Full Text
HIGH COURT OF DELHI
W.P.(C) 10052/2016
Date of Decision: 8th March, 2017 DINESH KUMAR GUPTA ..... Petitioner
Through Mr. A.K. Singla, Sr. Advocate with Mr. H.D. Sharma, Advocate.
Through Mr. Sarat Chandra, Advocate for the UOI.
Mr. Sanjeev Narula, Senior Standing Counsel Customs.
HON'BLE MR. JUSTICE CHANDER SHEKHAR SANJIV KHANNA, J. (ORAL)
C.M. No. 1968/2017 This is an application for production of Annexures A and B i.e. RTI correspondence with the postal authorities and the original envelop posted on 13th December, 2012 along with the enclosure i.e. letter dated 2nd November, 2012, received by the petitioner on 14th December, 2012.
We take the said documents on record, but the effect thereof will be examined and considered independently. The application is accordingly disposed of.
2017:DHC:1392-DB Review Petition No. 526/2016
Dinesh Kumar Gupta, the applicant seeks review of the order dated
26th October, 2016, whereby W.P. (C) No. 10052/2016 was dismissed.
JUDGMENT
2. The applicant, who was working as Superintendent in Service Tax Commissionerate, New Delhi, by request letter dated 29th August, 2012 had asked for voluntary retirement under Rule 48A of the Central Civil Services (Pension) Rules, 1972 with effect from 30th November, 2012.
3. The case of the review-applicant is that the respondent authorities did not communicate rejection of the request for voluntary retirement before the date specified in the notice, i.e., 30th November, 2012 and, therefore, as per the mandate of Rule 48A, the applicant had voluntarily retired on 30th November, 2012. It is a case of deemed acceptance of request for voluntary retirement made vide letter dated 29th August, 2012.
4. The applicant submits that he had learnt about the refusal for the first time only on 14th December, 2012, when he had received vide Speed Post the refusal letter dated 2nd November, 2012, signed on 8th The applicant asserts and claims that he was never served with this letter earlier. Reliance is placed upon the RTI information received from the department of post by the applicant and placed on record as Annexure A to C.M. No. 1968/2017, to assert that the refusal letter dated 2nd November, 2012 was not dispatched and posted on 9th
5. Learned senior counsel appearing for the review-applicant has drawn our attention to paragraph 4 of the order dated 26th October, 2016, which records that the refusal letter dated 2nd November, 2012, signed by the Deputy Commissioner (P&A), Service Tax, New Delhi on 8th November, 2012, was posted to the applicant’s permanent address in Bhilai. It is stated that as per the respondents, the letter dated 2nd November, 2012, which was signed by the Deputy Commissioner (P&A), Service Tax, New Delhi on 8th November, 2012, was never sent to the permanent address of the applicant at Bhilai.
6. We would accept the contention of the applicant that paragraph 4 of the order dated 26th October, 2016 incorrectly records that the letter dated 2nd November,2012 signed by the Deputy Commissioner (P&A), Service Tax, New Delhi on 8th November, 2012, was posted to the applicant’s permanent address at Bhilai, for it is also the case of the respondents that the letter was posted and addressed to the applicant at New Delhi.
7. In spite of the aforesaid correction, we do not think that the order dated 26th October, 2016, is required to be reviewed or recalled for the following reasons.
8. The request of the petitioner for voluntary retirement under Rule 48A submitted vide letter dated 29th August, 2012, was rejected by the Competent Authority vide communication dated 17th October, 2012. This communication from the Additional Commissioner, Cadre Control Unit (DZ) to the Commissioner, Service Tax Commissionerate, New Delhi, records as under:- “ Please refer to your letter C.No. II- 3(11)Estt./VRS/D.K. Gupta/ST/2012/1994[3] dt. 13.09.12 wherein request dated 29.08.12 of Sh. Dinesh Kumar Gupta, Supdt. For Voluntary retirement from service w.e.f. 31.11.2012 was forwarded. I have been directed to inform you that the request dated 29.08.2012 of Sh. Dinesh Kumar Gupta (DOB- 26.07.62) Supdt. For Voluntary Retirement from service under Rule 48A has not been accepted by the Competent Authority in view of DGoV advise (sic) of initiation of RDA for major penalty proceedings against the officer. As the officer is presently posted under your charge, you are requested to inform the same to Sh. Dinesh Kumar Gupta, Supdt. under intimation to this office. ” This letter/order dated 17th October, 2012, had rejected the request for voluntary retirement by the Competent Authority because the Director General of Vigilance had advised initiation of regular departmental proceedings for major penalty against the present applicant. The aforesaid refusal by the Competent Authority was communicated long before the date from which the voluntary retirement was sought i.e. 30th The applicant does not dispute or deny this inter-departmental communication dated 17th October, 2012.
9. What was/is under question and challenge before the Tribunal and before us in the writ petition, and in this review application, is the communication of the said rejection to the applicant by the Deputy Commissioner (P&A), Service Tax, New Delhi.
10. As per the respondent authorities, the letter of rejection was written on 2nd November, 2012 and was signed by the Deputy Commissioner (P&A), Service Tax, New Delhi on 8th November, 2012. This is also borne out and is clear from the letter enclosed by the applicant as Annexure B to C.M. No.1968/2017. To this extent, also, there is no dispute or challenge. The challenge and question is raised, as to the date when this letter was posted and dispatched.
11. This letter dated 2nd November, 2012 was diarised and thereafter given No.26907 on 9th November, 2012. This is also clearly visible and mentioned in the said letter dated 2nd
12. On the question of communication of this letter, there is dispute. The Tribunal in the impugned order and this Court in the order dated 26th October, 2016, have observed and held that it was difficult to accept that the applicant was not aware that his request for voluntary retirement was rejected, for regular departmental proceedings for major penalty proceedings were being initiated against him. The order of the Tribunal dated 19th September, 2016 and the order dated 26th October, 2016 also refer to the contention of the respondent authorities that an attempt was made to serve the letter of rejection before it was dispatched, but the petitioner had refused to accept or receive the same.
13. Learned senior counsel appearing for the applicant has submitted that what was sought to be served on the applicant on 9th November, 2012, was the inter-departmental communication dated 17th October, 2012 and not the letter dated 2nd November, 2012. Our attention was drawn to the office noting dated 19th December, 2012. Be that as it may, the fact of the matter is that an attempt was made to serve the rejection communication on the applicant and inform him that his request for voluntary retirement had been declined. The service was sought to be made personally on the applicant on 9th November, 2012. The applicant had refused.
14. We would also examine the dispute, whether or not this letter dated 2nd November, 2012 was actually dispatched or posted on 9th November,
2012. The respondent authorities in support of the contention that this letter was posted on 9th November, 2012, have relied upon the Speed Post register with Code No.902-07 dated 9th November, 2012. The letter in question is listed at Sr. No.45 and was posted vide receipt number ED 78020764/6IN. The dispatch number 26907 is also mentioned. This letter with other letters from Sr. Nos.[1] to 98 was handed over to the post office on 10th November, 2012 as is apparent from the signature and receipt at page number 165 of the paper book. Thus there is evidence to establish and show posting and dispatch of the rejection letter dated 2nd
15. The petitioner in support of his contention, that he did not receive the said letter, has relied upon the RTI information furnished by the Post Office Paschim Vihar i.e. the post office connected with his residential address. As per the said post office, they had not received any speed post letter with Speed Post article number ED 78020764/6IN dated 9th The applicant had sought information from the post office of his area and not from the post office from where the letter was dispatched or posted. Moreover, the dispatch register, receipt number ED 78020764/6IN recorded therein, and the signature of the postal authorities indicates that this letter, with 97 other letters, was received for dispatch by the Post Office-Income Tax Office. These letters were received by the said post office on 10th November, 2012 as per the date mentioned in the Speed Post register. We would therefore accept the stand of the respondents that they had dispatched and posted the letter dated 2nd November, 2012 on 9th /10th
16. The applicant has also relied upon the Speed Post register of Code No.902-07 dated 13th December, 2012, which relates to the Speed Post Article Number as ED 80033660 2IN, dated 13th December, 2012. The applicant’s contention is that this register at Sr. No.63 also mentions the diary number 26907 and this would show that the letter dated 2nd November, 2012, signed by the Deputy Commissioner (P&A), Service Tax, New Delhi on 8th November, 2012, was dispatched for the first time only on 13th December, 2012. The contention is far-fetched and fallacious. 26907 is the diary number recorded on 9th November, 2012. Every time this letter was posted, the diary number would be mentioned. This diary number is also mentioned in the dispatch/post register for the date 9th
17. Reference to the receipt No.26907 is to the diary number or the number mentioned in the letter dated 2nd November, 2012 itself. This is an internal code of the department i.e. the Service Tax Department, not the code given by the postal authorities. The code or dispatch number given by the postal authorities was ED 78020764/6IN and ED 80033660 2IN, for the posting dated 9th November, 2012 and 13th December, 2012 respectively. As per the respondents, the letter dated 2nd November, 2012 was again posted as the applicant had asserted that he had not received this letter earlier. Second posting of the said letter would not confer any benefit to the applicant.
18. In State of Punjab Vs. Khemi Ram, (1969) 3 SCC 28, the Supreme Court had examined the question as to what amounts to “communication” and when a communication is complete. It was held:-
19. The aforesaid quotation would indicate that as far as the authorities were concerned, communication was complete when the order/communiqué was dispatched and handed over to the postal authorities i.e. on 10th November, 2012. Thereafter, the respondent authorities could not have changed their mind or modified the said order. In the present case, the order after being signed on 8th November, 2012, was complete in all respects. The order could not have been modified once it was diarised and given number and thereafter given to the post office for dispatch. Even if we are to assume and accept that the applicant never received the speed post letter sent vide Speed Post article number ED 78020764/6IN, we would hold that the communication, once it was dispatched, was final and binding. For arriving at the aforesaid conclusion, we have relied on the principle of preponderance of probability.
20. We would also record our difficulty in accepting that the applicant was unaware that his request for voluntary retirement had been rejected by the Competent Authority. The applicant was apparently aware and conscious that regular departmental proceedings for major penalty were being initiated against him. This was the reason why he had made a request for voluntary retirement.
21. In these circumstances, the contention of the applicant that voluntary retirement application should be deemed to have been accepted as there was no communication or refusal on or before 30th November, 2012, has to be rejected.
22. In view of the aforesaid reasoning, we dismiss the review application. There will be no order as to costs.
SANJIV KHANNA, J. CHANDER SHEKHAR, J. MARCH 08, 2017 NA