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2018 DIGILAW 436 (ALL)

PREM PRAKASH MANIKTALIA v. STATE OF Uttar Pradesh

2018-02-19

DILIP B.BHOSALE, SUNEET KUMAR

body2018
JUDGMENT Hon’ble Suneet Kumar, J.—Heard Sri Manu Mishra, learned counsel appearing for the petitioner and Sri R.N. Pandey, learned counsel appearing for the first respondent. 2. Petitioner by the instant writ petition is assailing the appellate order dated 19 May 2012, affirming the order of punishment imposed on the petitioner, whereby, his pension has been reduced by 3%. The facts, inter se, parties are not in dispute. Petitioner was served charge-sheet to which petitioner replied, however, during pendency of the disciplinary proceedings, petitioner retired on attaining the age of superannuation on 28 February 2011 from the post of Executive Engineer. The sole ground pressed by learned counsel for the petitioner is that the impugned order imposing punishment upon the petitioner is unsustainable for the reason that under the rules and regulations applicable to the servants of the Uttar Pradesh Power Corporation Ltd. (Corporation) departmental enquiry cannot be continued after retirement of the employee. In other words, there is no rule conferring power upon the Corporation to continue the disciplinary proceedings against an employee after retirement. Petitioner in support of his submission has placed reliance on the decision rendered by the Division Bench in Keshav Deo Pandey v. Chairman & Managing Director, Uttar Pradesh Power Corporation Ltd. and others, 2012(11) ADJ 625 ; and Supreme Court order dated 1 March 2013, passed in Special Leave to Appeal (Civil No. 8568 of 2013) ‘Chairman & Managing Director, Uttar Pradesh Power Corporation Ltd. and others v. Keshav Deo Pandey’ affirming the decision of the Division Bench. Our attention was drawn by the learned counsel for the petitioner to the provisions of the Uttar Pradesh State Electricity Board (now Uttar Pradesh Power Corporation Ltd.) Officers and Employees (Conditions of Service) Regulations, 1975 (Regulations 1975), to urge that Regulations 1975, which is applicable upon the petitioner does not contain any provision to enable the respondent-Corporation to continue the disciplinary proceeding after retirement. 3. We do not find any merit in the submission of the learned counsel for the petitioner. The Uttar Pradesh State Electricity Board (Board) in exercise of power conferred by Sub-section (c) of Section 79 of the Electricity (Supply) Act 1948 (Act 1948), made Regulations 1975 governing the conditions of service of the servant of the Board. Regulation 2, for our purpose, reads thus: “2. The Uttar Pradesh State Electricity Board (Board) in exercise of power conferred by Sub-section (c) of Section 79 of the Electricity (Supply) Act 1948 (Act 1948), made Regulations 1975 governing the conditions of service of the servant of the Board. Regulation 2, for our purpose, reads thus: “2. All matters relating to conduct and discipline (including matters relating to punishment) and to termination, reversion and compulsory retirement of persons appointed: (a) to the Board, (b) ... (c) ... shall be regulated mutatis mutandis and subject to any other regulation for the time being inforce (including Regulation 1-A and above and 3, 4 and 6 below) by rules and orders for the time being inforce and applicable to corresponding categories of Government Servants under the rule making control of the Governor of Uttar Pradesh with the substitution of references in such rules to the Governor or the State Government by reference to the Board.” (emphasis supplied) 4. Regulations 1975 subsequently came to be amended in 1987 (w.e.f. 15 September, 1987) thereby incorporating additional punishments that could be imposed by the Board on the employee in disciplinary proceeding other than those provided under the Regulations 1975. The amendment is not relevant for the purpose of the present case. A bare perusal and on plain reading of Regulation 2, it is clear that all matters relating to the conduct and discipline, including matters relating to punishment of persons appointed under the Board shall be regulated mutatis mutandis, subject to the provisions of the Regulations for the time being inforce, by the rule/regulation applicable to corresponding categories of Government Servants under the rule making control of the Governor of Uttar Pradesh with the substitution of reference in such rules to the Governor or the State Government by reference to the Board. In other words, the rules and regulations as applicable to the Government servant insofar not governed by Regulations 1975, amended from time to time, shall be applicable to the servants/employees of the Board. 5. In Ashok Service Centre v. State of Orissa, AIR 1983 SC 394 ; the Supreme Court explained the phrase “mutatis mutandis” as under: “Earl Jowitt’s ‘The Dictionary of English Law (1959)’ defines ‘mutatis mutandis’ as ‘with the necessary changes in points of detail’. Black’s Law Dictionary (Revised 4th Edn. 5. In Ashok Service Centre v. State of Orissa, AIR 1983 SC 394 ; the Supreme Court explained the phrase “mutatis mutandis” as under: “Earl Jowitt’s ‘The Dictionary of English Law (1959)’ defines ‘mutatis mutandis’ as ‘with the necessary changes in points of detail’. Black’s Law Dictionary (Revised 4th Edn. 1968) defines ‘mutatis mutandis’ as ‘with the necessary changes in point of detail, meaning that matters or things are generally the same, but to be altered when necessary as to names, offices, and the like... ‘Extension of an ‘earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act...” Thus, the phrase “mutatis mutandis” implies that a provision contained in other part of the statute or other statutes would have application as it is with certain changes in points of detail. (See also: Rajasthan State Industrial Development and Investment Corporation v. Diamond and Gem Development Corporation Ltd., AIR 2013 SC 1241 ; 2013 AIR SCW 1244; (2013) 5 SCC 470 . 6. It is not in dispute that the petitioner is an employee of the Board/Corporation, further, learned counsel for the petitioner does not dispute that Article 351-A of Civil Service Regulations confers power upon the State Government to continue the disciplinary proceeding upon sanction of the Governor after retirement of the Government servant. Article 351-A of UP Civil Service Regulations reads thus: “351-A. The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement. Provided that (a) such departmental proceedings, if not instituted while the officer was on duty either before retirement or during re-employment (i) shall not be instituted with the sanction of the Governor; (ii) shall be in respect of event which took place not more than four years before the institution of such proceedings; and (iii) xxx xxx xxx (b) Judicial proceedings, if not instituted while the officer was on duty either before retirement or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a); and (c) xxx xxx xxx Explanation—For the purposes of this article (a) Departmental proceedings shall be deemed to have been instituted when the charges framed against the pensioner are issued to him, or, if the officer has been placed under suspension from an earlier date, on such date; and 7. Reading Article 351A alongwith Regulation 2 of Regulations 1975 would clearly mean that with the sanction of the Board, disciplinary proceeding can be continued against the employee of the Corporation even after he has retired from service. In similar facts, Division Bench in Keshav Deo Pandey allowed the writ petition quashing the disciplinary proceeding initiated against an employee of the Board in terms of Regulations 1975 for the reason that learned counsel appearing for the Board failed to point out that Article 351-A of Civil Service Regulation was adopted by the Board and no resolution of the Board showing specific authorization of the Board was placed before the Court to show that the departmental proceeding can continue and proceeded against the employee after retirement. Para 19 & 20 read thus: “19. The respondents have not placed on record the decision of the Board, by which Art.351A of the CSR was alleged to be adopted for the purposes of continuing the disciplinary enquiry, after retirement or to initiate disciplinary proceedings against the retired employee within four years of the incident, with the permission of the employer and with the sanction of the Board. xxx xxx xxx xxx xxx xxx The Uttar Pradesh State Electricity Board (Officers and Servants) (Conditions of Services) Regulation, 1975, were made after the issuance of the Circular of the Board dated February 19th, 1964. xxx xxx xxx xxx xxx xxx The Uttar Pradesh State Electricity Board (Officers and Servants) (Conditions of Services) Regulation, 1975, were made after the issuance of the Circular of the Board dated February 19th, 1964. These Regulations of 1975, provide for Rules regarding the authority competent to remove, dismiss, all matters on conduct and discipline (including matters relating to punishment, constitution of committee) to enquire into the case and the appeal and representation to the Chairman of the Board. They, however, do not provide for applicability of the Rules stated to have been adopted by the Board on 26th December, 1963, nor do they specifically authorised the Board to continue with the departmental proceedings after the employee attained the age of superannuation and retires. The Regulations of 1975, also do not mention of any adoption or incorporation of the Classifications, Control, and Appeal rules, Government Servant Conduct Rules etc. We thus find that with the enforcement of the Regulations of 1975, w.e.f. October 18th, 1975 all the rules relating to conditions of service including discipline and appeal were consolidated and thus only these resolutions of the Board relating to the conditions of service, which are incorporated in the Regulations of 1975, were made applicable to the employees. 20. The Regulations of 1975 in so far as it applies the Rules applicable to Government servants or the employees, who were originally employee of the State Government and after resignation in the services of the Board in pursuance to the State Government order dated July 1st, 1971, do not apply to the employees of the Board. This Rule gives powers to the Board to initiate or recommend disciplinary proceedings in respect of such State Government employee and does not give any powers to apply Rules applicable to the State Government to the employees of the Board.” (Emphasis supplied) 8. On specific query, learned counsel for the petitioner admits that Regulation 2 of Regulations 1975 was not brought to the notice of the Court in Keshav Deo Pandey, and neither does the judgment consider the implication of Regulation 2. On specific query, learned counsel for the petitioner admits that Regulation 2 of Regulations 1975 was not brought to the notice of the Court in Keshav Deo Pandey, and neither does the judgment consider the implication of Regulation 2. It is not in dispute that the Regulations 1975 was made by the Board in exercise of power conferred by the Act 1948, therefore, contention of the learned counsel for the petitioner that Board had not resolved adopting Article 351A of Civil Service Regulations and thereby making it applicable to the employees of the Board, is untenable. Regulation 2 clearly stipulates that “rules and order” for the time being enforce and applicable to corresponding categories of Government Servants shall be applicable to the servant appointed to the Board. In the backdrop of the provisions of Regulations 1975, in particular Regulation 2, which was not noticed in Keshav Deo Pandey, the decision would be of no help and assistance to the learned counsel for the petitioner, on the proposition of law in issue in the instant case, therefore, Keshav Deo Pandey cannot be read as a binding precedent being per incuriam. 9. It is well-settled that if there is an error of law occurring in a judgment, apparently committed by mistake or through inadvertence, such a judgment should not be misunderstood as declaration of law by the Court. Similarly, if the judgment is delivered in forgetfulness of some statutory provision, or a statement of law caused by inadvertence or conclusion that has been arrived at without any reasons, or rendered without analysing the relevant provisions of law or settled position of law, it cannot be treated as a binding precedent and, at the most, is to be considered as having been rendered per incuriam. 10. In Narmada Bachao Andolan v. State of Madhya Pradesh and another, AIR 2011 SC 1989 , the Supreme Court considered the Doctrine of “Per Incuriam” in paragraph 60, which reads thus: “PER INCURIAM - Doctrine: ’60. ‘Incuria’ literally means ‘carelessness’. In practice per incuriam is taken to mean per ignoratium. The Courts have developed this principle in relaxation of the rule of stare decisis. Thus, the ‘quotable in law’ is avoided and ignored if it is rendered, in ignorance of a statute or other binding authority. While dealing with observations made by a seven Judges-Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. The Courts have developed this principle in relaxation of the rule of stare decisis. Thus, the ‘quotable in law’ is avoided and ignored if it is rendered, in ignorance of a statute or other binding authority. While dealing with observations made by a seven Judges-Bench in India Cement Ltd. etc. etc. v. State of Tamil Nadu etc. etc., AIR 1990 SC 85 , the five Judges-Bench in State of West Bengal v. Kesoram Industries Ltd. and others, (2004) 10 SCC 201 : ( AIR 2005 SC 1646 : 2004 AIR SCW 5998), observed as under : ‘A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the Court had intended to say only that which is correct according to the settled position of law, and the apparent error should be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily read in the context,.........A statement caused by an apparent typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court.’ 11. Thus, ‘per incuriam’ are those decisions which are given in ignorance or forgetfulness of some statutory provision or authority binding on the Court concerned, or a statement of law caused by inadvertence or conclusions that have been arrived at without application of mind or proceeded without any reason so that in such a case some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. It is also well-settled, if intricacies of relevant provisions are either not noticed or brought to the notice of the Court or if the view is expressed without analysing the said provision or the settled position of law, such a view cannot be treated as binding precedent. 12. The next argument of the learned counsel for the petitioner is that dismissal of the special leave petition filed by the Corporation assailing the judgment and order of Keshav Deo Pandey tantamounts affirmation of the ratio decidendi. 12. The next argument of the learned counsel for the petitioner is that dismissal of the special leave petition filed by the Corporation assailing the judgment and order of Keshav Deo Pandey tantamounts affirmation of the ratio decidendi. A large number of judicial pronouncements made by this Court leave no manner of doubt that the dismissal of the special leave petition in limine does not mean that the reasoning of the judgment of the High Court against which the special leave petition had been filed before the Supreme Court stands affirmed or the judgment and order impugned merges with such order of the Supreme Court on dismissal of the petition. It simply means that Supreme Court did not consider the case worth examining for a reason, which may be other than merit of the case. An order rejecting the special leave petition at the threshold without detailed reasons, therefore, does not constitute any declaration of law or a binding precedent. (See: Indian Oil Corporation Ltd. v. State of Bihar and others, AIR 1986 SC 1780 ; Saurashtra Oil Mills Association, Gujarat v. State of Gujarat and another, AIR 2002 SC 1130 ; Union of India and others v. Jaipal Singh, AIR 2004 SC 1005 ; and Delhi Development Authority v. Bhola Nath Sharma (dead) by L.Rs. and others, AIR 2011 SC 428 ). It is clarified that no other ground was pressed by the learned counsel for the petitioner. For the reasons and law stated herein above, writ petition is dismissed. No cost.