Authority had
committed a procedural infirmity would be indeed harsh.
The situation is worsened by reason of what we have
referred to above that the respondent had knowledge of
the inquiry. On facts and in the circumstances, we do not
hold that the Disciplinary Authority was unjustified in
proceeding against the respondent ex parte.
31. It can be gathered from the factual narrative that not
only the charge-sheet, but also other intimations as well as
the order of compulsory retirement passed by the
Disciplinary Authority were returned as “not claimed”. The
order of compulsory retirement was also published in a
newspaper. It is, therefore, not a case where the
Disciplinary Authority did not make any further attempt to
bring it to the notice of the respondent that he stands
compulsory retired from service. All that was possible, the
Disciplinary Authority did which unfortunately may not
have attracted the notice of the respondent; however, for
the same, the Disciplinary Authority could not have been
faulted by the Tribunal.
32. Mr. Kumar’s reliance on rule 27(2)(a) of the Rules
does not advance the case of the respondent. Rule 27
provides for consideration of an appeal. As has been noted
above, the appeal was dismissed as time-barred. Since the
merits of the appeal were not examined by the Appellate
 24 wp1328.2003

Authority, there was no question of compliance with rule

27(2)(a) by the Appellate Authority. It is true that in terms
of rule 29(3) of the Rules, a revision is required to be dealt
with in the same manner as if it were an appeal under the
Rules. The relevant part of the order of the Revisional
Authority, extracted supra, does not suggest that there was
no compliance with the provision contained in rule 27(2)
(a); on the contrary, there is a specific finding returned by
the Revisional Authority that the respondent did not
participate in the inquiry although all attempts were made
to serve the charge-sheet on him. We, therefore, reject the
contention of Mr. Kumar.
33. We need to now deal with Mr. Kumar’s last contention
that the relevant authorities should have considered
whether the absence was wilful or due to compelling
circumstances beyond the control of the respondent.
Krsuhnakant B. Parmar (supra) has been relied upon in
this regard. Since there is no return to the Rule, we have
looked into the grounds that were urged by the respondent
in support of the relief claimed in the original application to
ascertain whether compelling reasons were forwarded as a
factor that disabled the respondent to stay away from
work. The grounds that were urged read as follows:
“(a) Applicant submits that he has been
condemned without any hearing whatsoever
inasmuch as applicant has not been given any
opportunity of giving his say as the enquiry has been
held in the absence of the applicant.
(b) Applicant submits that Respondents were
aware that applicant was suffering from psychiatric
problems and yet the Respondents proceeded with
the enquiry in the absence of the applicant.
 25 wp1328.2003

(c) Applicant’s appeal to the Appellate Authority as

well as his Revision Application to the Revisional
Authority has been summarily rejected without any
application of mind on the ground that the same
were time barred.
(d) Applicant is otherwise entitled to the reliefs
prayed for.”

34. In none of the above grounds did the respondent urge

the contention under consideration and as canvassed by Mr.
Kumar. Without the factual foundation being laid, we
cannot conclude that the respondent did suffer from such
psychiatric problem that he could not approach the
petitioners prior to 1996. Even the medical certificates/
prescriptions have not been brought on record of these
proceedings by the respondent. We, therefore, find no
ground to apply the law laid down in Krsuhnakant B.
Parmar (supra).
35. Even otherwise, the grounds urged before the
Tribunal also do not appear to be of any substance having
regard to the peculiar facts and circumstances of this
particular case.
36. It was the case of the respondent that he could not
participate in the proceedings because of reasons beyond
his control. However, the respondent did have notice of
inquiry, but did not participate and even did not request the
Disciplinary Authority to provide him with the charge-sheet.
The fault thus lay with the respondent and not the
Disciplinary Authority. The Tribunal, thus, ought not to have
held that the petitioners violated the provisions regarding
conduct of disciplinary proceedings by denying the
respondent opportunity of hearing.
 26 wp1328.2003

37. Insofar as ground (b) is concerned, there is no

material to suggest that while inquiry was in progress, the
Disciplinary Authority or the Inquiry Officer had notice/
knowledge that the respondent was suffering from
psychiatric problem. Therefore, such ground was also
lacking in merit and could not have afforded reason for the
Tribunal to interfere.
38. Although ground (c) mistakenly reflects that the
Appellate and Revisional Authorities had dismissed the
appeal and the revision as time barred, we have found
from the order dated 2nd August 1997 that the revision was
dealt with on merits. Despite the order is cryptic, the
respondent did not attack such order on such ground. The
ground urged, to attack the order of the Revisional
Authority, being entirely wrong, the Tribunal ought not to
have granted the relief of reinstatement.
39. We are also inclined to the view that the penalty
imposed on the respondent is not disproportionate to the
gravity of the charge levelled against him. Although
removal from service was an option, the Disciplinary
Authority elected the immediately preceding option under
rule 11 of the Rules and allowed full terminal benefits, as
admissible, to the respondent. No failure of justice has,
thus, been caused.
40. For the aforesaid reasons, we are of the clear opinion
that the decision of the Disciplinary Authority imposing the
penalty of compulsory retirement on the respondent ought
not to have been interfered with by the Tribunal.
 27 wp1328.2003

41. In the result, the impugned judgment and order dated

18th December 2002 passed by the Tribunal in Original
Application No.502/1998 stands set aside. The original
application on the file of the Tribunal shall stand dismissed.
All benefits flowing from the order of compulsory
retirement shall be released in favour of the respondent, if
not already released, as expeditiously as possible.
42. Rule is made absolute on the above terms. The
parties shall, however, bear their own costs.

(M.S. KARNIK, J.) (CHIEF JUSTICE)

Digitally
signed by
ATUL
ATUL GANESH
GANESH KULKARNI
KULKARNI Date:
2022.04.25
14:37:04
+0530

khj