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Madhya Pradesh High Court · body

2002 DIGILAW 736 (MP)

M. P, Electricity Board v. Girish Kumar Tomar

2002-08-02

CHANDRESH BHUSHAN, R.B.DIXIT

body2002
ORDER Dixit, J. -- 1. Respondent herein and petitioner in W.P. No. 236/1997, was appointed as Asst. Grade III, in M.P. Electricity Board, (in short MPEB), on 7.7.1981 and he was also a Union Worker. A show cause notice was issued to him on 15.11.1995 calling upon him to reply about his absence from duty and was also suspended on 16.11.1995 and transferred from Gwalior without fixing his placement, on 29.1.1997. An Inter-Regional Cricket Tournament was arranged by the officers of MPEB and it was alleged that the respondent entered on the scene and abused organizers of the tournament and threatened them not to allow Chief Engineer to distribute the prize. On these allegations, the services of respondent were terminated vide order dated 3.2. 1997 (Annexure P-10), without holding any enquiry, against which, writ petition was filed before learned Single Judge. 2. The appellant MPEB, in return contended that the respondent petitioner had an alternative remedy by way of appeal against the order of termination and further, he could have moved to Labour Court, under M.P. Industrial Relations Act. On 28.6.1990, the petitioner had abused and threatened the office Superintendent and others. A charge-sheet (Annexure R-1) was issued to him, however, the enquiry could not be conducted because, none of the witnesses out of fear could come forward to give evidence. In the circumstances, respondent was reinstated on 22.2.1991 and on 24.8.1992, was posted at Hetampur in Distt. Morena. The respondent entered the office of Executive Engineer, Morena in drunken state and threatened him with dire consequences. He also abused Shri C.B. Singh (O&M), Morena and a first information report in that connection was also lodged and the criminal case is still pending. On 4.11.1995, respondent along-with his colleagues entered into the house of Gopal Tiwari, the then Addl. Chief Engineer, Gwalior and tried to abduct his son. He beat the orderly and also threatened to kill him. A first information report of this incident was also lodged and then he was placed under suspension. On 13.8.1996, respondent entered the office of Superintending Engineer (O&M), Morena, in a drunken state and abused Shri O.P. Gupta, Superintending Engineer (O&M) with dire consequences. A Panchnama was prepared with respect to the incident. A first information report of this incident was also lodged and then he was placed under suspension. On 13.8.1996, respondent entered the office of Superintending Engineer (O&M), Morena, in a drunken state and abused Shri O.P. Gupta, Superintending Engineer (O&M) with dire consequences. A Panchnama was prepared with respect to the incident. Looking to the totality of the facts and circumstances, it was found not practicable to hold Departmental Enquiry against him, as his work and conduct was also found against the interest of industry. 3. It was contended before learned Single Judge that the order of termination from services by the Executive Engineer is illegal as the employees of MPEB are governed by the regulations under section 79(c) of the Electricity (Supply) Act, 1948 and under Clause l3B of MPEB (General) Service Regulations, 1952, (hereinafter would be referred as Regulations), and section 79 of the Electricity (Supply) Act, no order of dismissal or removal from service can be passed against the servants of Board unless an enquiry is held. Under Proviso of Regulation l3-B, power to dispense with holding of enquiry, has been given to the Board and in the circumstances, Executive Engineer had no power to dispense with the enquiry contemplated under section 79(c) of the Act. 4. Learned Single Judge, by the impugned order, came to the conclusion that it is only the Board, who had power to dispense with the enquiry and therefore, termination of the services of respondent without following procedure laid down in law and without affording any opportunity of hearing, is clearly a case of lack of jurisdiction on the part of the authority as well as the case of error apparent on the face of record. Where the order was passed without following procedure and without jurisdiction, it is not at all necessary to avail alternative remedy either by way of appeal or to approach any Industrial Court. Learned Single Judge, accordingly, allowed the petition and set-aside the impugned order. However, made it clear that the respondents may take action against petitioner-respondent in accordance with the procedure prescribed under the law. It was further made clear that the question of dispensation of normal enquiry may also be taken into consideration by the competent authority. The question of back-wages was also left to be decided by the authority concerned." 5. However, made it clear that the respondents may take action against petitioner-respondent in accordance with the procedure prescribed under the law. It was further made clear that the question of dispensation of normal enquiry may also be taken into consideration by the competent authority. The question of back-wages was also left to be decided by the authority concerned." 5. Learned counsel for the appellant argued before us that the powers to dispense with the enquiry are vested with the Executive Engineer (Stores), who passed the order of termination of service. It is not disputed that the regulations were framed under section 79(c) of the Electricity (Supply) Act. Regulation 13-B provides that no order of dismissal, removal or reduction shall be passed on any servant of the Board, unless, he has been informed in writing of the grounds, on which, it is proposed to take action and has been afforded an adequate opportunity of defending himself, the grounds on which, it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegation on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. Proviso to Regulations 13-B provides that this requirement may be waived by an order in writing: (i) If the facts on the basis of which action is to be taken have been established in a criminal Court or court martial or; (ii) When the Board is satisfied that for some reasons to be recorded in writing it is not seasonably practicable to follow this procedure; or (iii) Where in-spite of reasonable attempts to contact the person concerned he remains untraceable and it is not possible to communicate with him; and such order shall be final. 6. Learned counsel for the appellant submits that by order No. SECTT -11/54 dtd. 1.10.54, full powers were delegated under Regulation 13 of the Service Regulations in respect of the staff on the appointing authority which in the case of Asst. Grade 3, was admittedly Divisional Engineer, later on designated as Executive Engineer by order dtd. 23.3.1989, of the Board. 6. Learned counsel for the appellant submits that by order No. SECTT -11/54 dtd. 1.10.54, full powers were delegated under Regulation 13 of the Service Regulations in respect of the staff on the appointing authority which in the case of Asst. Grade 3, was admittedly Divisional Engineer, later on designated as Executive Engineer by order dtd. 23.3.1989, of the Board. Regulation 13-B, was only a Clause of Regulation 13 as is clear from the language of Regulation 13-A and is, therefore, the part of regulation 13 and is not an independent Regulation. The Executive Engineer, therefore, was the appointing authority of the respondent and was therefore, competent to remove respondent under Regulation 13-B as per the powers delegated to it by the Board itself, referred to herein above. He was, therefore, also empowered to exercise the powers of the Board under Regulation 13-B to dispense with the procedure of the regular enquiry. 7. It was argued by learned Sr. counsel for• the respondent that regulation 13-B itself delegated the power for dispensing with the enquiry to the Board only and therefore, the Board itself could not further delegate it's powers. Heavy reliance is placed on decisions of Apex Court in the case of A.K. Roy v. State of Punjab reported in (1986) 4 SCC 326 , Ganpati Singh Ii v. State of Ajmer reported in AIR 1955 SC 188 and Gwalior Distt. Co-operative Bank Ltd. v. Ramesh Chandra reported in AIR 1985 SC 337 . However, in our 'opinion, these cases cannot be applied as the regulations are framed by the Board itself and this power to frame regulations was granted to the Board under section 79(c) or (k) of Electricity (Supply) Act. Therefore, it cannot be said that the Board here, was a delegated authority and could not therefore, further sub-delegate its powers. In view of this position, the decisions relied upon by learned Sr. counsel for the respondent are clearly distinguishable on facts from the present case. 8. Therefore, it cannot be said that the Board here, was a delegated authority and could not therefore, further sub-delegate its powers. In view of this position, the decisions relied upon by learned Sr. counsel for the respondent are clearly distinguishable on facts from the present case. 8. The Hon. Supreme Court in the case of U.P. State Electricity Board v. Abdul Sakoor Hashmi and others etc., reported in AIR 1981 SC 1708 , repelled the contention that the Board could not delegate it's powers and observed that it would be virtually impossible for the Board to carryon it's functions if every time every minion under it were to be subjected to disciplinary action only by the Board which is the top body acting as a corporate entity. The provisions of the Act, cannot be interpreted into an impossible position of the Board. On the other hand a more viable construction is what we have indicated above. 9. Moreover, the termination of the respondent in this case was not under Clause 13-B of said Regulation but was under Rule 19 of M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, which were adopted by the Board in exercise of the powers conferred under section 79(c) of the Electricity (Supply) Act, read with notification dtd. 10.10.1963 and were applicable on its employees. Rule 19 provides that where the disciplinary authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold enquiry in the manner provided under these Rules, the disciplinary authority may consider the circumstances of the case and make such orders as it deems fit. The disciplinary authority, therefore, could very well dispense with holding of enquiry in the manner provided in the Rules. A perusal of Rule 19, clearly indicates that what Board has reserved for itself was only the power to dispense with the enquiry in case where the interest and security of the staff was involved and not for other cases where it was not reasonably practicable to hold an enquiry, which was left to the disciplinary authority. In the circumstances, in our opinion, there is not inconsistency between. this provision and regulation 13-B. 10. Lastly, learned Sr. In the circumstances, in our opinion, there is not inconsistency between. this provision and regulation 13-B. 10. Lastly, learned Sr. Counsel for the respondent vehemently argued that the requirement of regulation 13-B and also of Rule 19 -referred to herein above, was not properly complied with which requires that the authority who records reasons in writing as to "how, the holding of the enquiry is not reasonably practicable. Reliance is placed on the decisions of Apex Court in the case of Jaswant Singh v. State of Punjab reported in (1991) 1 SCC 362 , and Chief Security Officer and others v. Singasan Rabi Das reported in (1991) 1 SCC 729 . However, in our opinion, there can be no two opinions in so far as the principle laid down in these cases are concerned. The Executive Engineer while passing order of termination (Annexure P-1), had clearly observed that regular departmental enquiry is not possible in the facts and circumstances of the case. Even no enquiry could be proceeded with on the earlier occasions because of the threatening given by respondent and his colleagues. There is fear of reprisal among the witnesses. There is an atmosphere of violence and general indiscipline and insubordination and continuous retention of such a delinquent in the job is highly injuries to the industry and will earn further indiscipline and encourage of violence and disturbances. Such satisfaction of disciplinary authority was based on many previous incidents of violence and terror created by the delinquent which were also mentioned in detail by the authority concerned in his order of termination. Therefore, it cannot be said that the satisfaction of concerning authority was not based on objective facts or there was absence of any material justifying dispensation of enquiry. 11. It is not disputed that the appeal is also provided against such orders of termination by disciplinary authority and besides appeal, the respondent-petitioner could have taken recourse to the proceedings before the appropriate forum under MPIR Act, which he had failed to invoke. 12. Taking into consideration the facts and circumstances and the relevant provisions of law discussed hereinabove and the implications arising under the various decisions of the Apex Court referred to hereinabove, we are of the considered opinion that the conclusions of learned Single Judge, are vitiated in law and, therefore, the impugned order deserves to be set-aside. 12. Taking into consideration the facts and circumstances and the relevant provisions of law discussed hereinabove and the implications arising under the various decisions of the Apex Court referred to hereinabove, we are of the considered opinion that the conclusions of learned Single Judge, are vitiated in law and, therefore, the impugned order deserves to be set-aside. Consequently, the appeal succeeds and is allowed and the impugned order is hereby set-aside.