Patna High Court
Binod Prajapati vs The Bihar State Power Holding Company ... on 9 January, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19593 of 2018
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Binod Prajapati, S/o Sri Chhathan Prajapati, Resident of Village- Khan, P.O.
Kapasya, P.S. Aurangabad, Mufasil, District- Aurangabad Presently Posted as
Electrical Executive Engineer, Electric Supply Division, Gardanibagh, Patna.
... ... Petitioner/s
Versus
1. The Bihar State Power Holding Company Ltd.
2. The Chairman-Cum-Managing Director, Bihar State Power Holding
Company Ltd.
3. The South Bihar Power Distribution Company Ltd. Vidyut Bhawan, Patna.
4. The Managing Director South Bihar Power Distribution Company Ltd.
Patna.
5. The General Manager H.R. /Administration S.D.P.D.C. Ltd., Vidyut
Bhawan, Patna.
6. The Deputy General Manager, H.R. /Administration S.D.P.D.C. Ltd., Vidyut
Bhawan, Patna.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Mayanand Jha, Sr. Advocate
Mr. Giridhar Gopal Tiwary, Advocate
For the Respondent/s : Mr. Kumar Priya Ranjan, Addl. S.C.
Mrs. Nirmala Singh, Advocate
Mr. Girish Nandan Abhishek, Advocate
Mr. Sandeep Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL JUDGMENT
Date : 09-01-2024
Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. The present writ petition has been filed for setting
aside the Resolution No. 1720 dated 15.11.2017 issued by the
South Bihar Power Distribution Company Limited (hereinafter
referred to as 'the SBPDCL'), as contained in Annexure-11 to
the writ petition and also the order dated 20.07.2018 passed by
the Chairman-cum-Managing Director, Bihar State Power
Holding Company Limited, communicated vide letter No.2366
dated 23.08.2018 (Annexure-14 to the writ petition).
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
2/14
3. Learned counsel for the petitioner submits that the
petitioner was appointed as an Electrical Assistant Engineer in
the erstwhile Bihar State Electricity Board, a Government
undertaking, and joined on such post on 16.03.2009. With the
span of time, the Bihar State Electricity Board was dissolved
and five companies were formed in which the Bihar State Power
Holding Company Limited was the main/controlling company
and the services of the petitioner were placed under the
SBPDCL. The petitioner was ordered to be regularized after the
work of Electrical Executive Engineer, Gaya vide order dated
15.04.2013
. In the year 2014, he was transferred to Bhabua as
Electrical Executive Engineer then to Munger Electric
Executive Engineer, Supply Division as I/c on 11.05.2015. He
further submits that during his posting as Electrical Executive
Engineer, Munger, the Special Task Force (hereinafter referred
to as 'the STF') of the SBPDCL inspected the premises of one
Yadunandan Prasad Sah and found consumption of electricity
beyond the sanctioned load on a particular day i.e. 21.10.2015
as 27.42 HP as against the sanctioned load of 10 HP. Counsel
further submits that on 06.04.2016, a show cause notice was
issued to the petitioner alleging therein that he has not taken
cognizance relating to violation of Clause 7.1 (b) of the Bihar
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
Electric Supply Code 2007 with a view to causing revenue loss
to the company and also with a view to provide illegal benefit to
the consumer.
4. Learned counsel for the petitioner further submits
that the petitioner has filed its reply to the said show cause, but
even then General Manager (H.R./Administration) of the
SBPDCL was not satisfied and issued a charge memo vide
Resolution No.1144 dated 05.08.2016 about initiation of
departmental proceeding with which Prapatra - Ka had been
attached. The petitioner contested the said charge memo and
participated in the enquiry. During the enquiry proceeding
which was conducted by the Chief Engineer, the Enquiry
Officer found nothing adverse against the petitioner and
concluded his enquiry that the allegation had been made only on
suspicion, therefore, not proved. Subsequently, differing from
the enquiry report, vide Resolution No. 964 dated 04.07.2017, a
second show cause notice was issued to the petitioner (as
contained in Annexure-P/9 to the writ petition). The petitioner
submitted a reply to the second show cause notice on
22.07.2017 (as contained in Annexure -P10 to the writ petition),
but the same has not been considered at all and the petitioner
has been awarded the punishment of censor. Counsel for the
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
petitioner further submits that being aggrieved and dissatisfied
with the order of punishment dated 15.11.2017, the petitioner
preferred an appeal before the Managing Director, Bihar State
Power Holding Company Limited, but his appeal was rejected
vide order dated 20.07.2018 in which none of the points raised
by the petitioner have been considered.
5. Learned counsel for the petitioner further submits
that the Enquiry Officer who is the Chief Engineer and a
technical person holding a high post has well considered every
point and found the charge not proved, but this aspect has not
been considered by the disciplinary authority at all. He further
submits that it has not been stated in the second show cause
what action has been proposed to be taken by the disciplinary
authority and as such, the second show cause is in violation to
the provision laid down under the Bihar Government Servants
(Classification, Control & Appeal) Rules, 2005. Counsel further
submits that the connection of consumption in question
remained disconnected between 30.10.2015 to 12.02.2016 due
to non-payment. The loss to the tune of Rs.81341/- had been
caused to the Company and it was subsequently realized in the
form of a penalty issued vide Annexure-16 to the rejoinder
affidavit. According to the petitioner, discrimination has been
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
made in imposing the punishment as the Assistant Electrical
Engineer was imposed lighter punishment (as contained in
Annexure P-12), i.e. stoppage of one increment without
cumulative effect even though he was responsible for doing the
meter reading and not the petitioner. He further submits that
violation of Clause 7.1(b) of the Bihar Electric Supply Code
2007 has not been made as this provision used to apply in case
of consumption of higher load for three consecutive months
because in the present case, the electricity was disconnected on
30.10.2015 and it was restored only on 12.02.2016 and
inspection was done on 16.03.2016 whereas the higher load was
registered by the meter on 21.10.2015, but while testing the
punishment order, neither the disciplinary authority nor the
appellate authority have considered this aspect. The punishment
order was passed without any evidence and it is discriminatory
in nature as those persons who were liable for meter reading and
supervision have been given lighter punishment whereas the
present petitioner has been given a punishment which resulted
in heavy loss to him as his promotion was cancelled and he was
reduced to a lower grade and pay.
6. To substantiate his argument, learned counsel for
the petitioner relied on a judgment rendered in the case of
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
Chairman-cum-Managing Director Coal India and Anr. Vs.
Mukul Kumar Chaudhary and Ors. reported in (2009) 15 SCC
620 and submitted that paragraphs 17 and 18 are relevant in his
case. In addition to that counsel for the petitioner also relied on
paragraphs 12 and 13 of the decision rendered in the case
of B.C. Chaturvedi Vs. Union of India and Ors. reported
in (1995) 6 SCC 749.
7. Lastly, counsel for the petitioner submits that in the
entire service, no pecuniary loss has been caused to the
petitioner. He also submits that during the service period, the
petitioner was granted an appreciation letter for the work done
by him during his posting at Gaya as Electrical Executive
Engineer, Gaya, but this aspect has also not been considered at
all.
8. Learned counsel for the SBPDCL submits he has
filed a detailed counter affidavit on behalf of the SBPDCL. He
further submits that a full-fledged enquiry has been conducted
in the case of the petitioner. For the said wrong two show cause
notices were issued to four persons holding the post of Electrical
Executive Engineer (L/A), Assistant Electrical Engineer, Junior
Electrical Engineer, and JAC. Departmental proceedings have
been initiated against all four persons separately and all were
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
punished. He further submits that there is no procedural lapse in
holding the departmental proceeding. The disciplinary authority
had issued a second show cause by virtue of assigning reasons
in the said second show cause and as such, there is no illegality
in the issuance of second show cause. It is further submitted that
the petitioner being an Executive Electrical Engineer has been
awarded the punishment of Censor. The Assistant Executive
Engineer has been imposed the punishment of stoppage of one
increment with non-cumulative effect. The JEE was imposed
with the punishment of stoppage of two annual increments with
cumulative effect while the JAC was imposed the punishment of
warning.
9. Learned counsel for the SBPDCL relied on a
judgment rendered in the case of Union of India and Ors. Vs.
P. Gunasekaran reported in (2015) 2 SCC 610 and submits that
in paragraphs 12 and 13 of the said judgment, there were
guidelines that under which circumstances, the High Court may
interfere and under which circumstances, the High Court shall
not interfere. He further submits that there is not a single point
in favour of the petitioner as there is neither any procedural
lapse nor there is any violation of the doctrine of proportionality
which is the basis of the judicial review. Counsel for the
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
respondent also relied on the same judgment on which the
petitioner relied in the case of B.C. Chaturvedi Vs. Union of
India and Ors. reported in (1995) 6 SCC 749, paragraph nos. 12
and 13.
10. Learned counsel for the respondent concludes his
argument and submits that there is no scope for judicial review
in the present case as there is neither any procedural lapse nor
error of fact.
11. In the light of the submissions made above, this
Court finds that the disciplinary authority has assigned the
reasons with his disagreement from the enquiry report in which
violation of Clause 7.1 (b) of the Bihar Electric Supply Code
2007 has been taken into consideration and with a view to
proper appreciation, the provision of Clause 7.1 (b) is hereby
reproduced as under :-
"The contract demand for L.T. consumer,
with maximum demand indicator, shall be the
demand contracted by the consumer. The billing
demand will be the contract demand or recorded
demand in consumer's meter whichever is higher. In
such cases provision of clause 6.37 and 6.39 shall
not apply.
The licensee shall install load arrestor of
suitable capacity upto 150% of the contracted
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
load."
12. For further appreciation, it is necessary to quote
the relevant paragraph Nos. 12 and 13 of the judgment rendered
in the case of B.C. Chaturvedi Vs. Union of India and Ors.
reported in (1995) 6 SCC 749, cited by the petitioner, as under :-
12. Judicial review is not an appeal from a
decision but a review of the manner in which the
decision is made. Power of judicial review is meant to
ensure that the individual receives fair treatment and
not to ensure that the conclusion which the authority
reaches is necessarily correct in the eye of the court.
When an inquiry is conducted on charges of
misconduct by a public servant, the Court/Tribunal is
concerned to determine whether the inquiry was held
by a competent officer or whether rules of natural
justice are complied with. Whether the findings or
conclusions are based on some evidence, the authority
entrusted with the power to hold inquiry has
jurisdiction, power and authority to reach a finding of
fact or conclusion. But that finding must be based on
some evidence. Neither the technical rules of Evidence
Act nor of proof of fact or evidence as defined therein,
apply to disciplinary proceeding. When the authority
accepts that evidence and conclusion receives support
therefrom, the disciplinary authority is entitled to hold
that the delinquent officer is guilty of the charge. The
Court/Tribunal in its power of judicial review does not
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
act as appellate authority to reappreciate the evidence
and to arrive at its own independent findings on the
evidence. The Court/Tribunal may interfere where the
authority held the proceedings against the delinquent
officer in a manner inconsistent with the rules of
natural justice or in violation of statutory rules
prescribing the mode of inquiry or where the
conclusion or finding reached by the disciplinary
authority is based on no evidence. If the conclusion or
finding be such as no reasonable person would have
ever reached, the Court/Tribunal may interfere with
the conclusion or the finding, and mould the relief so
as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole
judge of facts. Where appeal is presented, the
appellate authority has coextensive power to
reappreciate the evidence or the nature of punishment.
In a disciplinary inquiry, the strict proof of legal
evidence and findings on that evidence are not
relevant. Adequacy of evidence or reliability of
evidence cannot be permitted to be canvassed before
the Court/Tribunal. In Union of India v. H.C. Goel
[(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ
38] this Court held at p. 728 that if the conclusion,
upon consideration of the evidence reached by the
disciplinary authority, is perverse or suffers from
patent error on the face of the record or based on no
evidence at all, a writ of certiorari could be issued.
13. Similarly, relevant paragraph- 19 of the judgment
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
rendered in the case of the Chairman-cum-Managing Director
Coal India and Anr. Vs. Mukul Kumar Chaudhary and Ors.
reported in (2009) 15 SCC 620, is quoted as under :
"The doctrine of proportionality is, thus,
well-recognised concept of judicial review in our
jurisprudence. What is otherwise within the
discretionary domain and sole power of the
decision-maker to quantify punishment once the
charge of misconduct stands proved, such
discretionary power is exposed to judicial
intervention if exercised in a manner which is out
of proportion to the fault. Award of punishment
which is grossly in excess to the allegations cannot
claim immunity and remains open for interference
under limited scope of judicial review."
Similarly, the relevant paragraphs 12 and 13 of the
judgment rendered in the case of the Union of India and Ors.
Vs. P. Gunasekaran reported in (2015) 2 SCC 610, cited by
counsel for the respondent is quoted, as under :-
12. Despite the well-settled position, it is painfully
disturbing to note that the High Court has acted as an
appellate authority in the disciplinary proceedings,
reappreciating even the evidence before the enquiry
officer. The finding on Charge I was accepted by the
disciplinary authority and was also endorsed by the
Central Administrative Tribunal. In disciplinary
proceedings, the High Court is not and cannot act as a
second court of first appeal. The High Court, in exercise
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
of its powers under Articles 226/227 of the Constitution
of India, shall not venture into reappreciation of the
evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure
prescribed in that behalf;
(c) there is violation of the principles of natural justice in
conducting the proceedings;
(d) the authorities have disabled themselves from
reaching a fair conclusion by some considerations
extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be
influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly
arbitrary and capricious that no reasonable person
could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to
admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted
inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India,
the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case
the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which
findings can be based.
(vi) correct the error of fact however grave it may
appear to be;
(vii) go into the proportionality of punishment unless it
shocks its conscience."
14. Upon going through the provisions, it transpires to
this Court that the petitioner has not taken cognizance of the
said letter which was already implemented on
19.05.2015 whereas by virtue of subsequent amendment in the
year 2016, the provision of sanction was granted. It also
transpires to this court that there is no procedural lapse in this
matter and, therefore, it is not a case of judicial review. The only
point that has to be taken into consideration by this Court that
for the same alleged wrong four different punishments, such as
punishment of censor; punishment of stoppage of one annual
increment; punishment of stoppage of two annual increments,
and punishment of warning have been awarded to the different
persons.
15. At the time of testing the doctrine of
proportionality, it has been found by this Court that while
dealing with the question of the quantum of punishment, would
any reasonable employer has to impose such punishment in like
Patna High Court CWJC No.19593 of 2018 dt.09-01-2024
circumstances likely. Meaning thereby a reasonable employer is
expected to take into consideration the measure, magnitude, and
degree of misconduct and all other relevant circumstances and
exclude irrelevant matters before imposing punishment. In a
case like the present one where the misconduct of the delinquent
was not following Rule- 7.1(b) of BESC, 2007 resulted in a
harsh punishment for the delinquent who has been deprived of
his promotion and has been reduced to a lower grade and pay
for about five years. It is due to this reason, this court only sets
aside the punishment of the censor casted in the disciplinary
order dated 15.11.2017 as well as in the appellate order dated
20.07.2018 and directs the respondent authorities to pass an
order afresh on the point of reasonable punishment considering
the measure, magnitude, and degree of wrong done by the
delinquent within 90 days from the date of production of a copy
of this order.
16 With the aforesaid observation and direction, the
writ petition stands partly allowed.
(Dr. Anshuman, J)
Ashwini/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 10/01/2024
Transmission Date NA
