Anil Kumar Singh vs South Bihar Power Distribution ...
2021 Latest Caselaw 4926 Patna

       IN THE HIGH COURT OF JUDICATURE AT PATNA
              Civil Writ Jurisdiction Case No.17558 of 2018
   ======================================================

Anil Kumar Singh Son of Late Satya Narayan Singh, Ex-Junior Accounts Clerk-cum-Cashier, Electric Sub- Division, Bankipore, Patna-at present residing at Village- Danaganj, P.O. Dhobia Kalapur, P.S. Naubatpur, Town and District- Patna.

... ... Petitioner/s Versus

1. South Bihar Power Distribution Co. Ltd. through its Managing Director, Vidyut Bhwan, Bailey Road, Patna-800021

2. Chairman-cum-Managing Director of Bihar State Power (Holding) Co. Ltd., Vidyut Bhwan, Bailey Road, Patna-800021

3. General Manager (HR and Adm), South Bihar Power Distribution Co. Ltd. Vidyut Bhwan, Bailey Road, Patna-800021

4. Sri Suresh Kumar Sharma, Deputy General Manager (HR and Adm) South Bihar Power Distribution Co. Ltd., Vidyut Bhwan, Bailey Road, Patna-800021

5. Sri Sahadat Hussain, Land Acquisition-cum-Enquiry Officer, South Bihar Power Distribution Co. Ltd., Vidyut Bhwan, Bailey Road, Patna-800021

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Umesh Prasad Singh, Sr. Adv.

Mr. Abhimanyu Vatsa, Advocate

For the Respondent/s : Mr. Vinay Kirti Singh, Sr. Adv.

Mr. Ritesh Kumar, Adv.

Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

: Mr. Vijay Kumar Verma, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH CAV JUDGMENT Date : 08-10-2021

1. The present writ petition has been filed for

quashing the inquiry report dated 14.06.2017,

submitted by the Respondent No. 5, the order of

punishment dated 18.12.2017 passed by the

Deputy General Manager (HR & Adm.), South Bihar

Power Distribution company Ltd. (hereinafter

referred to as the SBPDCL) whereby and

whereunder the petitioner has been dismissed

from service and for further quashing the order

passed by the Respondent No. 2 i.e. the Chairman-

cum-Managing Director, Bihar State Power

(Holding) Company Ltd., Bihar, Patna, as

communicated to the petitioner vide letter dated

13.07.2018, issued by the Deputy General

Manager (HR & Adm.), SBPDCL, by which the

appeal preferred by the petitioner has been

dismissed.

2. The brief facts of the case are that the

petitioner was appointed on compassionate ground Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

on the post of unskilled Khalasi by the then

General Manage-cum-Chief Engineer, Area Board,

Bhagalpur and subsequently, he had appeared in

the departmental examination and being

successful, was appointed as Bill Clerk with effect

from 01.01.1982. Subsequently, the petitioner was

transferred to Patna and at the relevant time, was

functioning as a Bill Clerk at PESU under the

control of General Manager-cum-Chief Engineer,

PESU. It appears that on the basis of an internal

audit report, defalcation / misappropriation of

several lakhs of rupees had come to light and the

petitioner was also one of the accused persons,

having complicity in the matter, hence, he was

suspended by an order dated 25.6.2015, issued by

the then Deputy General Manager (HR & Adm.).

Thereafter, vide resolution dated 09.06.2016,

issued by the General Manager (HR & Adm.),

SBPDCL, it was resolved to initiate a departmental

proceeding against the petitioner and the Chief

Engineer, SBPDCL, Patna, was appointed as the

Inquiry Officer and a copy of the aforesaid Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

resolution dated 09.06.2016 was forwarded to the

petitioner along with the charge-sheet and other

details / documents. The petitioner had then

submitted a show cause reply before the Inquiry

Officer on 29.06.2016. After completion of the

departmental inquiry, the Inquiry Officer had

submitted his inquiry report on 14.6.2017 whereby

and whereunder all the charges leveled against the

petitioner were found to have been proved. The

Deputy General Manager (HR / Adm.), SBPDCL, had

then issued a second cause notice dated

21.9.2017, to which the petitioner had submitted

his reply in detail, however, vide resolution no.

2055 dated 18.12.2017, issued under the signature

of the Deputy General Manager (HR / Adm.),

SBPDCL, the petitioner was inflicted with the

punishment of dismissal from service. The

petitioner had then filed an appeal, however, the

same has stood dismissed by an order dated

02.06.2018 passed by the Chairman-cum-

Managing Director, Bihar State Power (Holding)

Company Ltd., Patna, as communicated to the Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

petitioner vide letter dated 13.07.2018.

3. The learned Senior Counsel for the petitioner,

Sri Umesh Prasad Singh, has raised a short issue

for consideration to the effect that the proceedings

in question are contrary to Rules 16 and 17 of the

Bihar Government Servants (Classification, Control

and Appeal) Rules, 2005 (herein after referred to as

the "Rules, 2005") inasmuch as though the

appointing authority of the petitioner is the

General Manager-cum-Chief Engineer, however,

firstly, the order of suspension dated 25.6.2015

has been passed, not by the disciplinary authority /

appointing authority, but by the Deputy General

Manager (HR & Adm.), SBPDCL. Similarly, the

charge-sheet has been issued vide resolution

dated 09.06.2016, not by the disciplinary authority

but by the General Manager (HR & Adm.), SBPDCL

and likewise the second show cause notice dated

21.9.2017 has also been issued by the Deputy

General Manager (HR / Adm.). It is submitted that

even the order of punishment dated 18.12.2017

has been passed by the Deputy General Manager Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

(HR / Adm.), SBPDCL, who is neither the appointing

authority nor the disciplinary authority of the

petitioner. Lastly, it is submitted that the appeal

filed by the petitioner has also been rejected by

the Chairman-cum-Managing Director, Bihar State

Power Holding Company Ltd., Patna, however,

there is no regulation or provision authorizing him

as the appellate authority, thus, it is submitted

that the entire disciplinary proceeding, conducted

as against the petitioner stands vitiated, right from

the stage of issuance of charge-sheet till the

passing of the order of punishment of dismissal of

the petitioner from his services as also upto

passing of the appellate order. In this regard, the

learned Senior Counsel for the petitioner has

referred to the judgments rendered by the Hon'ble

Apex Court, reported in (2014) 1 SCC 351 (Union

of India vs. B.V. Gopinath), (2018) 17 SCC 677

(State of Tamilnadu vs. Pramod Kumar, I.P.S.

and another), (2001) 1 SCC 182, (Kumaon

Mandal Vikas Nigam Ltd. vs. Girja Shankar

Pant and others) and AIR 1976 SC 789, (Hukam Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

Chand Shyam Lal vs. Union of India).

4. Per contra, the learned Senior Counsel for the

Respondent-Company, Sri Vinay Kirti Singh, has

submitted that though it is not disputed that the

Rules, 2005 are applicable in the present case and

in fact, in the earlier round of litigation, a

coordinate Bench of this Court, by a judgment

dated 18.08.2017 passed in CWJC No. 14196 of

2016, had though refrained from quashing the

order of suspension, but had directed the

respondent-Company to conclude the disciplinary

proceeding within a period of four months, failing

which the Respondent would consider the prayer of

the petitioner for revocation of his suspension.

5. The learned Senior Counsel for the

Respondent-Company has further submitted that

the petitioner was appointed as a daily wager with

effect from 17.12.1978, whereafter he was

appointed on the post of unskilled Khalasi by the

General Manager-cum-Chief Engineer in the

Bhagalpur area Board in the services of the Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

erstwhile Bihar State Electricity Board. The

petitioner had then passed the departmental

examination and was appointed as a Bill Clerk with

effect from 1.1.1982 at Bhagalpur and

subsequently, he was transferred to Patna where

he took charge as a Bill Clerk on 30.04.2010 and

by the order of Electrical Executive Engineer,

Electric Supply Division, Bankipore, he started

working as Revenue Cashier with effect from

15.07.2011. The learned Senior Counsel for the

Respondent-Company has also taken this Court

through the scheme of the Electricity Act, 2003

and the "Reorganization of BSEB and transfer of

personnel scheme", which deals with the transfer

of personnel and employees in transmission,

generation, distribution and other common

services. The learned Senior Counsel for the

Respondent-Company has also referred to the

resolution no. 05 - 04 passed by the Board of

Directors of SBPDCL in its 5th meeting held on

07.03.2013 whereby and whereunder the schedule

of delegation of power, as prepared by PFCCL and Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

approved by the Board of Directors of Bihar State

Power (Holding) Company Ltd., for North / South

Bihar Power Distribution Company Ltd., has been

adopted w.e.f. 22.02.2013.

It has been submitted that the power to

suspend and award major punishment to the

workmen of field cadre and officers in the rank of

JEE or equivalent has been delegated to the

concerned GM-cum-CE of the area / project, who is

the Disciplinary authority and the appellate

authority is the Managing Director. The learned

Senior Counsel has also referred to Annexure-B to

the rejoinder affidavit to the reply to the counter

affidavit, filed by the respondents, more

particularly Clause 1.10 thereof, which postulates

that the authority higher than the authority

competent to exercise power under this delegation

shall have power to exercise these powers even if

there is no specific delegation to that effect. The

learned Senior Counsel for the Respondent-

Company has also referred to the notification of

the Bihar State Power (Holding) Company Ltd. Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

dated 05.04.2014 to contend that the Board of

Directors of the Bihar State Power (Holding)

Company Ltd. in the meeting held on 25.03.2014

have resolved that in all such cases where decision

to inflict punishment has been taken by the

Managing Director of the Bihar State Power

(Holding) Company Ltd. or its subsidiaries, the

appellate authority shall be the Chairman of the

Bihar State Power (Holding) Company Ltd.

6. As far as the merits of the instant case is

concerned, the learned Senior Counsel for the

Respondent-Company has submitted that in the

present case, the DGM (HR & Adm.), vide office

order dated 25.06.2015 had communicated the

order of suspension passed by the Managing

Director of the Company to the petitioner and in

fact, the decision to initiate departmental

proceeding against the petitioner and others was

also taken by the Managing Director of the

Company. Moreover, the entire decision regarding

issuance of charge-sheet, initiation of

departmental proceeding, appointment of Inquiry Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

Officer and passing of the order of punishment of

dismissal, as against the petitioner herein, was

taken by the Managing Director, hence, there is no

illegality if the order of suspension, the order

initiating departmental proceeding and the order

inflicting punishment of dismissal upon the

petitioner has been communicated by the DGM

(HR & Adm.) or the GM (HR & Adm.).

7. It is also submitted by the learned Senior

Counsel for the Respondent-Company that during

the course of departmental inquiry, five witnesses

were examined in support of the charges leveled

against the petitioner and then, the Inquiry Officer,

after a detailed and a thorough inquiry, has come

to a conclusion that charge nos. 1, 2 and 3 have

been found to have been proved as against the

petitioner and there was temporary defalcation on

the part of the petitioner since he had failed to

deposit a sum of Rs. 43,48,296/- for about four

years, after having collected the same from the

consumers. It is also submitted that a bare perusal

of the various orders under challenge would show Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

that the same have merely been communicated by

the DGM (HR & Adm.) or the GM (HR & Adm.)

inasmuch as above their signatures, it has been

mentioned- "as per orders" and in fact, the order

has actually been passed by the Managing Director

of the Company, who is higher in rank to the

appointing / disciplinary authority of the petitioner

i.e. the GM cum C.E, thus, it is submitted that there

is no ambiguity or irregularity in the procedure

adopted by the Respondent-Company, right from

the stage of suspension of the petitioner to

initiation of the departmental proceeding to

issuance of charge-sheet and up to the stage of

infliction of punishment of dismissal from service

upon the petitioner herein. Lastly, it is submitted

that as per the aforesaid resolution dated

05.04.2014, the Chairman of the Bihar State Power

(Holding) Company Ltd. is the appellate authority

in cases where the order of punishment has been

passed by the Managing Director of a company.

8. I have heard the learned Senior Counsel for

the parties and perused the materials on record. At Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

the outset, it must be pointed out that the facts

stated in the rejoinder affidavit to the reply to the

counter affidavit filed on behalf of the Respondents

No. 1 to 3, regarding the Managing Director having

taken all the decisions, right from the stage of

suspension to initiation of the departmental

proceeding to issuance of charge-sheet to

appointment of Inquiry Officer and upto passing of

the punishment order, dismissing the petitioner

from his services, as has been categorically stated

in paragraph no. 15 of the said rejoinder affidavit

(at running Page No. 184 of the brief), has neither

been refuted nor denied by the petitioner, thus, it

is clear that the DGM (HR & Adm.) or for that

matter, GM (HR & Adm.) had merely

communicated the order of suspension dated

25.6.2015, the resolution initiating departmental

proceeding against the petitioner dated 09.6.2016,

the second show cause notice dated 21.09.2017

and the order of punishment dated 18.12.2017, to

the petitioner, although all the decisions had been

taken by the Managing Director of the Respondent- Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

Company. Admittedly, the appointing / disciplinary

authority of the petitioner is the General Manager-

cum-Chief Engineer, however, as per the scheme

of delegation of power, more particularly Clause

1.10 thereof which postulates that the authority

higher than the authority competent to exercise

power under this delegation shall have power to

exercise these powers even if there is no specific

delegation to that effect, the Managing Director of

the Company, who admittedly is an authority

higher to the General Manager-cum-Chief

Engineer, was / is fully competent and empowered

to act as the disciplinary authority of the petitioner.

Thus the contention of the learned Senior Counsel

for the petitioner to the effect that the proceedings

in question are contrary to Rules 16 and 17 of the

Rules, 2005 inasmuch as though the appointing

authority of the petitioner is the General Manager-

cum-Chief Engineer, but the subordinate officials

have donned the role of disciplinary authority /

appointing authority is not only incorrect but also

misconceived. In fact, even Rules 16 and 17 of the Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

Rules, 2005, postulate institution of disciplinary

proceedings against any Government Servant and

passing of appropriate orders by acting as the

Disciplinary authority, either by the appointing

authority or any authority to which the appointing

authority is subordinate or any other authority

empowered by general or special order of the

Government. Therefore, this Court is of the view

that the argument advanced by the learned Senior

Counsel for the petitioner is not only misplaced but

also fallacious and bereft of any merit, hence, is

rejected. Consequently, all the judgments, referred

to by the learned Senior Counsel for the petitioner

are not applicable in the facts and circumstances

of the present case.

9. Now coming to the issue as to whether the

Chairman-cum-Managing Director, Bihar State

Power (Holding) Company Ltd., is the competent

appellate authority or not, it would suffice to state

that it is apparent from the resolution dated

05.04.2014, as referred to in the preceeding

paragraphs, hereinabove, that the Chairman-cum-

Patna High Court CWJC No.17558 of 2018 dt.08-10-2021

Managing Director, Bihar State Power (Holding)

Company Ltd., is the competent appellate

authority in such cases where the order of

punishment has been passed by the Managing

Director and moreover, the petitioner had also filed

the appeal before the Chairman-cum-Managing

Director, Bihar State Power (Holding) Company

Ltd., Patna, hence, on this score as well, the

argument advanced by the learned Senior Counsel

for the petitioner is misplaced and devoid of any

merit, thus is rejected.

10. Having regard to the facts and circumstances

of the case and for the reasons mentioned

hereinabove, I do not find any merit in the present

writ petition, hence, the same stands dismissed.

(Mohit Kumar Shah, J)

Ajay/-

AFR                     AFR
CAV DATE                05.08.2021
Uploading Date          13.10.2021
Transmission Date       NA