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Jharkhand High Court · body

2003 DIGILAW 635 (JHR)

Arun Kumar Trivedi v. State Of Jharkhand

2003-06-03

M.Y.EQBAL

body2003
ORDER M.Y. Eqbal, J. 1. In this writ application the petitioner has prayed for issuance of appropriate writ in the nature of certiorari for quashing the letter dated 25.9.2002 as contained in Annexure-17 to the writ petition issued under the signature of respondent No. 4 whereby the authority of the Jharkhand State Electricity Board declined to accept the joining/services of the petitioner in the Jharkhand State Electricity Board (in short JSEB). 2. Petitioners case is that he was appointed in the service of Bihar State Electricity Board (in short BSEB) and was working as Electrical Executive Engineer, After the creation of State of Jharkhand with effect from 15.11.2000 the JSEB was created and started functioning with effect from 10.1.2001. As soon as JSEB was created, the services of the petitioner was requisitioned by the State of Jharkhand for working as Technical Secretary to the Power Minister of the State of Jharkhand and the petitioner said to have started working with Power Minister with effect from 10.1.2001. It is stated that on the basis of agreement and understanding arrived at between the State of Jharkhand and State of Bihar, the services of the petitioner was sought to be returned to BSEB by the JSEB vide notification dated 19.7.2001. Thereafter by letter dated 22.10.2001 the Secretary, JSEB requested the Secretary, BSEB to place the services of the petitioner with JSEB irrespective of pendency of the disciplinary proceeding against him. The Government of Bihar through the Secretary, Energy Department vide letter-dated 8.2.2002 proposed to place the services of the petitioner in JSEB in exchange of Sri C.L. Prakash. Petitioners case is that the Government of Jharkhand agreed to the said proposal and the Government of Bihar vide letter-dated 1.8.2002 purported to hand-over and place the services of the petitioner to JSEB. It is contended by the petitioner that inspite of the approval and the consent given by the two Governments, the impugned letter-dated 5.8.2002 was issued rejecting placement of services of the petitioner in JSEB on the ground that a policy decision had been taken that JSEB will not accept the services of any such officer of BSEB who was facing departmental proceeding or was under suspension. 3. In the counter affidavit filed by JSEB, it is stated that the petitioner was Electrical Executive Engineer and before 14.8.2000 he was posted at Chapra in the erstwhile State of Bihar. 3. In the counter affidavit filed by JSEB, it is stated that the petitioner was Electrical Executive Engineer and before 14.8.2000 he was posted at Chapra in the erstwhile State of Bihar. From 14.8.2000 petitioner was absent from Electrical Supply Division, Chapra and he met energy Minister, Government of Jharkhand on 4.1.2001 much before the formation of JSEB and requested him for his posting at Ranchi. The Energy Minister, Government of Jharkhand sent Fax message dated 4.1.2001 to the Chairman, BSEB requesting therein to place the services of the petitioner to the Technical Wing, Department of Energy, Government of Jharkhand but no action was taken by the BSEB. A copy of the order-dated 4.1.2001 is annexed as Annexure-A to the counter affidavit. Further case of JSEB, is that without awaiting for order of transfer or order of deputation from the erstwhile BSEB and without being relieved from Electrical Supply Division, Chapra. Petitioner started working in Technical Cell of the Energy Department, Government of Jharkhand. It is contended that no order of placing of the services of the petitioner in Jharkhand and regularization of his services was issued. However, decision was taken by the JSEB to appoint the petitioner as Joint Secretary-cum-Director Public - Relation. The Secretary, BSEB vide letter-dated 30.3.2001 informed the Chairman, JSEB Ranchi that petitioner is willfully absenting from 14.8.2000 from his office at Chapra and accordingly he has been put under suspension vide office order dated 26.3.2001. It was further informed by the Secretary, BSEB that petitioner illegally and in unauthorized manner is absent from his office and he should be directed to report to Headquarters, Patna. A copy of the letter has been annexed as Annexure-E to the counter affidavit. The JSEB vide letter-dated 19.7.2001 decided that the petitioner who is in the service of BSEB and was appointed as Joint Secretary can be returned to BSEB. Pursuant to that a notification was issued on 19.7.2001. It is contended that JSEB had requested the Secretary, BSEB not to relieve any employee against whom departmental proceeding/enquiry is pending or who is under suspension. Consequently, the State of Bihar released the petitioner from suspension vide order dated 1.8.2002, but without prejudice to the departmental proceeding and placed the services of the petitioner to the JSEB. Petitioner was subsequently awarded punishment of censor and stoppage of three annual increments with cumulative effect vide resolution dated 27.11.2002. Consequently, the State of Bihar released the petitioner from suspension vide order dated 1.8.2002, but without prejudice to the departmental proceeding and placed the services of the petitioner to the JSEB. Petitioner was subsequently awarded punishment of censor and stoppage of three annual increments with cumulative effect vide resolution dated 27.11.2002. Thereafter vide letter-dated 1.8.2002, the Secretary, BSEB informed the Secretary JSEB that petitioner has been punished and now his joining can be accepted. A copy of the said letter dated 1.8.2002 is annexed as Annexure-9 to the counter affidavit. The case of the respondents therefore is that the JSEB rightly declined to accept the services of the petitioner in JSEB in accordance with the provisions of Bihar Reorganization Act 2000. 4. A separate counter affidavit has been filed on behalf of the Union of India wherein it is stated that Ministry of Power vide order dated 22.3.2001 has made provisional arrangement regarding assets and liabilities between the two successor Boards viz. BSEB and JSEB. It was also stated that pending formal division of staff between the two Boards, the existing staff will continue to work on as is where is basis and transfers and posting will be frozen except with the consent of the two Governments. 5. The Bihar State Electricity Board also filed separate counter affidavit wherein it is stated that petitioner was working as Electrical Executive Engineer in the BSEB and at present his service has been transferred/allotted under the control of JSEB. Further case of the BSEB is that after formation of State of Jharkhand, office of the Ministry of Energy, Government of Jharkhand vide letter-dated 4.1.2001 addressed to the Chairman, BSEB recommended for posting of petitioner in the Technical Cell of the Energy Ministry of Jharkhand. Petitioner was however, asked to submit his explanation in the matter of his absence from Chapra and he was placed under suspension vide office order dated 26.3.2001. However, suspension order was finally revoked and his services were placed in JSEB and second show cause notice was asked from him and thereafter he was punished. 6. I have heard Mr. Ajit Kumar, learned counsel for the petitioner and Mr. V.P. Singh, learned counsel for the JSEB. No one appears on behalf of either BSEB or the Union of India. 7. Before deciding the issue, whether JSEB was justified in declining to accept the services of the petitioner in JSEB. 6. I have heard Mr. Ajit Kumar, learned counsel for the petitioner and Mr. V.P. Singh, learned counsel for the JSEB. No one appears on behalf of either BSEB or the Union of India. 7. Before deciding the issue, whether JSEB was justified in declining to accept the services of the petitioner in JSEB. I would like to first discuss the provisions of Bihar Reorganization Act 2000 (in short the said Act). The State of Bihar was reorganized in view of the Bihar Reorganization Act 2000 and the State of Jharkhand came into existence with effect from 15.11.2000. In view of the provisions contained in Section 62 of the said Act, the State of Jharkhand established separate Jharkhand State Electricity Board by Notification dated 10.1,2001. After the aforesaid Notification by another notification-dated 16.3.2001, Jharkhand, State Electricity Board was formed consisting of its Chairman and the three members. The Reorganization Act made provisions for internal arrangement of the employees and the distribution of assets and liabilities of the Board. For better appreciation, I would like to quote entire provisions of Section 62 of the said Act, which reads as under. "62. Provisions as to Bihar State Electricity Board, State Warehousing Corporation and State Road Transport Corporation.--(1) The following bodies Corporate constituted for the existing State of Bihar, namely :-- (a) the State Electricity Board constituted under the Electricity (Supply) Act, 1948; (b) the State Warehousing Corporation established under the Warehousing Corporations Act, 1962; (c) the State Road Transport Corporation established under the Road Transport Act, 1950; shall, on and from the appointed day, continue to function in those areas in respect of which they were functioning immediately before that day, subject to the provisions of this section and to such directions as may, from time-to- time, be issued by the Central Government. (2) Any directions issued by the Central Government under Sub-section (1) in respect of the board or the Corporation shall include a direction that the Act under which the Board or the Corporation was constituted shall, in its application to that Board of Corporation, have effect subject to such exceptions and modifications as the Central Government thinks fit. (3) The Board or the Corporation referred to in Sub-section (1) shall cease to function as from, and shall be deemed to be dissolved on such date as the Central Government may, by order, appoint; and upon such dissolution, its assets. (3) The Board or the Corporation referred to in Sub-section (1) shall cease to function as from, and shall be deemed to be dissolved on such date as the Central Government may, by order, appoint; and upon such dissolution, its assets. Rights and liabilities shall be apportioned between the successor Stated of Bihar and Jharkhand in such manner as may be agreed upon between them within one year of the dissolution of the Board or the Corporation, as the case, may be, or if no agreement is reached, in such manner as the Central Government may, by order, determine : Provided that, any liabilities of the said Board relating to the unpaid dues of the coal supplied to the Board by any public sector coal company shall be provisionally apportioned between the State Electricity Boards constituted respectively in the successor States of the existing State of Bihar or after the date appointed for the dissolution of the Board under this sub-section in such manner as may be agreed upon between the Governments of the successor States within one month of such dissolution or if no agreement is reached, in such manner as the Central Government, may, by order, determine subject to reconciliation and finalization of the liabilities which shall be completed within three months from the date of such dissolution by the mutual agreement between the successor States or failing such agreement by the direction of the Central Government : Provided further that, an interest at the rate of two percent, higher than the Cash Credit interest shall be paid on outstanding unpaid dues of the coal supplied to the Board by the public sector coal company till the liquidation of such dues by the concerned State Electricity Board constituted in the successor Stated on or after the date appointed for the dissolution of the Board under this sub-section. (4) Nothing in the preceding provisions of this section shall be construed as preventing the Government of the State of Bihar or, as the case may be, the Government of the State of Jharkhand from constituting, at any time on or after the appointed day, a State Electricity Board of a State Warehousing Corporation or a Road Transport Corporation for the State under the provisions of the Act relating to such Board of Corporation; and if such a Board or Corporation is to be constituted in either of the Stated before the dissolution of the Board or the Corporation referred to in Sub-section (1) :-- (a) provision may be made by order of the Central Government enabling the new Board or the new Corporation to take over from the existing Board or Corporation all or any of its undertakings assets, rights and liabilities in the State, and (b) upon the dissolution of the existing Board or Corporation :-- (i) any assets, rights and liabilities which would otherwise have passed to that State by or under the provisions of Sub-section (3) shall pass to the new Board or the new Corporation instead of to that State; (ii) any employee, who would otherwise have been transferred to or re- employed by the State under Sub-section (3) read with Clause (i) of Sub-section (5), shall be transferred to or re-employed by the new Board or the new Corporation instead of to or by that State. (5) An agreement entered Into between the successor States under Sub- section (3) and an order made by the Central Government under that Sub-section or under Clause (a) of Sub-section (4) may provide for the transfer or re- employment of any employee of the Board or the Corporation referred to in Sub- section (1) :-- (i) to or by the successor States, in the case of an agreement under Sub- section (4) or an order made under that sub-section; (ii) to or by the new Board or the new Corporation constituted under Sub- section (4) in the case of an order made under Clause (a) of that sub-section and, subject to the provisions of Section 65, also for the terms and conditions of service applicable to such employees after such transfer or re- employment. 8. 8. From bare perusal of the aforesaid provisions, it is manifest that Sub- section 1 of Section 62 expressly provides that the State Electricity Board constituted for the State of Bihar shall continue to function in those areas in respect of which they were functioning immediately before that day, subject to the provisions of this section and to such direction as may be issued by the Central Government. Sub-section 3 of Section 62 lays down the provisions with regard to dissolution of the Corporation or Boards and all the assets and liabilities between the successor State of Bihar and Jharkhand in such manner as may be agreed upon between the two States or in absence of any agreement in such manner as the Central Government may, by order determine. Sub-section 4 of Section 62 is relevant for the instant case. Sub-section 4 empowers the Government of the State of Bihar and the State of Jharkhand to constitute State Electricity Board for the State and provisions may be made by the order of the Central Governments to take over all the assets, rights and liabilities of the existing Board, It further provides that by an agreement referred to hereinabove between the employees of two States, transfer or the re-employment of the employees of the Board subject to the provisions of Section 65 of the said Act. 9. The Central Government in exercise of power conferred upon it by Sub- section 4 of Section 62 of the said Act made certain provisions by issuing order dated 22.3.2001, copy of the said order of the Government of India, Ministry of Power has been annexed as Annexure-6 to the writ petition. It deals with rights and liabilities as also the services of the employees of the Board. Relevant portion of the order which deals with the employees reads as under : "Employees : Employees and the vacant post of the existing Board shall be allocated in the ratio of consumption of power between the State Electricity Board of Jharkhand and Bihar. As agreed by the two States in the meeting dated 5.3.2001 committee of five members will be constituted within 30 days to examine the issues concerning division of staff and vacant posts on the basis of ratio decided above. Two members each of this committee will be nominated by the two States. As agreed by the two States in the meeting dated 5.3.2001 committee of five members will be constituted within 30 days to examine the issues concerning division of staff and vacant posts on the basis of ratio decided above. Two members each of this committee will be nominated by the two States. The Chairman of the Committee will be appointed by consensus between the two, failing which by decision of the Government of India the Committee would give its report within 45 days. It is also ordered that pending the formal division of Staff between the two Boards, the existing staff will continue to work on as it where is basis and transfers and postings will be frozen except with the consent of the two Governments." 10. Admitted facts which emerge from the affidavits filed by the parties are that before the creation of the State of Jharkhand, petitioner was posted as Electricity Executive Engineer at Chapra in the erstwhile State of Bihar. Petitioner without waiting for order of transfer or order of deputation from the erstwhile BSEB and without being relieved from Electric Supply Division, Chapra, he started working in Energy Department, Government of Bihar. Consequently, for willful absent duty at Chapra, he was punished vide Officer Order dated 26.3.2001 and a departmental proceeding was initiated. Pursuant to the decision taken by the JSEB the services of the petitioner as Joint Secretary was returned to the BSEB and the notification to that effect was issued on 19.7.2001. The departmental inquiry continued against the petitioner and in the meantime the State of Bihar relieved the petitioner from suspension vide order dated 1.8.2002 but the departmental proceeding continued and the same ended in awarding punishment of censor and stoppage of three annual increments with cumulative effect vide resolution dated 27.11.2002. From perusal of Anenxure-9 which is the copy of letter dated 1.8.2002, it appears that the Secretary BSEB informed the Secretary, JSBB, that the petitioner has been punished by awarding censor and stoppage of annual increments and now his joining can be accepted, In view of all these facts, refusal of the JSEB to accept the service of the petitioner cannot be said to be illegal, arbitrary or mala fide. 11. 11. Besides the above, from bare reading of the provisions of Section 62 of the Bihar Re-organization Act, 2000 coupled with order/guidelines issued by the Central Government both the State of Bihar and the State of Jharkhand could not have issued such order or notification of transfer and posting of the petitioner in absence of a decision of the committee so constituted or concurrence of the Central Government. I, therefore, do not find any illegality in the impugned letter dated 25.9.2002 issued by the authority of the JSEB declining to accept joining/service of the petitioner in JSEB. 12. For the aforesaid reasons, there is no merit in this writ application, which is accordingly dismissed.