Sh. Ashok Kumar Gupta vs Government Of Nct Of Delhi & Ors.
2015 Latest Caselaw 769 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   W.P.(C) No. 763/2015 & CM No. 1339/2015 (stay)

%                                                    28th January, 2015

SH. ASHOK KUMAR GUPTA                                ..... Petitioner

                          Through:       Mr. R.K. Gupta, Adv.


                          versus

GOVERNMENT OF NCT OF DELHI & ORS.                           ..... Respondents

                          Through:       Mr. Sanjeev Sabharwal, Adv. for R-
                                         1/GNCTD.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Article 226 of the Constitution

of India, the petitioner, who is presently an employee of respondent

no.2/BSES Yamuna Power Ltd. and who was the erstwhile employee of the

Delhi Vidut Board (DVB), impugns the issuing of the charge-sheet against

him dated 24.11.2014 by the employer/respondent nos. 2 and 3.

2. Law with respect to challenge to a charge-sheet is now well

settled and which is that a charge-sheet can only be challenged on the

ground of lack of jurisdiction of the authority in issuing the charge-sheet or

some such other fundamental ground. Issues of merits are to be heard and

decided in the disciplinary proceedings and not by this Court.

3. Learned counsel for the petitioner urges only one ground to

question the issuing of charge-sheet and which is that the charge-sheet has

been issued by respondent no.3 who is the General Manager of the

respondent no.2 and who is not a government employee being a private

employee, and since the Central Civil Services (Classification, Control &

Appeal) Rules, 1965 - CCS(CCA) Rules apply with respect to conduct of the

departmental proceedings which requires issuing of charge-sheet by the

government/government employee, it is argued that a private employee of a

private company thus cannot initiate departmental proceedings against the

petitioner.

4. The argument urged on behalf of the petitioner is without any

merit whatsoever because various persons including the petitioner who were

erstwhile employees of the DVB, on account of unbundling of the DVB,

these services were got transferred from the DVB to various private

DISCOMS, one such DISCOM being the respondent no.2. A tripartite

agreement dated 9.11.2000 was entered into between the Government of

NCT of Delhi, the DVB and the Employees' Association, whereby, the

service conditions of the employees of the DVB were not to be changed to

their detriment on the ground that they were in future to be the employees of

a private company and not the government company/DVB. As per the

tripartite agreement the status of the employees of the erstwhile DVB was to

remain the same as was when such employees were working with the DVB.

It is by virtue of the rights of the employees of the DVB continuing as per

the same status which existed when they were employed with the DVB,

hence departmental proceedings are initiated, continued and concluded

under the CCS(CCA) Rules which stand adopted by the private employer.

Adoption of rules necessarily has to be mutatis mutandis because no doubt

the enquiry under the CCS(CCA) Rules, when applied by the government is

to be conducted by the government departmental authorities/government

persons, however, the same cannot mean that merely because these

CCS(CCA) Rules are adopted by the respondent no.2 with respect to the

employees who were the erstwhile employees of the DVB against the

employees of respondent no.2 departmental proceedings can only be

commenced and conducted by a government employee and not a private

employee of the respondent no.2. If this argument of the counsel for the

petitioner is accepted, it would effectively mean that no departmental

proceedings at all can be commenced and carried on by the respondent no.2

against any of its employees who were the erstwhile employees of the DVB.

5. Petitioner cannot take up two conflicting positions at the same

time. Either the petitioner is an employee of a private company on a private

contract or he continues in the status of an employee of the DVB in terms of

the tripartite agreement and in which latter case he would be bound by the

CCS(CCA) Rules as adopted mutatis mutandis by the employer/respondent

no.2. The position is the latter in this case.

6. In view of the above, I do not find any merit in the argument

urged on behalf of the petitioner that since the respondent no.3 is a private

employee and not a government employee, in terms of CCS(CCA) Rules the

departmental proceedings initiated against the petitioner are without

jurisdiction.

7. Dismissed.

JANUARY 28, 2015                                  VALMIKI J. MEHTA, J
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