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2014 DIGILAW 584 (PAT)

Anil Kumar v. Bihar State Electricity Board

2014-05-08

CHAKRADHARI SHARAN SINGH

body2014
ORDER : 1. The present writ application has been filed seeking quashing of the order dated 20.02.2012 by which the Joint Secretary of the Respondent-Bihar State Electricity Board in exercise of power under Regulation 12(II) of Bihar State Electricity Board Service Regulation, 1976 has terminated the petitioner’s service. The order of the Appellate Authority dated 21.06.2012 by which the petitioner’s appeal against the said order stood rejected is also under challenge in the present writ application. 2. From the impugned order, it appears that there were certain allegations against the petitioner of demanding graft and misappropriation of the revenue of the Board, made by certain consumers. The petitioner at the relevant point of time was on probation as Junior Electrical Engineer, Electric Supply Division, Madhubani. A secret enquiry was held by the Board in course of which the allegations against the petitioner were found to be prima facie proved. An explanation was thereafter sought from the petitioner vide letter dated 31.01.2012. The petitioner submitted his explanation denying the allegations and justifying his conduct. The Disciplinary Authority i.e. the Joint Secretary of the Board however, rejected the explanation and in exercise of power under Regulation 12(II) of the Regulations, terminated the services of the petitioner. The petitioner preferred appeal which was dismissed by the Appellate Authority as communicated to him by letter dated 21.06.2012. 3. Mr. Rakesh Kumar Samrendra, learned counsel appearing on behalf of the petitioner has contended that the order impugned dated 20.02.2012 cannot be said to be an order simpliciter terminating the service of a probationer in exercise of power under Regulation 12(II) of the Regulations. He submits that the order is apparently punitive and stigmatic in nature which could not have been passed without holding a regular departmental proceeding. In support of his submission, he has placed reliance upon a Supreme Court judgment reported in State Bank of India vs. Palak Modi & Another, (2013) 3 SCC 607 . 4. Learned counsel appearing on behalf of the Board has supported the impugned order and has contended that in view of the nature of allegations made against the petitioner, the Board was left with no other option than to terminate his services and according to him, no regular enquiry was required as the petitioner did not have any right to hold the post while on probation. He has also contend that the petitioner was given opportunity to explain his conduct and he has in fact not suffered any prejudice because of non-holding of a departmental proceeding. 5. On perusal of the impugned order of the Disciplinary Authority, it is evident that the order is punitive in nature and casts stigma. The petitioner by the impugned order has been held to be guilty of serious charges of corruption and misconduct. In my opinion, this order cannot be treated to be an order simpliciter terminating the probation of the petitioner in exercise of power under Regulation 12(II) of the Regulations. Mr. Samrendra, learned counsel for the petitioner has rightly placed reliance upon Supreme Court Judgment in case of State Bank of India vs. Palak Modi (Supra) to contend that punishment was the motive behind issuance of the impugned order. Paragraph 25 of the said judgment is being quoted herein-below for ready reference:- “25. The ratio of the abovenoted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of the competent authority cannot be castigated as punitive. However, if the allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.” 6. I am further of the view that since the order has been passed on the charge of corruption, such charge is required to be proved to its hilt. Merely seeking an explanation from the petitioner and passing the impugned order considering such explanation was not sufficient. Admittedly, a secret enquiry was held by the Board after receiving allegations against the petitioner but the petitioner was not given any opportunity to appear in the said enquiry at any level. 7. The impugned orders dated 20.02.2012 and dated 21.06.2012 are, therefore, not sustainable and are accordingly quashed. 8. Admittedly, a secret enquiry was held by the Board after receiving allegations against the petitioner but the petitioner was not given any opportunity to appear in the said enquiry at any level. 7. The impugned orders dated 20.02.2012 and dated 21.06.2012 are, therefore, not sustainable and are accordingly quashed. 8. Respondents are directed to reinstate the petitioner forthwith in service within a period of one month from the date of receipt/production of a copy of this order. The Respondents shall be at liberty to proceed against the petitioner for the allegations levelled against him in accordance with law. The Court observes that keeping in view the nature of allegations, a regular departmental enquiry would be must. As regards his claim for back wages, it is observed that the petitioner will be at liberty to apply before the Respondents for grant of back wages with an affidavit stating that he was not gainfully employed elsewhere during the period in question. If the petitioner applies with such affidavit before the authorities within one month from today, it is directed that his claim for back wages can be denied only on the satisfaction of the competent authority that the petitioner was gainfully employed elsewhere, during the period he remained out of service which must be based on cogent material. If there is no material available before the authorities to come to a conclusion that petitioner gainfully employed elsewhere, they will be required to pay the petitioner his entire back wages for the period in question within a period of six months from the date of receipt/production of a copy of this order.