Oaya Nath Singh v. Bihar State Electricity Board — 1995 DIGILAW 607 (PAT)

Judgment S. J. Mukhopadhaya, J. 1. The petitioner has challenged the order dated 22nd of August, 1995, as contained in Annexure-1, by which he has been suspended in contemplation of a departmental proceeding. 2. The petitioner was posted as general Manager-cum-Chief Engineer in the Tirhut Area Electricity Board, muzaffarpur, under the jurisdiction of the respondent-Bihar State Electricity board (hereinafter referred to as the board ). While the petitioner was so posted he was suspended by the impugned order, as contained in Annexure-1. 3. When the case was taken up, counsel for the petitioner assailed the impugned order of suspension (Annexure-1) on two grounds, namely, (a) impugned Order dated 22nd of August, 1995 (Annexure-1) has not been issued by the order of the board, but it has wrongly been stated therein that the same has been issued by the Board; and (b) the impugned order of suspension dated 22nd of August, 1995 even if issued by the order of the Chairman of the board, the Chairman of the Board having no jurisdiction to suspend an officer of the rank of General manager-cum-Chief Engineer. The impugned order (Annexure-1) is without jurisdiction. 4. The counsel for the petitioner also relied on different Annexures enclosed with the writ petition, including the Standing Orders to show the duties and responsibilities of general Manager-cum-Chief Engineer and other employees of the Board. 5. A counter-affidavit has been filed by the respondents. In their counter affidavit it has been stated that during the pendency of the writ petition a departmental proceedings has also been initiated against the petitioner and the charge-sheet has been issued vide one resolution dated 23rd of September, 1995 (Annexure-B-3 to the counter-affidavit ). At the first instance when the case was earlier taken up, counsel for the Board submitted that the order of suspension has been issued by the order of the Chairman of the Board. The same has been issued in anticipation of approval by the Board. One notification No.109, dated 16th of september, 1992 (Annexure B-4 to the counter affidavit) has been enclosed by the respondents. The same has been issued in anticipation of approval by the Board. One notification No.109, dated 16th of september, 1992 (Annexure B-4 to the counter affidavit) has been enclosed by the respondents. It was contended by the counsel for the board that in pursuance of the said notification dated 16th of September, 1992, issued in terms with Rule 79 (K) of the Electricity (Supply) Act, 1948, the power has been vested with the Chairman of the Board to suspend any employee of the Board, in anticipation of approval by the board. 6. The counsel for the petitioner also attacked the notification No.109 dated 16th of September, 1992 (Annexure-B-4) and contended that by virtue of the aforesaid notification, no power has been delegated to the chairman of the Board to suspend an employee like the petitioner in anticipation of approval of the board. According to him the notification dated 16th of September, 1992 (Annexure-B-4) is not at all applicable in the matter of suspension of an employee of the Board. 7. This Court by its earlier order directed the counsel for the board to produce the relevant file relating to suspension of the petitioner. The same was produced by the counsel for the Board at the time of hearing of the case at the stage of admission. I have already gone through the said file relating to suspension of the petitioner. 8. From perusal of the said file it is clear that though noting was routed from the lower stage to take appropriate disciplinary action against different officials/engineers, who were posted in Tirhut Area Electricity board, Muzaffarpur, for certain acts of omission and commission, the matter ultimately reached at the stage of Secretary and Member (Administration) of the Board. The member (Administration) of the board vide his noting recommended to suspend a number of officials/engineers. He also recommended to ask explanation and to take suitable action on the petitioner. Thereafter when the file reached before the chairman of the Board, he approved the noting of the Member (Administration) and ordered to suspend the erring officials/engineers, including the petitioner. It is on that basis the impugned order of suspension dated 22nd of August, 1995 (Annexure-1) has been issued. 9. At this stage it is to be taken into note that the board consists of the four following members: (a) Chairman, (b) Member (Administration), (c) Member (Finance) and (d) Member (Technical ). It is on that basis the impugned order of suspension dated 22nd of August, 1995 (Annexure-1) has been issued. 9. At this stage it is to be taken into note that the board consists of the four following members: (a) Chairman, (b) Member (Administration), (c) Member (Finance) and (d) Member (Technical ). The aforesaid Chairman and members are employed in the Board. Apart from the aforesaid four Chairman/members, there are three more ex-officio Members, who are State government employees, like secretary, Electricity Department etc. As the order of suspension (Annexure-1) was issued only on the direction of the Chairman and Member (Administration) of the Board, it was contended by the counsel for the petitioner that the order of suspension (Annexure-1) is not an order of the Board. It was in this background stand was taken by the Board in their counter-affidavit that the said order (Annexure-1) should be construed as an order of the Chairman, issued in anticipation of approval of the Board. It has been stated by the counsel for the Board and accepted by the counsel for the petitioner that subsequently the order of suspension has been approved by the full Board vide its meeting dated 14th of September, 1995. In the said meeting the following persons/members were present: (1) S. P. Kocher - As Chairman. (2) S. P. Seth - As Member (Administration) (3) G. N. Rai Yadav - As Member (Technical) (4) VS. Dubey - As Ex-officio member (5) A. K. Upadhyay - Ex-officio member. At the time of argument, on the last date of hearing the counsel for the Board also produced one Standing Order No.642 dated 29th of july, 1983. He also placed reliance on one unreported decision given by a Division Bench of this Court in the case of Ajoy Kumar Prasad V/s. Bihar State Electricity Board and others passed in C. W. J. C. No.584 of 1993 (R) disposed of on 23rd of march, 1995. 10 In the aforesaid background the counsel for the petitioner made the following submissions : according to him the Board has framed one Regulation known as bihar State Electricity Board Service regulation, 1976. The same has been framed in terms with Section 79 (C) of the Electricity (Supply) Act, 1948. 10 In the aforesaid background the counsel for the petitioner made the following submissions : according to him the Board has framed one Regulation known as bihar State Electricity Board Service regulation, 1976. The same has been framed in terms with Section 79 (C) of the Electricity (Supply) Act, 1948. It was contended that the said 1976 Regulation being silent with respect to suspension of an employee, like the petitioner, in contemplation of a departmental proceeding, the respondents had no jurisdiction to suspend the petitioner. The, counsel for the petitioner relied on the decision of the Supreme court given in the case of baradakanta Mishra V/s. High Court of orissa and others, reported in AIR 1976 SC 1899 as well as the case of tej Pal Singh V/s. State of U. P. and another, reported in A. I. R.1986 S. C.1814. It was submitted that though the inherent power may be there with the appointing authority, i. e. the board to suspend the petitioner, but in that case they may not take work from him but will have to pay the full salary in his favour. It was also urged that in any case, the Board have not issued the impugned Annexure-1, the same is without jurisdiction, having been issued by the order of the Chairman of the Board. The impugned Annexure-1 being without jurisdiction and illegal, such illegal order cannot be confirmed/approved even by the board, as they have done vide their resolution dated 14th of September, 1995. 11. So far as the notification no.109 dated 16th of September, 1992 (Annexure-B-4) is concerned, it was submitted by the counsel for the petitioner that the power delegated to the Chairman by the Board under the said provision is in terms with section 79 (K) of the Electricity supply) Act, 1948. According to him as Sec.79 (K) of the Electricity (Supply) Act, 1948 , does not stipulate anything relating to suspension, the notification dated 16th of September, 1992 (Annexure-B-4) cannot be construed to be an instrument delegating such power of suspension to the Chairmans of the Board. He placed reliance on Sec.79 (C) as well as Sec.79 (K) of the electricity (Supply) Act, 1948 and contended that at best Regulation can be framed thereunder by the concerned authority, but the power to suspension cannot be delegated under the aforesaid provisions. 12. He placed reliance on Sec.79 (C) as well as Sec.79 (K) of the electricity (Supply) Act, 1948 and contended that at best Regulation can be framed thereunder by the concerned authority, but the power to suspension cannot be delegated under the aforesaid provisions. 12. So far as the Standing order No.642 dated 29th of July, 1983 as well as the unreported decision of a Division Bench of this court given in the case of Ajoy kumar Prasad (supra) are concerned, as produced by the counsel for the board before this Court, counsel for the petitioner submitted that the same are not applicable in the case of the petitioner. According to him the Standing Orders are issued as an instrument in terms with the Industrial Disputes Act, 1947 . Such standing Orders are applicable with respect to such employees of the board, who are workmen and are guided by the Industrial Disputes act, 1947. It was contended that the petitioner being an Officer of the rank of General Manager-cum-Chief engineer, he is not guided by aforesaid Standing Order dated 29th of July, 1983. According to him, it is only by virtue of service regulation framed under Sec.79 (C) of the electricity (Supply) Act, 1948, any condition of service can be laid down with respect to the petitioner. Further according to him, 1976 Regulation having been framed under-Section 79 (C) aforesaid, and no power having been delegated to the chairman of the Board by the said regulation, the Chairman had no jurisdiction to suspend the petitioner. So far as the unreported decision given by a Division Bench of this court in the case of Ajoy Kumar prasad (supra) is concerned, it was submitted that as he was guided by the Standing Order, the said decision may be correct, so far as Ajoy kumar Prasad is concerned, but cannot be made applicable in the case of the petitioner. 13. As stated above, the counsel for the Board reiterated his argument. According to him the power is vested with the Chairman of the board, both vide notification No.109 dated 6th of September, 1992 (Annexure-B-4) as well as by Standing order No.642, dated 29th of July, 1983. He placed reliance on the decision given by a Division Bench of this Court in the case of Ajoy kumar Prasad (supra ). 14. According to him the power is vested with the Chairman of the board, both vide notification No.109 dated 6th of September, 1992 (Annexure-B-4) as well as by Standing order No.642, dated 29th of July, 1983. He placed reliance on the decision given by a Division Bench of this Court in the case of Ajoy kumar Prasad (supra ). 14. Admittedly, the impugned order of suspension, as contained in annexure-1 cannot be construed to be an order issued by the respondent-Board. The counsel for the board has also accepted that this order has been issued in fact by the order of the Chairman of the Board. Further, admittedly the same (Annexure-1) has been approved by the full Board vide its meeting dated 14th of September, 1995. In tis background, it is to be tested as to whether the Chairman of the Board has jurisdiction to suspend an officer of the rank of General Manager-cum-Chief Engineer or not. So far as the notification No.109 dated 16th of September, 1992 (Annexure B-4) is concerned, admittedly the same has been issued in terms with Sec.79 (K) of the electricity (Supply) Act, 1948. In this background, whatever power that has been delegated to the Chairman by the said notification can be construed to be such power as can be exercised under Sec.79 (K) of the electricity (Supply) Act, 1948. As section 79 (K) of the said Act does , not stipulate anything relating to condition of service and/or suspension, it cannot be accepted that the chairman of the Board has been clothed with the power to suspend its employee, like the petitioner by virtue of the aforesaid notification dated 16th of September, 1992 (Annexure-B-4 ). In this view, the contention of the petitioner is accepted to that extent and the submission made by the counsel for the Board is rejected. 15. So far as the Standing order No.642 dated 29th of July, 1983 is concerned, according to me, the submissions made by the counsel for the petitioner is incorrect. It will be evident from paragraph 4 of the standing Order No.642, dated 29th of July, 1983 that the Rule 49-A of the Civil Services (Classification, control and Appeal) Rules, 1930, has been adopted. It will be evident from paragraph 4 of the standing Order No.642, dated 29th of July, 1983 that the Rule 49-A of the Civil Services (Classification, control and Appeal) Rules, 1930, has been adopted. Power has been vested not only with the appointing authority and/or to the Board but also to the Chairman of the Board to suspend any employee of the board even in contemplation of a departmental proceeding. It will be further evident from paragraph-6 of the said Standing Order No.642 dated 9th of July, 1983, that the said standing order has been issued under the provisions of Sec.79 (C) of the Electricity (Supply) Act, 1948 . From the plain reading of the aforesaid Standing Order No.642 dated 29th of July, 1983 it is manifest and clear that the said standing Order cannot be construed to be an standing order issued under the Industrial Disputes Act, 1947 , but is a service Regulation framed by the Board in terms with Sec.79 (C) of the Electricity (Supply) Act, 1948. It has been accepted by the counsel for the petitioner that the petitioner is guided by the Service regulation of 1976, framed under section 79 (C) aforesaid. Such being the position, if 1976 Service Regulation is silent in the matter of suspension in contemplation of a departmental proceeding, it is always open to the Board to supplement the same by issuing supplementary Service Regulation under Sec.79 (C)of the said Act, as done by Standing order No.642 dated 29th of July, 1983. This fact has already been taken into consideration by a division Bench of this Court in the case of Ajoy Kumar Prasad (supra ). In the said decision this Court further held that Rule 96 of the Bihar service Code having been adopted by the Board, there being specific rule, on suspension the Boards employees are entitled for only subsistence allowance and not the full salary. In the said decision this Court also took into note that when the regulation was framed on 29th of July, 1983 there was no provision to notify the same in the Gazette, which provision was framed subsequently in the year 1984 and thereby upheld the validity of regulation framed vide standing Order dated 29th July, 1983. 16. In the said decision this Court also took into note that when the regulation was framed on 29th of July, 1983 there was no provision to notify the same in the Gazette, which provision was framed subsequently in the year 1984 and thereby upheld the validity of regulation framed vide standing Order dated 29th July, 1983. 16. For the reasons stated above, I hold that the Chairman of the Board has got jurisdiction to suspend an employee, like the petitioner, in contemplation of a departmental proceeding and for such suspension even no approval is to be taken from the Board. The impugned order of suspension, dated 22nd of august, 1995 (Annexure-1) having been issued by the order of the chairman of the Board, I find no illegality in the said order. 17. Accordingly, there being no merit in the writ application, I dismiss the same. Petition dismissed.