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2006 DIGILAW 154 (GAU)

B. Pdah v. Meghalaya State Electricity Board

2006-02-16

B.S.REDDY, BROJENDRA PRASAD KATAKEY

body2006
JUDGMENT B.P. Katakey, J. 1. The Appellant writ Petitioner filed a writ petition being W.P. (C) No. 212 (SH) of 1999 challenging the order of suspension dated 7.7.1995 issued by the Chairman, Meghalaya State Electricity Board as well as tile departmental proceeding initiated by the said authority against him including the inquiry report submitted by the inquiry officer and the penalty imposed by the authority on the Petitioner on the basis of such proceeding. The said writ petition was dismissed by the learned Single Judge on 19.2.2004 and hence the present appeal. 2. The Appellant writ Petitioner who at the relevant point of time was serving as the Chief Engineer (Electrical) under the Meghalaya State Electricity Board (for short the MeSEB), was placed under suspension vide order dated 7.7.1995 issued by the Chairman of MeSEB and thereafter was issued with a charge sheet dated 25.9.1995 by the said authority asking him to show cause as to why the disciplinary action shall not be taken against him for causing considerable loss to the Board by giving undue advantage to the Jaintia Cements Limited at the cost of the Board, for manipulating deposit work cost estimate to provide undue benefit of about fifty lacs to the said firm by misusing his authority, for dishonesty, fraudulent and willful dereliction of duty resulting in considerable loss to the Board as well as deprivation of the legitimate benefits to the 35 villages covered by the scheme who would have received it from the developmental scheme and for giving undue advantage to the said company by misusing of his official authority in pursuance of the objective of his vested interest for the willful misutilization of REC loan by providing illegitimate and illegal benefit to the Jaintia Cements Limited, which should have legitimately gone to the 35 villages covered by the REC scheme and submission of false and fabricated quarterly physical achievement reports under his seal and signature to the REC regarding the number of villages covered, construction of 11 K.V. spur lines and also for providing power only and exclusively to the said firm and deliberately avoiding taking any steps to connect the villages covered by REC scheme so that the 33 K.V. line remain dedicated solely for meeting the power requirements of the said firm. The management upon receipt of the show cause and having not satisfied with the same decided to hold a disciplinary proceeding against him and accordingly inquiry officer was appointed. Meanwhile, the Petitioner Appellant was put under suspension vide order dated 7.7.2005 issued by the Chairman of MeSEB. The order of suspension as well as the issuance of charge sheet by the Chairman was challenged by the Appellant by filing a writ petition being C.R. No. 5477/95(CR-113 SH of 1996), which was though allowed by a Single Judge of this Court vide judgment and order dated 19.9.96, a division bench of this Court in Writ Appeal No. 516 of 1996 preferred by the MeSEB declared the decision of the learned Single Judge regarding the initiation of the departmental proceeding by issuing the charge sheet as non est and disposed of the same with the observation that the MeSEB may pass appropriate order in the light of the report submitted by the Inquiry Officer. Thereafter the inquiry officer submitted the inquiry report holding that the charge Nos. 5, 7, 10 against the Appellant were duly proved and the charge Nos. 1, 2, 6 and 8 were partially proved. The Chairman MeSEB, thereafter upon consideration of the records of the disciplinary proceeding, the representation made by the Appellant against inquiry report as well as the finding recorded by the inquiry officer in his report passed the order dated 31.8.99 imposing the punishment of recovery of the amount of leave encashment under regulation 10(v) of the ASEB (General Service) Regulations, 1960 as adopted by the MeSEB and permanently reducing the pension to 25% under Rule 8(1)(b) of the Meghalaya Civil Services (Pension) Rules as adopted by the board. 3. We have heard Mr. B.N. Dutta, learned Sr. counsel appearing on behalf of the Appellant and also Mr. K.S. Kynjing, learned Sr. counsel appearing on behalf of the Respondents, MeSEB. 4. Mr. B.N. Dutta, learned Sr. counsel for the Appellant challenging the judgment passed by the learned Single Judge has submitted that the Chairman, MeSEB has no power and authority either to place the Appellant under suspension or to issue any charge sheet and also to take disciplinary action against him as it is the Board, who is required to take such action. According to Mr. counsel for the Appellant challenging the judgment passed by the learned Single Judge has submitted that the Chairman, MeSEB has no power and authority either to place the Appellant under suspension or to issue any charge sheet and also to take disciplinary action against him as it is the Board, who is required to take such action. According to Mr. Dutta as the Board has not taken such decision of placing the Appellant under suspension for issuance charge sheet against him and also for imposing punishment, the order of suspension, issuance of charge sheet as well as the order of punishment issued by the Chairman are illegal being without any authority. The further submission of Mr. Dutta is that the proceeding initiated against the Appellant was conducted in violation of the principle of natural justice as the relevant documents sought for by the Appellant were not furnished to him, no hearing was given by the inquiry officer, who submitted the inquiry report and the recovery was ordered on the basis of the information collected by the authority after closer of disciplinary proceeding initiated against the Appellant. It has further been contended by the learned Sr. counsel that the departmental appeal preferred by the Appellant, which is required to be disposed of by the Board, has not been disposed of by the said competent authority but by a committee of Members constituted by the Board and therefore, the order rejecting the appeal is also bad in law. The learned Counsel in support of his contention has placed reliance on A.K. Karipak and Ors v. Union of India and Ors. reported in AIR 1970 SC 150 , The Management of D.T.U. v. Shri B.B.L. Hajelay and Anr.; reported in AIR 1972 SC 2452 , Mysore State Road Transport Corporation v. Mirja Kashim Ali Beg and Anr. reported in AIR 1977 SC 747 . 5. Mr. K.S. Kynjing, learned Sr. counsel appearing on behalf of the Respondents. reported in AIR 1970 SC 150 , The Management of D.T.U. v. Shri B.B.L. Hajelay and Anr.; reported in AIR 1972 SC 2452 , Mysore State Road Transport Corporation v. Mirja Kashim Ali Beg and Anr. reported in AIR 1977 SC 747 . 5. Mr. K.S. Kynjing, learned Sr. counsel appearing on behalf of the Respondents. MeSEB on the other hand has submitted that the Petitioner having earlier challenged the illegality and validity of the order of suspension as well as the charge sheet issued by the Chairman of MeSEB on the ground of not having the authority and the said writ petition though was initially allowed by a single bench of this Court having declared the decision of the learned Single Judge as non est by the writ appellate court, the Appellant can not challenging the illegality and validity of the order of suspension as well as issuance of charge sheet and also the disciplinary proceeding initiated on the basis of such charge sheet on the ground of being issued by the Chairman, MeSEB, in the present writ petition, on the ground of res judicata. Mr. K.S. Kynjing, learned Sr. counsel has further contended that in fact the board has by adopting resolution authorized the Chairman of the MeSEB to take all appropriate action against the Appellant and has in fact approved all the actions taken by the Chairman in its subsequent meeting and therefore, it is not that the Chairman has issued the order of suspension as well as the charge sheet and has taken the disciplinary action against the Appellant without the approval of the Board. It has further been submitted by the learned Counsel for the Respondents that the disciplinary proceeding, which was initiated against the Appellant was conducted by giving all reasonable opportunities to the Appellant wherein the Appellant participated and was in fact assisted by a defence assistant. The management witnesses were duly cross examined by the Appellant in the said proceeding and therefore it cannot be said that the proceeding was conducted in violation of principle of natural justice. Referring to the submission made by the learned Counsel for the Appellant that the relevant documents were not given to him, the learned Counsel for the Respondents has submitted that all relevant documents were given to him. Referring to the submission made by the learned Counsel for the Appellant that the relevant documents were not given to him, the learned Counsel for the Respondents has submitted that all relevant documents were given to him. It has further been contended that the Appellant in the writ petition has not stated what are the documents which were not given to him and how they are relevant. The Appellant has also not pleaded what prejudice has been caused to him in not furnishing the said documents therefore according to the learned Counsel the learned Single Judge has rightly dismissed the writ petition filed by the Petitioner. Countering the submission that some amount is sought to be recovered from the Appellant on the basis of the information collected by the authority after closer of the proceeding, the learned Counsel for the Respondents has submitted that no recovery has been made by the impugned order and the order for recovery of amount of leave encashment was passed by the authority as a measure of punishment imposed on the Appellant for the proved misconduct committed by him. 6. We have considered the submissions of the learned Counsel for the parties and also perused the pleadings including the judgment passed by the learned Single Judge. 7. The learned Single Judge upon appreciation of the materials available on records has recorded the finding that the Board has authorized the Chairman of the MeSEB to take all necessary action on the Appellant writ Petitioner by adopting resolution for that purpose and has also approved the action taken by the Chairman on the disciplinary proceeding initiated against him. The learned Single Judge has therefore found that though the charge sheet was issued and the disciplinary action was taken by the Chairman, the same was done by him as authorized by the Board. It was also been found by the learned Single Judge that there was no procedural impropriety or irregularity in conducting the disciplinary proceeding by the inquiry officer and all reasonable opportunities were given to the Appellant which includes the cross examination of the management witness, defence assistance and also the opportunity to examine witness in defence. It was also been found by the learned Single Judge that there was no procedural impropriety or irregularity in conducting the disciplinary proceeding by the inquiry officer and all reasonable opportunities were given to the Appellant which includes the cross examination of the management witness, defence assistance and also the opportunity to examine witness in defence. It has also been found by the learned Single Judge that though the Appellant Petitioner has, in the writ petition, raised the objection regarding the appointment of the inquiry officer on the ground of the being not a technical person, the Appellant writ Petitioner has agreed to the inquiry conducted by the said inquiry officer and has not assailed appointment of the inquiry officer before any forum. Regarding the point raised by the Appellant about disposal of the departmental appeal by a non-competent authority, the learned Single Judge upon perusal of the records found that the appellate authority started the hearing of the appeal on 7.10.2000 and after hearing the same also on subsequent dates finally disposed of the same on 20.10.2000 and in the said appeal the Appellant was personally heard. 8. The challenge made by the Appellant against the order of suspension dated 7.7.95 as well as issuance of the charge sheet by the Chairman on the ground of having the same issued without the approval of the Board, being the questions raised in the earlier writ proceeding being Civil Rule No. 5477 of 1995 (CR No. 113(SH) of 1996) which were rejected by the writ appellate court in writ appeal No. 516 of 1996 vide judgment and order dated 27.1.99, the Appellant cannot be allowed to raise the same questions in the present writ proceeding as well as the present appeal, the same being hit by the principles underlying the rule of res judicata founded on public policy, which principle prevents any party to the earlier proceeding to raise the same question again and again in the subsequent proceeding. Therefore, the present writ petition in so far as it relates to the challenge of order of suspension dated 7.7.95 as well as the charge sheet issued by the Chairman on the ground of not having authorized by the Board, is not maintainable, the said prayer having been rejected in the earlier writ proceeding. Therefore, the present writ petition in so far as it relates to the challenge of order of suspension dated 7.7.95 as well as the charge sheet issued by the Chairman on the ground of not having authorized by the Board, is not maintainable, the said prayer having been rejected in the earlier writ proceeding. Even on merit, it appears from the resolution adopted by the Board in its special meeting dated 8.6.95 that the board had authorised the Chairman to take necessary action strictly in accordance with the provision of law on the matter relating to the disciplinary action to be initiated against the Appellant. The Board also vide resolution dated 11.10.96 approved all the action taken by the Chairman and decided to complete disciplinary proceeding initiated against the Appellant expeditiously. Therefore, it cannot be said that the Board had not authorized the Chairman to take disciplinary action against the Appellant. Hence the contention of the learned Counsel for the Appellant in that regard cannot be accepted, which was rightly rejected by the learned Single Judge. 9. Another contention of the learned Counsel for the Appellant is that as the relevant documents were not furnished to him, he was denied the reasonable opportunity to defend himself in the disciplinary proceeding. The Appellant in the writ petition without specifying the documents which were not given to him, has made a vague statement that the relevant documents were not furnished to him though asked for. The Respondents in their affidavit-in-opposition has made a categorical statement regarding furnishing of all the relevant documents to the Appellant. It being the case of the Appellant that the relevant documents were not furnished to him he has to describe the documents which were not furnished to him and how they are relevant for the purpose of the disciplinary proceeding initiated against him. But the Appellant has failed to do so. Moreover, the Appellant has not stated anything how he has been prejudiced because of non-supply of such documents. Therefore, the said contention of the Appellant also cannot be accepted. 10. The next contention of the learned Counsel for the Appellant is that an amount of Rs. 82.42 lacs is sought to be recovered from the Appellant on the basis of the information collected by the authority after closer of the disciplinary proceeding initiated against him. Therefore, the said contention of the Appellant also cannot be accepted. 10. The next contention of the learned Counsel for the Appellant is that an amount of Rs. 82.42 lacs is sought to be recovered from the Appellant on the basis of the information collected by the authority after closer of the disciplinary proceeding initiated against him. Referring to the order of punishment passed by the Chairman of the MeSEB, the learned Counsel has submitted that order for recovery of the full amount of Leave encashment is nothing but the recovery of the amount towards the said amount of Rs. 82.42 lacs, which was ascertained subsequently. Upon going through the order of punishment passed on 31.8.99, it is evident that the authority has imposed the penalty of recovery of the amount of leave encashment as well as deduction of pension to 25% not for recovery of the amount of Rs. 82.42 lacs as contended by the Appellant but as a measure of punishment for the misconduct proved against him in the disciplinary proceeding. The contention of the learned Counsel for the Appellant that the said amount of Rs. 82.42 lacs is sought to be recovered, has therefore no basis at all. It is not in dispute that substantial loss has been caused to the MeSEB for the misconduct committed by the Appellant by giving undue benefit and showing undue favour to a particular firm and by diverting REC scheme thereby depriving villagers of 35 villages from electricity under the said scheme. 11. Referring to the non-disposal of the departmental appeal by the competent authority i.e. the board, as discussed above, the learned judge upon perusal of the records has found that the appellate authority started the hearing of the appeal on 7.10.2000, wherein the Appellant appeared and ultimately passed the final order on 20.10.2000 dismissing the appeal. The Appellant though was present in the proceeding before the said appellate authority never objected to hearing of the appeal by a committee consisting of three Members of the Board and the disposal of the same by it. Therefore, the said contention of the learned Counsel for the Appellant also cannot be accepted. 12. Mr. Dutta, learned Sr. counsel for the Appellant has relied upon the constitutional bench decision of the Apex Court in A.K. Kraipak (supra). Therefore, the said contention of the learned Counsel for the Appellant also cannot be accepted. 12. Mr. Dutta, learned Sr. counsel for the Appellant has relied upon the constitutional bench decision of the Apex Court in A.K. Kraipak (supra). In the said case the Apex Court has held that if the decision of the selection board is vitiated, the final recommendation made by the UPSC must also be held to have been vitiated as, such recommendation cannot be disassociated from the selection made by selection board which was the foundation of the recommendation by the UPSC. The Apex Court in the said case has also elaborately discussed about the rules of natural justice and when and to what extent they are to be followed. We do not find any relevance of the said decision in the present case in hand. 13. In Management of D.T.U (supra), the Apex Court has held that a protection which is given to an employee by the statute cannot be nullified by the rules and regulations authorized by the statute itself. In the present case in hand no such question arose for consideration by the court, therefore, said decision has also no relevance in so far as it relates to the present case. 14. The learned Counsel for the Appellant has also relied upon paragraph-14 in Mysore State Road Transport Corporation (supra) in support of his contention that when the Chairman, MeSEB was not a authorized by the Board no disciplinary action can be taken by him. We have already recorded our finding that the Board in fact authorized the Chairman to take disciplinary action against the Appellant and has in fact approved the action taken by the said authority. The Apex Court in the aforesaid case has held that the declaration to enforce a contract of personal service can be granted in the following three cases namely (i) appropriate cases of public servants who have been dismissed from service in contravention of Article 311 ; (ii) dismissed workers under industrial and labour law; (iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute. 15. In the instant case as held above the Board has authorized the Chairman to take disciplinary action and the disciplinary proceeding was conducted against the Appellant in conformity with the principles of natural justice by giving all reasonable opportunities to him. 15. In the instant case as held above the Board has authorized the Chairman to take disciplinary action and the disciplinary proceeding was conducted against the Appellant in conformity with the principles of natural justice by giving all reasonable opportunities to him. In fact the Appellant participated in the disciplinary proceeding along with his defence assistant and also cross-examined the witnesses. This Court has already recorded the finding that there was no procedural irregularity or impropriety in conducting the disciplinary proceeding. 16. No other points have been raised by the Appellant. 17. In view of the aforesaid discussion, we do not find any infirmity in the judgment passed by the learned Single Judge in dismissing the writ petition filed by the Appellant and hence the appeal filed by the Appellant has no merit and deserves to be dismissed, which we accordingly do. However, keeping in view the facts and circumstances of the case we do not make any order as to cost. Appeal dismissed