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Punjab High Court · body

2007 DIGILAW 13 (PNJ)

Bipan Talwar v. Punjab State Electricity Board

2007-01-09

S.S.NIJJAR, S.S.SARON

body2007
Judgment S.S.Nijjar, J. 1. The petitioner retired from the service of Punjab State Electricity Board (hereinafter referred to as "the Board") on 31.5.2003. After retirement, the petitioner started providing assistance to the delinquent employees of the respondent -Board, who were facing departmental proceedings. He took up this practice as a whole time vocation and profession. At the time of the filing of the writ petition, he had 20 enquiries pending. He claims that he is earning his livelihood from the profession of assisting the delinquent employees of the respondent-Board. During his service, the petitioner served as a Deputy Secretary (Enquiries) from the year 2000 to 2002 and as a Joint Secretary (Enquiries) from the year 2002 till his retirement on 31.5.2003. He, therefore, claims to have acquired sufficient knowledge and skill regarding departmental disciplinary matters. The petitioner is aggrieved by the Office Order No. 1/DI/M-15 dated 12.7.2006, by which Regulation 8(8) of the PSEB Employees Punishments & Appeal Regulations 1971 (hereinafter referred to as "1971 Regulations") has been amended as under: Employees involved in disciplinary proceedings may take the assistance, of any other Board employee, or retired Board employee to present the case on his behalf, subject to the following conditions: (i) The employees may not engaged a legal practitioner for the purpose unless the Presenting Officer appointed by the Punishing Authority is also a legal practitioner or the Punishing Authority having regard to the circumstances of the case, so permits. (ii) No Board Employee (Serving or Retiree) can take more than 3 cases at a time. At the time of appearance before the Inquiry Officer, the Board Employee (Serving or Retiree) should certify that he does not have more than 3 cases in hand at that time. (iii) A retired Board employee cannot assist a Board employee in disciplinary proceedings after the expiry of 3 years from the date of his retirement. The retired Board employee should produce before his Inquiry Officer, a declaration regarding the date of his retirement. The amendment has been made effective prospectively. Learned Counsel for the petitioner has vehemently argued that initially, the regulations had been framed by the respondent-Board under Section 79 of the Electricity Supply Act 1948 (hereinafter referred to as "the 1948 Act"). Therefore, the respondent-Board had no jurisdiction to amend the 1971 Regulations which had been made under Section 79 of the 1948 Act. Learned Counsel for the petitioner has vehemently argued that initially, the regulations had been framed by the respondent-Board under Section 79 of the Electricity Supply Act 1948 (hereinafter referred to as "the 1948 Act"). Therefore, the respondent-Board had no jurisdiction to amend the 1971 Regulations which had been made under Section 79 of the 1948 Act. Learned Counsel further argued that the amended Regulation is ultra vires Article 19 of the Constitution of India because it is a direct infringement of the right of the petitioner to undertake any particular profession, vocation and trade. According to the learned Counsel, the amendment places an unreasonable restriction on the right of the petitioner to profess a particular vocation and profession. Learned Counsel further argues that the amendment of the Regulation is discriminatory in nature, and therefore, violates Article 14 of the Constitution of India. No such restriction is placed by the Punjab Government in Punjab Civil Services (Punishment and Appeal) Rules 1970. Regulation 8(8) of the 1971 Regulations is a verbatim copy of Rule 8(8) of the Punjab Civil Services (Punishment and Appeal) Rules 1970. As a parting shot, learned Counsel has argued that the proposed amendment is ultra vires Article 14 of the Constitution of India as the employees of the respondent-Board have been deprived the equal protection of law and they have been debarred from choosing a person of their choice for providing them assistance in defending departmental disciplinary proceedings. 2. The respondent has filed a written statement. Learned Counsel for the respondent submitted that the aforesaid Regulation has been amended only to comply with the policy circular No. 14/35/78-2 PP/11743 dated 28.11.1979 issued by the Punjab Government. The amendment has been approved by the respondent-Board on 9.6.2006. Lea0rned counsel further submits that the aforesaid Regulation has been amended on a sound criteria to prevent unnecessary delay in the conduct of departmental enquiry. It is specifically pleaded by the respondent that the amendment would go a long way to ensure that no monopoly is created in a few persons for representing the employees in the departmental proceedings. The amendment has been made in public interest. Learned Counsel further brought to the notice of this Court Clause (a) of Section 172 of the Electricity Act, 2003 which has authorized the Board to function as the State Transmission Utility and Licensee under Section 14 of the 2003 Act. The amendment has been made in public interest. Learned Counsel further brought to the notice of this Court Clause (a) of Section 172 of the Electricity Act, 2003 which has authorized the Board to function as the State Transmission Utility and Licensee under Section 14 of the 2003 Act. Section 172(a) of the Electricity Act 2003 provides that initially, the State Electricity Board constituted under the repealed laws shall be deemed to be State Transmission Utility for a period of one year. This period can be extended by the State Government for another period of one year. The period has been duly extended by the Punjab Government. Learned Counsel further submitted that in any event the proposed amendment is not in any manner inconsistent with the provisions of the 2003 Act. Learned Counsel for the respondent further submitted that no employee has an absolute right of representation by somebody else. The right has been granted under the 1971 Regulations. The restriction placed on the number of enquiries to be conducted by a particular person is, in fact, in the interest of the employees. In support of the submission, learned Counsel for the respondent has relied on the following judgments of the Supreme Court: (1) Crescent Dyes and Chemicals Ltd. V/s. Ram Naresh Tripathi; (2) Bharat Petroleum Corporation Ltd. V/s. Maharashtra General Kamgar Union and Ors.; (3) Indian Overseas Bank and Ors. V/s. Indian Overseas Bank Officers Association and Anr. and Ors.; (4) The Management of National Seeds Corporation Ltd. V/s. K.V. Rama, Reddy Appeal (Civil) No. 4335 of 2006 decided on 29.9.2006. 3. We have considered the submissions made by the learned Counsel for the parties. We are of the considered opinion that no right of the petitioner has been infringed. In fact each and every submission made by the petitioner has been rejected specifically by the Supreme Court in the aforesaid judgments. In the case of Crescent Dyes and Chemicals Ltd. (supra), the short question for determination before the Supreme Court was as follows: 2. We are of the considered opinion that no right of the petitioner has been infringed. In fact each and every submission made by the petitioner has been rejected specifically by the Supreme Court in the aforesaid judgments. In the case of Crescent Dyes and Chemicals Ltd. (supra), the short question for determination before the Supreme Court was as follows: 2. The short question which falls for determination in this appeal is whether a delinquent is entitled to be represented by an Office-bearer of another Trade Union, who is not a member of either a recognized Union or non-recognised union functioning within the undertaking in which the delinquent is employed, notwithstanding the statutory limitation contained in the certified Standing Orders and Clause (ii) of Section 22 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.... While determining the aforesaid question, the Supreme Court observed as under: 12...From the above decisions of the English Courts, it seems clear to us that the right to be represented by a counsel or agent of ones own choice is not an absolute right and can be controlled, restricted or regulated by law, rules or regulations. However, if the charges is of a serious and complex nature, the delinquents request to be represented through a counsel or agent could be conceded. 13. The law in India also does not concede an absolute right of representation as an aspect of the right to be heard, one of the elements of principle of natural justice. It has been ruled by this Court in (i) Kalindi (N) India (P) Ltd. v. Subha Raman (s)" and (ii) Dunlop Rubber Co. v. Workmen that there is no right to representation as such unless the company by its Standing Orders recognises such a right. x x x x x x x x x 14. It is, therefore, clear from the above case-law that the right to be represented through counsel or agent can be restricted, controlled or regulated by statute, rules, regulations or Standing orders. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquents right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. A delinquent has no right to be represented through counsel or agent unless the law specifically confers such a right. The requirement of the rule of natural justice insofar as the delinquents right of hearing is concerned, cannot and does not extend to a right to be represented through counsel or agent. In the instant case, the delinquents right of representation was regulated by the Standing Orders which permitted a clerk or a workman working with him in the same department to represent him and this right stood expanded on Sections 21 and 22(ii) permitting representation through an officer, staff-member or a member of the Union, albeit on being authorised by the State Government. The object and purpose of such provisions is to ensure that the domestic enquiry is completed with despatch and is not prolonged endlessly. Secondly, when the person defending the delinquent is from the department or establishment in which the delinquent is working he would be well conversant with the working of that department and the relevant rules and would, therefore, be able to render satisfactory service to the delinquent. Thirdly, not only would the entire proceedings be completed quickly but also inexpensively. It is, therefore, not correct to contend that the Standing Order or Section 22(ii) of the Act conflicts with the principles of natural justice. In the case of Bharat Petroleum Corporation Ltd. (supra), the Supreme Court was considering the vital difference between the provisions contained in the Model Standing Orders which provided that in the enquiry, the workman shall be entitled to appear in person or to be represented by an office bearer of a trade union of which he is a member and the provisions of Draft Standing Orders which provided that if it is decided to hold an enquiry, the workman concerned will be given an opportunity to answer the charge/charges and permitted to be defended by a fellow workman of his choice, who must be an employee of the Corporation. The workman defending shall be given necessary time off for the conduct of the enquiry. After considering the entire matter, the Supreme Court observed as under: 38. The workman defending shall be given necessary time off for the conduct of the enquiry. After considering the entire matter, the Supreme Court observed as under: 38. The Model Standing Orders, no doubt, provided that a delinquent employee could be represented in the disciplinary proceedings through another employee who may not be the employee of the parent establishment to which the delinquent belongs and may be an employee elsewhere, though he may be a member of the trade union, but this, rule of representation has not been disturbed by the Certified standing orders, inasmuch as it still provides that the delinquent employee can be represented in the disciplinary proceedings through an employee. The only embargo is that the representative should be an employee of the parent establishment. The choice of the delinquent in selecting his representative has to be a co-employee of the same establishment in which the delinquent is employed. There appears to be some logic behind this as a co-employee would be fully aware of the conditions prevailing in the parent establishment, its Service Rules, including the Standing Orders, and would be in a better position, than an outsider, to assist the delinquent in the domestic proceedings for a fair and early disposal. The basic features of the Model Standing Orders are thus retained and the right of representation in the disciplinary proceedings through another employee is not altered, affected or taken away. The Standing Orders conform to all standards of reasonableness and fairness and, therefore, the appellate authority was fully justified in certifying the Draft Standing Orders as submitted by the appellant. 4. In the case of Indian Overseas Bank and Ors. (supra), the Banks had their own regulations for regulating the conduct, discipline and appeals pertaining to their officers and employees. Those Regulations contained a provision enabling an officer-employee to take the assistance of any other officer-employee to defend him in any disciplinary proceedings. This was sought to be amended by a circular order providing for the addition of a note to the relevant Regulation that the officer employee shall not take the assistance of any other employee who has two pending disciplinary cases on hand in which he has to give assistance. This was sought to be amended by a circular order providing for the addition of a note to the relevant Regulation that the officer employee shall not take the assistance of any other employee who has two pending disciplinary cases on hand in which he has to give assistance. The challenge to the said amendment based on the alleged violation of Article 14 of the Constitution of India, at the instance of the Association of the Officers of the respective Banks, came to be. upheld by the Division Bench of the Karnataka High Court. Aggrieved by the judgment of the High Court, the appellants-Bank came in appeal before the Supreme Court. After considering the entire matter, the Supreme Court observed as under: 6...Irrespective of the desirability or otherwise of giving the employee facing charges of misconduct in a disciplinary proceeding to ensure that his defence does not get debilitated due to inexperience or personal embarrassments, it cannot be claimed as a matter of right and that too as constituting an element of principle of natural justice to assert that a denial would vitiate the enquiry itself. 7...The High Court seems to have overlooked the realities of the fact situation specifically noticed by the Government of India of one defence officer holding brief of 50 pending matters, which necessarily called for such specific ceiling vis-a-vis the defence officer for the reason that the selection and choice of which is inevitably with the officer-employee concerned and that in the absence of such a stipulation, the management would suffer a serious handicap in observing such a rule or principle to so regulate to the surprise of the officer - employees both facing enquiries and those to be drafted for defence. So far as the management is concerned, it can always observe the same while considering the need for choosing a presenting officer in an individual case even in the absence of a stipulation therefor. So far as the management is concerned, it can always observe the same while considering the need for choosing a presenting officer in an individual case even in the absence of a stipulation therefor. The mere possibility or otherwise of any action which may result in differential standard or norm being adopted in a given case, cannot be assumed to provide sufficient ground or reason to undermine the right of a the management to make a regulation or standing order of the nature in question or militate against the reasonableness or justness of the said provision, whatever may be the scope available for ventilating otherwise a grievance in an individual case of any adoption of differential standards or norms to the detriment of the officer-employee concerned. Further, we are also of the view that a stipulation of the nature under consideration, apart from paving the way for expeditious culmination of the disciplinary proceedings, would equally go a long way to ensure that no monopoly is created in a chosen few for such purposes and that the services of the proposed defence officers are equally available in proper measure to the institutions which employ them in greater public interest.... In the case of The Management of National Seeds Corporation Ltd., after taking into consideration the aforesaid ratio of law in the aforesaid judgments, the Supreme Court observed as under: The law in this country does not concede an absolute right of representation to an employee in domestic enquiries as part of his right to be heard and that there is no right to representation by somebody else unless the rules or regulation and standing orders, if any, regulating the conduct of disciplinary proceedings specifically recognise such a right and provide for such representation.... 5. The aforesaid observations of the Supreme Court are fully applicable in the facts and the circumstances of the present case. We are of the considered opinion that no legal right of the petitioner has been infringed. 6. In view of the above, we find no merit in the writ petition and the same is hereby dismissed. No costs.