Important Point
In case of disciplinary proceedings, actual service of charge-sheet and show cause notice is essential; the theory of communication cannot be invoked and actual service must be proved and established.

Judgment

S. Saghir Ahmad, 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who died during the pendency of the proceedings before the Central Administrative Tribunal, Bombay and has since been replaced by the present respondents, was appointed as unskilled labour in the Naval Armament Depot, Bombay.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, 1973, he was de­clared quasi-permanent on that post with effect from 1.8.1966. 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 of removal as also the appellate order was 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 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.

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

3. 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 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 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 charge sheet which, at no stage, was served upon the respondent.

4. 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 effected on the respondent by publication in a newspaper without making any earlier effort to serve him personally be tendering the show-cause notice 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-cause notice cannot, therefore, in these circumstances, be held to have been served on the respondent. In any case, since the very initiation 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.

5. Lastly, in order to save the lost battle, a novel argument was raised by 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