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Madhya Pradesh High Court · body

2010 DIGILAW 1068 (MP)

Vikram Patel v. MPSEB

2010-10-21

ALOK ARADHE, S.R.ALAM

body2010
ORDER 1. This intra-Court appeal arises from the order dated 16.8.2010 passed by the learned Single Judge whereby the writ petition preferred by the appellant has been dismissed. 2. Facts necessary for disposal of the instant appeal briefly stated, are that the appellant is employed as Paricharak Grade II (line) with respondent No.2, namely, M.P. Poorva Kshetra Vidyut Vitran Company Ltd. The appellant vide order dated 15.7.2010 was placed under suspension on the ground that in view of the order dated 30.6.2010 passed by the Judicial Magistrate First Class, Katni in Criminal Cases No. 1364/2004, 1365/2004 and 1366/2004 the appellant was taken into custody on 30.6.2010 and remained in custody till 3.7.2010. The appellant in the aforesaid criminal cases was sentenced to undergo Rigorous Imprisonment of one year each with fine of Rs. 8 lacs, 1.5 lacs and 2 lacs, respectively. 3. The appellant challenged the validity of the aforesaid order before learned Single Judge in the writ petition. Learned Single Judge vide order dated 16.8.2010 dismissed the writ petition preferred by the appellant on the ground that the appellant failed to substantiate the plea that the provisions of Madhya Pradesh Industrial Employment (Standing Order) Rules, 1963 [in short 'the (Standing Orders) Rules, 1963'] are applicable to the case of the appellant. 4. Learned counsel for the appellant submitted that under Order 12 of the (Standing Orders) Rules, 1963 suspension is prescribed as a punishment for major misconduct and the same cannot be inflicted without holding an enquiry. It has further been submitted that in view of the provisions of the Standing Order 12 (3) (b) (iii) the appellant could not have been placed under suspension for a period of more than four days. It is also argued that in view of the provision of section 2 (2) of the M.P. Industrial Employment (Standing Orders) Act, 1961, (hereinafter referred to as 'the 1961 Act') since the State Government has not notified the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 in respect of employees of the erstwhile M.P. Electricity Board, therefore, the provisions of the 1961 Act and the Rules made there under shall apply to the case of the petitioner. In support of his submission, learned counsel for the appellant has placed reliance on the decision of the Supreme Court in M.P. Vidyut Karmachari Sangh v. M.P. Electricity Board, 2005 (2) JLJ 117 = AIR 2004 SC 2974 and a Division Bench decision of this Court in M. P. Electricity Board and another v. Rameshwar Maheshwari, 2010 MPLSR 259 (DB). 5. On the other hand, Shri A.P. Shroti, learned counsel for the respondents has submitted that in exercise of power conferred under section 79 (c) of the Electricity (Supply) Act, 1948 by a Notification dated 26.3.1970, the erstwhile M.P. Electricity Board had adopted the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. It has further been submitted that the appellant has not been suspended as a measure of punishment for misconduct. Learned counsel further contended that the provisions of the 1961 Act and the Rules made there under as well as M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 would apply to the employees of respondent No.2. However, in case of inconsistency between the 1961 Act and M.P. Civil Services (Classification, Control and Appeal) Rules 1966, the provisions of the 1961 Act and the Rules would prevail. It was further contended that there is no provision either in the aforesaid Act or in Rules which provides that an employee cannot be suspended if he is detained in custody for more than 48 hours. It is also contended that Rule 9 (2) (b) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 would apply to the case of the appellant and in exercise of aforesaid power the appellant ' was placed under suspension. 6. We have considered the submissions made on both sides. 7. The M.P. Industrial Employment (Standing Orders) Act, 1961 is an Act to provide for rules defining with sufficient precision in certain matters the conditions of employment of employees in undertakings in the State of Madhya Pradesh. Section 2 of the Act deals with the application of the Act, Section 2 (2), which is relevant for the purpose of adjudication of the controversy involved in the instant appeal, reads as under :- "2. Section 2 of the Act deals with the application of the Act, Section 2 (2), which is relevant for the purpose of adjudication of the controversy involved in the instant appeal, reads as under :- "2. Application of the Act-- (2) Nothing in this Act shall apply to the employees in an undertaking to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Services Regulations or any other rules or regulations that may be notified in this behalf of the State Government in the Official Gazette apply." 8. In exercise of power conferred under section 79 (c) of the Electricity (Supply) Act, 1948, the erstwhile M.P. Electricity Board issued Notification dated 26.3.1970 by which the provisions of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 have been adopted by the erstwhile M.P. Electricity Board. As has been held by the Supreme Court in M.P. Vidyut Karmachari Singh (supra), the 1961 Act is a special law whereas the regulations framed by the Board under section 79 (c) are general provisions. In view of aforesaid enunciation of law by Supreme Court, we have no difficulty in holding that M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 are general provisions and the provisions of the Standing Orders Act, 1961 are special laws and in case of inconsistency the provisions of special law will prevail over the general law, i.e. M.P. Civil Services (Classification, Control and Appeal) Rules, 1966. 9. A conjoint reading of the provisions of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966, and the M.P. Industrial Employment (Standing Orders) Act, 1961 as well as Rules framed therein would disclose that there is no provision in the Act and the Standing Orders to the effect that an employee cannot be suspended if he is kept in custody for more than 48 hours. Thus, there is no inconsistency between the provisions of the general law, i.e., the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 and special laws, i.e., the M.P. Industrial Employment (Standing Orders) Act, 1961 as well as Rules framed therein and. therefore, both the provisions can co-exist, so far as matter pertaining to suspension of an employee on account of his detention in custody for a period of more than 48 hours is concerned. therefore, both the provisions can co-exist, so far as matter pertaining to suspension of an employee on account of his detention in custody for a period of more than 48 hours is concerned. So far as the contention of the learned counsel for the appellant that in the absence of any notification in the Official Gazette the provisions of the M.P. Industrial Employment (Standing Orders) Act. 1961 and the Standing Orders framed there under will apply is concerned, in this context we may refer to the observation made by the Supreme Court in Paragraph 34 in M.P Vidyut Karmachari Sangh Jain (supra), which reads as under :- ''The question need not detain us long in view of a 3-Judge Bench decision of this Court in Hari Shankar (supra). This Court therein in no uncertain terms held that the provisions of the Standing Order Act are special laws in regard to the matters enumerated in the Schedule and, thus the regulations made by the Electricity Board with respect to any of those matters are of no effect unless the regulations are either notified by the Government or certified by the certifying officers holding :- "18.............In regard to matters in respect of which regulations made by the Board have not been notified by the Governor or in respect of which no regulations have been made by the Board, the Industrial Employment (Standing Orders) Act shall continue to apply. In the present case, the regulation made by the Board with regard to age of superannuation having been duly notified by the Government, the regulations shall have effect notwithstanding the fact that it is a matter which could be the subject matter of Standing Orders under the Industrial Employment (Standing Orders) Act............." [See also: U.P State Electricity Board and another v. Labour Court (1), U.P Kanpur and another, (1984) 1 SCC 147 ], we do not find any infirmity in the said decisions of this Court and respectfully agree with the ratio laid down therein." 10. Thus, absence of notification in terms of section 2 (2) of the 1961 Act has no bearing on the controversy involved in the instant case. Thus, absence of notification in terms of section 2 (2) of the 1961 Act has no bearing on the controversy involved in the instant case. That apart, from the averments made in Paragraph 9 of the return it is clear that the appellant has been placed under suspension only under Rule 9 (2) (b) of the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966 as he was in custody for more than 48 hours i.e. for a period from 30.6.20 I 0 to 3.7.2010. The order of suspension has not been passed by way of any major penalty. So far as reliance placed by learned counsel for the appellant on Division Bench decisions of this Court in Rameshwar Maheshwari (supra), is concerned, the same is of no assistance to the appellant, as in the aforesaid case the Division Bench of this .Court relying on M.P. Vidyut Karmachari Sangh (supra), has held that the provisions of the 1961 Act and the standing orders framed therein would apply to the case of the employee who was a Junior Engineer. Accordingly, it was held that the application filed by the employee under section 31 (3) of the M.P. Industrial Employment (Standing Orders) Act, 1960 was maintainable. 11. For the aforementioned reasons, we do not find any merit in this appeal. The writ appeal, deserves to and is hereby dismissed.