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1982 DIGILAW 1104 (ALL)

Ram Pal Singh v. U. P. State Electricity Board

1982-09-24

K.C.AGARWAL, R.B.LAL

body1982
JUDGMENT R.B. Lal, J. - By this writ petition under Article 226 of the Constitution the petitioner seeks quashing of the orders of his transfer, suspension and termination of service, and issue of a direction in the nature of mandamus commanding the opposite parties to treat him in service. 2. The petitioner alleged that in the year 1967 he was appointed as Work Charge Ledger Munshi by the Executive Engineer, and was posted in the Revenue Section at Bijnor. In the year 1970 he was appointed as Survey Assistant in the work charge cadre at Bijnor in the pay-scale of Rs. 100 per month. In the year 1973 he was transferred from Maintenace Division to Rural Electrification Division and posted at Bijnor. He was never assigned the duties of a meter reader and was not paid the salary of a meter reader. He had always drawn salary as Survey Assistant. In the years 1973 and 1974 he was elected Joint Secretary of U.P. Hydel Electric Employees' Union, Lucknow. The officers of the U.P. State Electricity Board were not happy with his trade union activities. A meeting of the Union was held at Lucknow on 23rd and 24th August, 1974 and he attended the same. Thereafter all of a sudden he fell ill and made an application for grant of medical leave. He continued to extend his medical leave by submitting successive applications. He was not informed that his applications for grant of medical leave could not be entertained or granted, or that the same were, rejected. By letter dated 30-1-1975 the office of the Executive Engineer returned the medical leave applications with the remark that his services had already been terminated. 3. The petitioner further urged that a notice had appeared in a news paper, 'Bijnor Times' on 8-12-1974 giving out that he had been transferred from Dhampur to Sub-Division Chandpur by order dared 19-8-1974 and had been relieved on transfer with effect from 24-8-1974 to join his duty in Sub-Division Chandpur. Another notice appeared in the newspaper 'Amar Ujala', Bareilly on 21-12-1974 saying that he was relieved from Dhampur Sub-Division on 24-8-1974 and was suspended from 26-8-1974 in view of a police report and that since he was absent without permission, if he did not turn up to 24-12-1974 it would be presumed that he was absconding deliberately. Another notice appeared in the newspaper 'Amar Ujala', Bareilly on 21-12-1974 saying that he was relieved from Dhampur Sub-Division on 24-8-1974 and was suspended from 26-8-1974 in view of a police report and that since he was absent without permission, if he did not turn up to 24-12-1974 it would be presumed that he was absconding deliberately. The transfer order and the suspension order were illegal and were challenged in writ petition No. 240 of 1975. 4. The order of termination of the services of the petitioner was passed on 28-12-1974 and the petitioner also challenged it as illegal on the ground that no charge-sheet was served on him and he was not given an opportunity to show cause. The ex parte order for termination of his services was mala fide. 5. The opposite parties filed a counter affidavit through Birbal Singh, Head Clerk, Electricity Maintenance Division; Dhampur, In the counter affidavit it was said that the petitioner was appointed in the "Work Charge Establishment" and there was no pay scale for work charge employees. They were paid consolidated pay chargeable to their work. The post of Survey Assistant was a temporary post in the "Work Charge Establishment" and there was no such post in the regular cadre. Since the petitioner was working as a Survey Assistant for a considerable time, he had to be absorbed in the regular cadre and this could be done by absorbing him on the post of meter reader in the regular cadre. The petitioner was work charge employee as Survey Assistant and, therefore, there was no question of his getting pay as meter reader. 6. The opposite parties further averred in the counter affidavit that the petitioner went to attend the meeting of the Union at Lucknow without obtaining permission of his immediate officer. The petitioner was not at all ill. He was avoiding compliance of transfer order from Dhampur. He was relieved from duty in the afternoon of 24th August, 1974. The application for grant of medical leave from the petitioner was returned to his home address with the remark that the application should be sent to his new office of posting at Moradabad. The letter was received back with the remark that the petitioner had gone out of station and was not available. The application for grant of medical leave from the petitioner was returned to his home address with the remark that the application should be sent to his new office of posting at Moradabad. The letter was received back with the remark that the petitioner had gone out of station and was not available. Since the petitioner had been relieved from Dhampur on 24-8-1974 that office could neither grant nor reject his application for leave. The various communication sent to the petitioner to his home address were returned with the remark that the petitioner had gone out and his family members were not telling his whereabouts. In these circumstances, the transfer order was ultimately published in the Bijnor Times. It was an important daily of the area. The transfer order was sent to the petitioner at his residence at Chandpur where he was living and also at his village address, but the letters were received back undelivered with the remark that he was not present and his whereabouts were not known. The order of termination dated 28-12-1974 was also sent by registered post acknowledgement due on the petitioner's address. The services of the petitioner were terminated in a legal manner after giving him every opportunity to join his post at Moradabad. 7. The petitioner filed a rejoinder affidavit and generally denied the averments made in the counter affidavit and reiterated what he had said in his writ petition. He also filed a supplementary affidavit dated 4-10-1976 and challenged the legality of the U. P. State Electricity Board (Officers and Servants) (Conditions of Service) Regulations, 1973 and 1976. 8. We have heard the learned counsel for the parties at some length. 9. We have carefully gone through the petition, the counter affidavit and the rejoinder affidavit. Since the averments made in the counter ^affidavit were not denied specifically in the rejoinder affidavit and only generally it was said that the averments were not admitted or were denied, the same are to be taken as correct for purposes of this petition. The facts which emerge from the counter affidavit are these. The post of Survey Assistant in the Work Charge Establishment was a temporary post and there was no such post in the regular cadre of the Board. As a Survey Assistant the petitioner was a temporary employee in receipt of a consolidated pay. The facts which emerge from the counter affidavit are these. The post of Survey Assistant in the Work Charge Establishment was a temporary post and there was no such post in the regular cadre of the Board. As a Survey Assistant the petitioner was a temporary employee in receipt of a consolidated pay. As Survey Assistant he was not a permanent employee of the Board. He was due for being absorbed in the regular cadre and for that purpose he had to take over as a meter reader, because that was a post in the regular cadre of the Board. The petitioner did not join the post of meter reader and, therefore his status remained that of a temporary employee in the Work Charge Establishment. 10. The facts and circumstances disclosed in the counter affidavit establish it beyond any shadow of doubt that the petitioner was avoiding receipt of transfer order and other communications which were being sent by the authorities concerned to him in connection with his applications for grant of medical leave. The contention of the opposite parties that the petitioner was not ill also seems to be correct. If the petitioner had been in fact ill, he would have been found present at his residence at Chandpur or in his village and his family would have been in a position to give out his whereabouts to the postman. The veil of secrecy which was kept about the whereabouts of the petitioner only indicates that he was deliberately keeping away and not accepting various communications. The stand of the petitioner that he had no information of the transfer order is not correct. The circumstances strongly point out that the application for the grant of leave on medical grounds were made in an attempt to void compliance with the order of transfer dated 19-8-1974. Since the petitioner did not care to receive the communications sent by post, the authorities concerned had to take recourse to the publication of notices in local newspapers. The counter affidavit shows that the two newspapers Bijnor Times and Amar Ujala were having wide circulation in the district of Bijnor. When the petitioner did not report on duty till 24-12 1974, the order of termination of his services was passed by the Superintending Engineer on 28-12-1974. 11. The counter affidavit shows that the two newspapers Bijnor Times and Amar Ujala were having wide circulation in the district of Bijnor. When the petitioner did not report on duty till 24-12 1974, the order of termination of his services was passed by the Superintending Engineer on 28-12-1974. 11. The petitioner has annexed a copy of the U. P. State Electricity Board (Officers and Servants)(Conditions of Service) Regulations, 1973 with his supplementary affidavit. The challenge to the validity of these regulations is, in our opinion, not well founded, in view of the pronouncement of the Supreme Court in U. P. State Electricity Board v. Abdul Shakar Hashmi, AIR 1981 SC 1708 . The Supreme Court laid down that the Board was competent to frame regulations in exercise of the powers conferred in clause (k) of Section 79 of the Electricity (Supply) Act, 1948. That case related to the validity of regulations framed in tire year 1970, but the principle would be equally applicable to the regulations of 1973. However, in view of clause 5 of the regulations of 1973, these regulations can have no application to the case of the petitioner. Clause 5 reads thus: "5 Nothing in these regulations shall apply to workmen as defined in the U. P. Industrial Disputes Act, 1947." The expressions 'workman' has been defined in clause (z) of Section 2 of the U. P. Industrial Disputes Act, 1947. It has not been disputed before us that the petitioner who was receiving a consolidated pay of Rs. 100 came within the definition of workman as such. It must therefore, be held that the regulations of 1973 have no application to the case of the petitioner. 12. Clause 2 of the regulations of 1973 indicates that rules and orders applicable to corresponding categories of Government servants under the rule-making control of the Government of Uttar Pradesh were applicable to the respective categories of employees of the Board in matters relating to conduct and discipline and termination of appointment, subject to the modification that references to the Governor or the State Government were to be read as references to the Board, 13. The order of termination dated 28-12-1974 does not refer to the rule under which the power of termination of the temporary services of the petitioner was exercised. The order of termination dated 28-12-1974 does not refer to the rule under which the power of termination of the temporary services of the petitioner was exercised. However it may be pointed out that the learned counsel for the petitioner has not urged before us that the relevant rules and orders did not contain such a power of termination and the termination order was, therefore, illegal. We therefore, see no reason to hold that the order of termination of the service of the petitioner by the Superintending Engineer was against rules and illegal. 14. The learned counsel for the petitioner has challenged the validity of the order of termination dated 28-12-1974 on the ground that it sought to terminate the services of the petitioner with retrospective effect from 26-8-1974. He has urged that such a retrospective termination of service was not permissible by law and was, therefore, illegal. The learned counsel for the opposite parties has urged that the order of termination was in two parts and the part that the termination would operate retrospectively was severable and, therefore, it could be ignored. The first part of the order stating that the services of the petitioner were terminated remained intact and could still be enforced. In support of this contention he has referred to the Supreme Court decision in Jeeveratnam v. State of Maclras, AIR 1966 SC 951 . 15. In Jeevaratnam's case the order of dismissal dated 17-10-1950 was: "The appellant be dismissed from service with effect from the date of his suspension, that is to say from May 20,1949." Their Lordships of the Supreme Court observed that:- "In substance, this order directed that (1) the appellant be dismissed and (2) the dismissal to operate retrospectively as from May 20, 1949. The two parts of this composite order are separable, The first part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The two parts of this composite order are separable, The first part of the order operates as a dismissal of the appellant as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 17, 1950 is valid and effective." In the instant case, the order of termination was as under: "The services of Shri Ram Pal Singh S. S. A. (under suspension), who has not reported his presence to Sub-Divisional Officer Electricity Maintenance Sub-Division till date in spite of press notification and has thus been absconding, are terminated with effect from 26-8-1974." Briefly put, the termination order was that the services of the petitioner are terminated with effect from 26-8-1974. This order too consists of two parts which are separable. The effect of the first part is termination of the services of the petitioner as from 28-12-1974. We are therefore, of the view that the order of termination dated 28-12-1974 is not invalid on the ground that it sought to terminate the services of the petitioner with retrospective effect. 16. No other submission has been made in this writ petition on behalf of the petitioner. 17. In view of the preceding discussion, the order of termination of the services of the petitioner cannot be regarded as invalid or illegal and it is rot liable to interference by this Court. The petitioner is therefore, not entitled to any relief and the writ petition must fail. 18. The writ petition has no merit and fails and is accordingly dismissed. In the circumstances of the case we direct the parties to bear their own costs of these proceedings.