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2014 DIGILAW 561 (ORI)

Prasanna Kumar Pati v. Chief Executive Officer

2014-09-04

BISWANATH RATH

body2014
Judgment Biswanath Rath, J. This writ petition has been filed seeking quashment of the order of dismissal dated 12.12.2011 vide Annexure-7 further seeking a direction to the opposite party no.2 to give an opportunity of personal hearing before passing final order as against show-cause notice dated 22.08.2011 imposing major penalty. 2. The facts of the case in the writ petition as borne out from the narrations in the writ petition and the arguments advanced by learned counsel for the petitioner is that the petitioner while working as a line-man vide Departmental Proceeding No.9388 dated 28.12.2007 in Central Electricity Supply Utility of Odisha (for short ‘the CESU’) a departmental proceeding was initiated against him and he remained under suspension vide office order dated 20.11.2007. The petitioner was also served with supplementary charge-sheet No.1550 dated 14.03.2008. The article of charges as framed against the petitioner is as follows:- “The charges on Charge Sheet No.9388 dt.28.12.2007 was as follow: 1) Temporary misappropriation of CESU revenue. 2) Doubtful integrity 3) Willful action and causing loss to CESU revenue 4) Misconduct. The charges on Charge Sheet No.1550 dt.14.03.2008 was as follows: 1) Misappropriation of CESU Revenue. 2) Doubtful integrity 3) Willful deliberate action for causing loss to CESU Revenue 4) Tampering of Official records with malafide intention 5) Gross Misconduct” 3. The said departmental proceeding was concluded on submission of a report by the Enquiring Officer with a finding that the charges framed against the petitioner are established. Basing on report of the Enquiring Officer dated 12.08.2011 as appearing at Annexure-2, a show-cause notice dated 22.08.2011 as appearing at Annexure-1 was served on the petitioner to show-cause within 48 hours as to why the proposed major punishment of dismissal from service should not be awarded to him in consideration of the findings and recommendation of the Enquiring Officer, petitioner could not be able to file a reply within this limited period for which he requested for extension of time which was turned down. The disciplinary authority of the Central Electricity Supply Utility of Odisha passed final order of punishment by dismissing the petitioner from service with effect from 25.08.2011 under Annexure-4 for his proved misconduct falling within the meaning of Clause-15 (2)(i)(ii) and (iii) of the standing order of the utility applicable to the petitioner. The disciplinary authority of the Central Electricity Supply Utility of Odisha passed final order of punishment by dismissing the petitioner from service with effect from 25.08.2011 under Annexure-4 for his proved misconduct falling within the meaning of Clause-15 (2)(i)(ii) and (iii) of the standing order of the utility applicable to the petitioner. Petitioner challenged the order of dismissal vide Annexure-4 by moving a writ petition to this Court vide W.P.(C) No.7735 of 2011 on the premises of non-availability of principle of Natural Justice and this Court considering the peculiar facts involved in the case by order dated 13.09.2011 interfered in the order of punishment, set aside the same thereby further directed the petitioner to submit his reply by 21.09.2011 and further directing the disciplinary authority to conclude the proceeding afresh. Consequent upon above direction, petitioner submitted his detailed reply to the show-cause notice as appearing at Annexure-5. In the meanwhile, the disciplinary proceeding was taken up afresh treating the petitioner continuing under suspension. The disciplinary proceeding was concluded afresh vide Office Order No.9726 dated 12.12.2011 as appearing at Annexure-7 imposing the following punishment. “Sri Prasanna Kumar Pati Lineman-‘A’(U/S) is hereby dismissed from service with immediate effect.” 4. The petitioner by filing the present writ challenges the order of dismissal dated 12.12.2011 on the ground of gross violation of principles of natural justice as well as violation of fundamental rights as guaranteed under the Constitution of India. The petitioner further submitted that even though the order of dismissal from service is Appelable in terms of Clause-15 of the certified standing order of the Odisha State Electricity Board, Bhubaneswar, which has been followed by the employer, yet he has taken shelter of this Court by filing the present writ petition, as the order of dismissal was in gross violation of principle of natural justice and it involves violation of fundamental rights as guaranteed under Constitution of India. The petitioner also sought for setting aside of the impugned order on the ground that the enquiry is defective for the reason of none supply of documents referred to by the authority in the enquiry. 5. The petitioner also sought for setting aside of the impugned order on the ground that the enquiry is defective for the reason of none supply of documents referred to by the authority in the enquiry. 5. Per contra, the CESU authority in filing the detailed counter affidavit pleaded that the writ petition is not maintainable firstly, in absence of regular appeal as provided under the service books, secondly, on the ground that the opposite party authority is not a public authority accordingly not a State under Article-12 of the Constitution of India and no writ petition under Article 226 of the Constitution of India will lie against CESU. 6. From the arguments of both the sides, the following points immerge for consideration:- 7. The petitioner apart from filing the writ petition has also filed rejoinder affidavit and an additional affidavit to substantiate his case. Similarly, the opposite parties also filed an additional affidavit in response to the rejoinder and further affidavit on behalf of the petitioner. In the affidavit filed at the instance of the opposite parties, the opposite parties attempted to make out a case that CESU authority is absolutely a private body and since is not a State within the meaning of the Article 12 of the Constitution of India being managed by the Management Board constituted for the purposes by the commission in exercise of power under Section 22 of the Odisha Electricity Reforms Act, 1995, as such claimed to be outside the jurisdiction of the Court exercising the power under Article 226 of the Constitution of India. 8. In course of argument the parties apart from filing the written note reiterating their stand in the writ petition as well as in the counter and further affidavit filed by the respective parties, also relied on the decisions as follows:- 1. 109(2010) CLT 473. 2. 2011(2) Supreme 606 . 3. 2014(2) Supreme 38 9. The facts as borne out from the respective affidavits of the parties reveal that the Odisha Electricity Reforms Act, 1995, came into force dissolving Odisha State Electricity Board. After the aforesaid Act came into force, the State established Odisha Regulatory Commission. The Commission is a Statutory Authority and is a creature of the Odisha Electricity Reforms Act, 1995, which is emanated from The Electricity Act, 2003. After the aforesaid Act came into force, the State established Odisha Regulatory Commission. The Commission is a Statutory Authority and is a creature of the Odisha Electricity Reforms Act, 1995, which is emanated from The Electricity Act, 2003. The GRIDCO is a Government Company and purchase power from OPGC and in the matter of distribution of power, the GRIDCO in tern has set up, four distribution companies, namely, CESCO, NESCO, WESCO and SOUTHCO having control over four different parts of the State. At the time of issuance of license, the GRIDCO had 49% of stake share whereas the State had stake share at 51%. In CESCO, because of involvement in variety of disputes between the CESCO and GRIDCO, invoking, the powers under Section 22 of The Electricity Act, 2003, the Commission formulated a scheme named, Central Electricity Supply Utility, Odisha (Operation and Management, Scheme), 2006 for Operation and Management of the Utility. The scheme was enforced for two years and has been extended in the public interest till 07.09.2014. While the matter stood thus, the Commission also constituted a Management Committee called Power and Utility advisor committee for smooth operation of the CESU. 10. The opposite parties even though had not raised the question of maintainability of the writ petition, at the time of filing of counter but to give an improvement to their submission made earlier, by filing an affidavit on 08.07.2014 while challenging the maintainability of the writ petition against the opposite parties, contended that GRIDCO was vested with transmission, distribution, retail and supply functions of the erstwhile Odisha State Electricity Board. Subsequently, with effect from 01.04.1999 distribution of retail supply of electricity activities of GRIDCO were vested with four distribution companies, out of which Central Electricity Company, Odisha Ltd. (for short ‘the CESCO’), a company incorporated under the Companies Act, 1956, is one of them. In CESCO, GRIDCO a Government of Odisha Company had 100% stake CESCO was granted with a license by the Commission for distribution and retail supply of the electricity to its consumers vide office order dated 31.03.1999 passed in Case No.2 of 1999. In CESCO, GRIDCO a Government of Odisha Company had 100% stake CESCO was granted with a license by the Commission for distribution and retail supply of the electricity to its consumers vide office order dated 31.03.1999 passed in Case No.2 of 1999. In an attempt to initiate private participation in the public sector on 01.09.1957 share holding and the management of GRIDCO and CESCO vested with a private company named, AES, Odisha distribution Pvt. Ltd. On noticing serious mismanagement in AES failing into carrying out licensed conditions by order dated 26.02.2005, the Commission in exercise of powers under Section 19 of the Act, 2003 revoked license of CESCO on 01.04.2005, with effect from 18.04.2004 and on 18.04.2005 appointed Chief Executive Officer absolutely to manage and dispose the license activities of Central Zone Electricity distribution and supply utility in the meanwhile. An attempt was made for sale of the utility of CESCO under Section 20 of the Act, 2003 but, as said attempt could not be materialized, the Commission created a new utility, namely, Central Electricity Supply Utility and formulated Scheme known as Central Electricity Supply Utility of Odisha (operation and management) Scheme, 2006 for operation and management of CESU. On the above premises, learned counsel for the opposite parties contended that the CESU being a creature under the Scheme, is not amenable to the writ jurisdiction. The Commission also constituted a Management Board for day-to-day management of CESU. It is admitted by the opposite parties that the scheme formulated by the commission in exercise of its power under Section 22 of the Electricity Act, 2003 has been extended from time to time and it is valid till 07.09.2014, on the premises that the State Government has no administrative or financial control of CESU and further the CESU being managed by Management Committee, appointed by the Commission, the opposite parties reiterated its stand of non-maintainability of the writ. 11. On analysis of the submission of the respective parties, it is amply clear that the scheme, which gave birth to CESU is a creature of the Odisha Electricity Reforms Act, 1995, in terms of provisions contained in the Electricity Act, 2003. The CESU is not only bound to comply the conditions of license but, is also to function under the Central Electricity Supply Utility of Odisha (Operation and Management) Scheme, 2006 framed under Section 22 of The Electricity Act, 2003. The CESU is not only bound to comply the conditions of license but, is also to function under the Central Electricity Supply Utility of Odisha (Operation and Management) Scheme, 2006 framed under Section 22 of The Electricity Act, 2003. As has been clearly admitted by the opposite parties in Paragraph-6 of their affidavit dated 08.07.2014, even though State has no control over CESU, but the entire collection by way of Electricity dues on account of distribution of power supply to the general public has been merged in the CESU. The management committee of CESU is also constituted by the commission, a creature under the Odisha Electricity Reforms Act, 1995 under the provisions of the Electricity Act, 2003 and all the duties and responsibilities of the State merged with State. 12. Issue whether SOUTHCO, NESCO and WESCO body similar to that of CESU fall to the trap of public authority, has already visited this Court time and again. In deciding the question whether these companies treated as Public Authorities, this Court in decisions reported in 109(2010) CLT 473, 478 and 483 respectively, has come to hold that the NESCO, SOUTHCO and WESCO are to be treated as the public authorities. The decision of this Court reflected hereinabove was assailed by the similarly situated companies CESCO, WESCO as well as the NESCO in Supreme Court by filing SLP Nos.715, 776, 777 of 2010, which matters were withdrawn on the basis of submissions made by a senior counsel appearing on behalf of the above companies, who sought leave for withdrawal of all the cases, which permission was granted by Hon’ble Apex court vide order dated 31.01.2011. The question involved in the present case, is also (1) If the writ petition under Article 226 of the Constitution of India is maintained against CESU? (2) If there is violation of principle of natural justice in the inquiry against the petitioner at the instance of CESU? (3) In view of an appeal provision directed under the service book and in terms of Clause-14 of the certified standing order, Odisha State Electricity Board, Bhubaneswar, can an employee approach this Court under Article 226 of the Constitution of India without availing the parimateria similar to that of above matters, which has been answered by the Division Bench of this Court referred to supra. A similar issue also came up for consideration of this Court in W.P.(C) No.177178 of 2011 filed by NESCO in relation to Prevention of Corruption Act, 1988 particularly, on the question whether employees of the companies are public servants and they are coming under the purview of the provisions of P.C. Act. While answering the points as to whether the employees of the petitioners company NESCO are public servant this Court after careful consideration of the different provisions of the OERC Act P.C. Act, Indian Electricity Act and referring to various Constitution Bench decisions of the Supreme Court in the case of Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors., reported in (2002) 5 SCC 111 ; UJJam Bai v. State of Uttar Pradesh, reported in AIR 1962 S.C. 1621 ; Ajay Hasia v. Kalid Mujib Sehravardi reported in (1981) 1 SCC 722 and Sukhdev Singh & Ors. v. Bhagatram Sardar Singh Raghuvanshi, reported in (1975) 1 SCC 421 and also decisions of the Supreme Court of the United States in the case of Terry v. Adams, 273 US 536; and Nixon v. Condon, 266 US 73, came to the conclusion that the petitioners company though a private company is discharging public functions/duties, therefore, its employees also discharge the public duty and therefore, they all come under the definitions of ‘public servants’ within the meaning of Section2(c) of the P.C. Act and as the employees of the petitioner company are performing the public duties, they are public servant. Law is well settled that the employees of the companies with petitioners-company are discharging public functions/duties. The authorities in which such employees are employed ought to be treated as public authorities as they discharge a sovereign power of the State and runs with public money though not directly coming through State public exchequer but, collected from the customers buying electricity from such companies, may be in the domestic side or commercial side. Similar issue in connection with other three distribution companies also came up for consideration of this Court in W.P.(C) No.20134 of 2011, which matter was decided against the private company by a judgment of division Bench of this Court dated 19.08.2011. Mr. Similar issue in connection with other three distribution companies also came up for consideration of this Court in W.P.(C) No.20134 of 2011, which matter was decided against the private company by a judgment of division Bench of this Court dated 19.08.2011. Mr. B.K. Nayak, learned counsel for the opposite parties though claimed that CESU is not a State but during course of argument submitted that the service conditions of this establishment is governed under certified standing orders of the Orissa State Electricity Board created under provisions of Industrial Employment (Standing Orders) At, 1946, which I find to be a creature of the statute. Mr. Nayak, learned counsel in his written note of submission also accompanied a copy of said certified standing orders of OSEB perusal of which confirmed my above view. This apart in a decision reported in AIR 1976 S.C. 1857 (Rajasthan State Electricity Board, Jaipur v. Mohan Lal) a Constitution Bench of the Apex court in deciding whether Electricity Board of a particular State comes within the definition of State under Article 12 and is amenable under Article 226 of the Constitution of India held that such bodies are created for purpose of economic interest of the people and further held it to come within the fold of other authorities in Article 12 will thus amenable to the writ jurisdiction. 13. In the above premises while deciding the question no.1, it is held that the opposite party company, the CESU is the public authority and being a State under Article 12 of the Constitution of India, its actions are amenable to the writ jurisdiction of this Court under Article 226 of the Constitution of India. 14. Now, coming to decide the question no.2 as to whether there is violation of principle of natural justice, in conducting the disciplinary proceeding averments made in the writ petition nowhere indicate any allegations at the instance of the petitioner regarding violation of principle of natural Justice in the disciplinary proceeding at any stage. On being asked also, the petitioner failed to bring any documents to have been submitted during the course of the enquiry alleging non-supply of documents or not providing him any opportunity at any stage. Perusal of the show-cause at the instance of the petitioner also nowhere indicates such illegal action. It appears that the petitioner has brought its allegation only at the stage of argument. Perusal of the show-cause at the instance of the petitioner also nowhere indicates such illegal action. It appears that the petitioner has brought its allegation only at the stage of argument. In absence of any material, at the instance of the petitioner to establish that there has been any violation of compliance of principle of Natural Justice at any stage, this issue is answered negatively. Besides from the proceeding vide W.P.(C) No.2394 of 2011, it is apparent that petitioner at a particular stage alleged that he has not been granted extension of time to submit reply to show-cause and while allowing his above writ petition, this Court while setting aside the previous order of conviction allowed time for filing his reply to the show-cause and directed for fresh enquiry in the above premises. I have considered the citations at the instance of the petitioner vide 2011(2) Supreme 606 and also vide 2014(2) Supreme 38 which I find not applicable to the petitioner’s case. In the above view of the matter, I answer issue no.2 in the negative. 15. Now, coming to the question no.3, as to whether the writ petition is maintainable in absence of availing the provisions of appeal, facts of the case reveal that the case of the petitioner, who is the employee of CESU is governed under the certified standing order of Orissa State Electricity Board and as per Clause-14 of the said certified standing order, appeal lies against the order of dismissal. The petitioner has admitted in the writ petition that he is moving this writ petition, in absence of preferring any appeal. It is well settled principle of law as laid down by Privy Council in Nazir Ahmad v. King Emperor 1936 P.C. 253 and subsequently followed by the Apex court in Municipal Corporation of Delhi v. Jagdish Lal and another; AIR 1970 S.C. 7 ; Ram Charan Keshab Adke (Dead) by LRs v. Govind Joti Chavare and others, AIR 1975 S.C. 915 and Babu Verghese and Others v. Bar Council of Kerala and others, AIR 1999 S.C. 1281 prescribed that if the statute prescribes a thing to be done in a particular manner, the same should be done in the same manner or not at all. Considering the fact that the statute governing the petitioner’s service specifically provides provision for appeal against the dismissal before the appellate authority, the petitioner gets a chance of appreciation of the facts as well as evidence in the disciplinary proceeding by the appellate authority which liberty is not available in a writ decided in exercise of power under Article 226 of Constitution of India. The petitioner in the interest of justice should avail the opportunity of appeal instead of approaching this Court under Article 226 of the Constitution of India. Hence, I hold the petitioner’s moving straight way to this Court in a petition under Article 226 of the Constitution of India without availing the appeal provisions is bad. Issue no.3 is answered against the petitioner. 16. Under the circumstances, while holding the writ petition as maintainable against the CESU instead of interfering in the order of punishment of dismissal from service stands against the petitioner at this stage and in view of my finding in the previous para, I leave it open to the petitioner for his approaching the Appellate authority by way of appeal. I further direct the petitioner to file an appeal before the appellate authority within a period of three weeks from the date of the judgment and I further direct the appellate authority of the CESU to consider the appeal, if any, at the instance of the petitioner in accordance with law without entering into the aspect of delay as he was under a bona fide impression moving this Court in the present writ. The writ petition thus succeeds in part. However, there shall be no order as to costs.