Punjab-Haryana High Court
Jagat Singh Dahiya vs State Of Haryana And Another on 23 January, 2013
Author: Rakesh Kumar Jain
Bench: A.K. Sikri, Rakesh Kumar Jain
CWP No.17367 of 2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CWP No.17367 of 2005
Date of Decision:23.01.2013
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Jagat Singh Dahiya
. . . .Petitioner
Versus
State of Haryana and another
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.R.K. Malik, Sr. Advocate, with
Mr.K.K. Chahal, Advocate, for the petitioner.
Mr.Anil Rathee, Addl. A.G. Haryana.
Mr.Ashwani Talwar, Advocate,
for respondent No.2.
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RAKESH KUMAR JAIN, J.
The petitioner has prayed for issuance of a writ in the nature of certiorari for quashing the order dated 25.10.2005 (Annexure P-5) and sought a declaration that the Government has no power under Section 108 of the Electricity Act, 2003 (for short 'the Act') to remove him from the office of Electricity Ombudsman.
The Haryana Electricity Regulatory Commission (Terms and Conditions of service of Electricity Ombudsman and the officers and the staff of the office of the Electricity Ombudsman) Regulations, 2004 (for short 'the Regulations') were framed in terms of Section 181(1) of the Act.
CWP No.17367 of 2005 -2-
The post of Electricity Ombudsman (for short 'Ombudsman') was advertised on 8.12.2004. The petitioner was selected by the duly constituted Committee as per the regulations and offered appointment vide letter dated 4.7.2005. In pursuance thereof, he joined on 5.7.2005. On 22.9.2005, the petitioner was informed that the State Government has directed the Regulatory Commission under Section 108 of the Act to remove him from the said post. Petitioner filed his reply on 27.9.2005 but vide impugned order dated 25.10.2005 (Annexure P-5), he was served with one months' notice and was directed to vacate the post on the expiry of the period of said notice on 25.11.2005 (AN).
Learned counsel for the petitioner has submitted that the power to terminate services of the petitioner, holding a tenure post, has been exercised under Section 108(1) of the Act, which reads thus:-
"In discharge of its functions, the State Commission shall be guided by such directions in matters of policy involving public interest as the State Government may give to it in writing."
It is submitted that the State Government can only issue directions regarding matter of Policy involving public interest but as regards the appointment of Ombudsman is concerned, the Commission is an independent body and the Chairman of the said Commission is the appointing/punishing authority. He has argued CWP No.17367 of 2005 -3- that while exercising the power under Section 108 of the Act, no such decision can be taken by the State to terminate the service of the petitioner as it is not a policy decision. He has also submitted that Section 78-A of the Electricity (Supply) Act, 1948 (for short '1948 Act') is similar to Section 108(1) of the Act which has been interpreted by the Supreme Court in the case of "Rakesh Ranjan Verma and others Vs. State of Bihar and others" AIR 1992 SC 1348, to the effect that the appointment and removal of the officer is not a policy decision of the State and any action taken thereunder would be an encroachment on the power of the concerned Board/Regulatory Body.
He has further argued that the impugned order (Annexure P-5) has not been passed by the Chairman of the Commission, who is appointing/punishing authority rather he has complied with the order passed by the Government. Thus, the order, though signed by the Chairman of the Commission is without application of his mind and is not legally sustainable. In this regard, he has relied upon a decision of the Andhra Pradesh High Court in the case of "Y. Ganga Raju and others Vs. The Railway Board and others" 1983 (1) SLR 686.
It is further argued that the reasons assigned for the termination of his services is totally false because two reasons have been given namely, "that the petitioner is not having required minimum 25 years of experience and that he has been awarded six penalties in his service career". It is submitted that the petitioner has already rendered 33 years of service as he had been appointed as Assistant Engineer on 20.7.1968 and remained as such upto 13.7.1973 when he was promoted as Assistant Executive Engineer on 13.7.1973 which CWP No.17367 of 2005 -4- post he held upto 30.1.1979. Thereafter, he was promoted as Executive Engineer on 31.1.1979 and remained as such upto 15.10.1999 and was further promoted as Superintending Engineer on 15.10.1999 and remained as such upto 13.11.2000 and promoted as Chief Engineer on 14.11.2000 and retired on 31.10.2001. It is also submitted that he had an excellent service record because of which he had been promoted by way of selection from time to time and retired from the highest post of Chief Engineer. With regard to punishment, it is submitted that all the charges were either dropped or disposed of with minor punishment of warning or censure by the competent authority and none of the charge was regarding integrity or honesty as all the charges were of minor supervisory lapses.
On the other hand, learned counsel for the State has submitted that as per his ACRs he had never been graded "Outstanding" even once during the period of service from 1984 till his retirement in March 2001 and was six times charge-sheeted. It is also submitted that the State Government is vested with the powers under Section 108 of the Act to issue direction in public interest which also included the power to remove the petitioner who was unsuited for the job because of his service record.
Respondent No.2 also filed its reply in which it is alleged that the petitioner was appointed strictly in accordance with the provisions of the Regulations which have the force of law and he had possessed the requisite experience, educational qualification and acumen for the said post. Reference is also made to the letter (Annexure R2/5) which is written by the Financial Commissioner & CWP No.17367 of 2005 -5- Principal Secretary to the Government of Haryana, Power Department to the Secretary of the Commission on 21.10.2005 in which the State Government had issued directions to the Commission under Section 108 of the Act to take necessary steps for removal of the petitioner.
We have heard learned counsel for the parties and have perused the record. It is not in dispute that qualification for the post of Ombudsman is provided in Schedule II of the Regulations. The petitioner was appointed on the tenure post for three years on the recommendations of the selection committee and the action for his removal has been taken under Section 108(1) of the Act. The question thus arises as to whether the respondents had the jurisdiction to take action under Section 108 of the Act for the purpose of removal of the petitioner from the post of Ombudsman. A bare reading of Section 108(1) of the Act reflects that the State Commission, in discharge of its functions, can be guided by the State Government only in the matters of policy involving public interest which may be given in writing but insofar as, the removal of the petitioner from the post of Ombudsman is concerned, it cannot be ordered under Section 108(1) of the Act as a policy decision.
In this regard the decision in the case of Rakesh Ranjan Verma (Supra) would be helpful. In the said case, the Bihar State Electricity Board (for short 'the Board) invited applications from eligible candidates for appointment to 447 posts of Junior Electrical Engineers. In the competitive examination 840 candidates including the petitioners therein were declared successful. Out of the panel of CWP No.17367 of 2005 -6- 790 candidates, 447 candidates were given appointment on the post of Junior Electrical Engineers and as no posts of Junior Electrical Engineers were available for remaining 343 candidates which included the petitioners in the said case, they could not be appointed on the posts of Junior Electrical Engineers. However, number of posts of Operators were also vacant for which the requisite qualifications was Diploma in Electrical Engineering, it was, therefore, decided that the vacant posts of Operators be filled up by such candidates who were willing to opt for that employment but would not claim the post of Junior Engineer on the ground that they had applied for appointment to the post of Junior Engineer. The petitioners in the said case opted for the posts of Operators with a specific undertaking that they would not claim for the posts of Junior Electrical Engineers by virtue of their having applied for appointment to the posts of Junior Engineers and having technical qualifications but subsequently they made claim before the Board and the State Government that they should be absorbed against the vacant posts of Junior Electrical Engineers on the basis of the merit list and panel prepared in the year 1984. The State Government issued directions in exercise of the power under Section 78-A of the 1948 Act for their absorption. The Board did not comply with the direction given by the State Government as such the petitioners in the said case filed a Writ Petition. The High Court held that the Board is a statutory authority and has the power to appoint its officers and employees and enable the Board to carry out the functions under the Act. The appointment of the Secretary of the Board alone is subject to the approval of the CWP No.17367 of 2005 -7- State Government but so far as other officers and employees of the Board are concerned, no approval is required to be taken from the State Government. It was further held by the High Court that the power under Section 78- A of the 1948 Act is to be exercised by the State Government only when some questions of policy are involved but such power is not to be exercised for directing that particular individual or a group of persons be appointed as officers of the Board as it was amounted to an encroachment on the power of the Board. The said order of the High Court was upheld by the Supreme Court observing that "thus, we agree with the view taken by the High Court in this regard that the direction given by the State Government to appoint the appellants as Junior Engineers by the Board does not involve any matter of policy and it would be an encroachment on the powers of the Board given under Section 15 of the Act". We are also of the view that under Section 108(1) of the Act, the State Government has no power to order removal of the petitioner as neither his appointment nor removal is a matter of policy involving public interest by which the Commission would be guided in the discharge of its functions.
The second argument of the counsel for the petitioner also carried weight, wherein he has submitted that the impugned order has been passed by respondent No.2 without application of his mind, rather on the direction of respondent No.1 which is very much evident from the reading of the impugned order in which the following assertions have been made by the respondents "now the Financial Commissioner & principal Secretary to Govt. Haryana, Power Deptt. CWP No.17367 of 2005 -8- Vide Memo No.1/21/2004-1 Power dated 21.10.2005 has conveyed that the matter has been considered by the State Government and the State Government has reiterated the directions issued to the Commission under Section 108 of the electricity Act, 2003 vide Memo No.1/21/2004-1 Power dated 19.9.2005, referred to above. Therefore, the Commission has been directed to take necessary steps for removing you from the post of Electricity Ombudsman". From the aforesaid decision, it is clear that even the reply submitted by the petitioner to the show cause notice was not considered by the Chairman/appointing authority rather it has been considered by the State Government who had directed respondent No.2 to pass the impugned order which is apparently illegal as held by the Division Bench of the Andhra Pradesh High Court in the case of Y. Ganga Raju (Supra). The appointing authority had acted merely mechanically at the instance of the State without applying its mind regarding the public interest. Rather in their reply, it has been asserted that the petitioner has been duly appointed in terms of the provisions of the Regulations having possessed the requisite experience as well as educational qualification.
Regarding the third point raised by the counsel for the petitioner that the reason given by the respondents about his having the quite less than the minimum experience of 25 years and the award of six penalties, he has given the dates of his service career spanning over 33 years which means that he had experience of more than 25 years and suffering the punishments of the censure etc for the supervisory lapses only.
CWP No.17367 of 2005 -9-
In reply filed by the respondents, the details of show cause notice, charge-sheets and punishments awarded after due process upon the petitioner have been mentioned which are reproduced as under: -
(i) Charge Sheet No.CH-
2/Conf-1626 dated
06.04.1990
"That he failed to send the
preliminary report in 6 Nos.
theft cases to the Chief
Auditor in terms of the
instructions contained in
Secretary HSEB Circular
No.143995-99 dated
26.11.1970."
The petitioner was advised to remain more careful vide memo No.115/Conf-
1626 dated 07.09.1993.
(ii) Show Cause Notice No.5/Conf-1962 dated 16.02.1991 "That a complaint was received regarding issuance of experience certificates to various employees by some officers working in the PTPP CWP No.17367 of 2005 - 10 - for the trades which these employees had never taken/practiced. On enquiry it was found that you had issued experience certificates of wireman to Sh. Kulwant Singh S/o Sh.
Imreta Rai for the trade/job which the employee had not actually practiced by him, without verifying the fact, from the actual record.
By virtue of this experience certificate the employee got the benefit of exemption to attend educational classes of the course and become eligible to appear in the final examination of the trade in the capacity of a private candidate in the examination held by ITI.
Thus by issuing incorrect/bogus certificate to the above named employees you gave him CWP No.17367 of 2005 - 11 - undue benefit of seeking exemption from attending regular classes for which cannot be without mala fide and ulterior motives."
The petitioner was advised to be more careful in discharging his official duties vide order No. 48/Conf.1962 dated 04.02.1992.
(iii) Charge Sheet No.Ch-
1/Conf-3863 dated
07.02.1997
"That he failed to ensure the
completion of the required
entries in the service book of Sh.
Randhir Singh Lineman who
remained posted under him
from 09.09.1991 to 6/1994 on
his transfer from Rewari
Division to Bhiwani which
caused harassment and
financial hardship to the official.
That Sh. Randhir Singh Lineman retired from Board's Service on 30.07.1996 and due to non-completion of his service CWP No.17367 of 2005 - 12 - book he filed a CWP No.1928 of 1996 in the Punjab & Haryana High Court Chandigarh and the said Court ordered to complete the Service Book of the official by 30.05.1996 otherwise Chairman of the Board shall appeal personally to explain the position. With the interference of Board's senior authorities, the service book of the official had to be got completed within the date fixed by the Court.
That he lacked imagination and drive commensurate with the post held by him which embarrassed the Board in the face of filing a Civil Writ Petition by the official in the High Court and subsequent orders passed by the Court."
The petitioner was advised to remain more cautious and avoid embarrassment to Board vide order No. 170/Conf-3863 dated 08.05.1997.
CWP No.17367 of 2005 - 13 -
(iv) Show Cause Notice No.Ch-
37/Conf-613 dated 04.04.1997.
"That he made excess calls over and above fixed by the Board at his residence at Jind. The total amount of the excess calls was Rs.17091.25 paise."
A sum of Rs.17091.25 paise were ordered to be recovered from petitioner vide order No.209/Conf-613 dated 25.07.1997.
(v) Charge Sheet No.10/Conf-4219 dated 24.10.1997.
"That he carried out various inspections for purchase of 100 KVA and 63 KVA transformers along with Sh. S.K. Garg, SSE, Sonepat against PO No.HH-
4217 dated 25.04.1996 and HH-4229 dated 2.5.1996 as per list attached. He recorded the inspection note against these materials stating that the material is as per specification and GTP's of the purchase order and accordingly recommended CWP No.17367 of 2005 - 14 - authorization to dispatch material. However, on sample checking by Transformer Repair Workshop, Ballabgarh the dimensions and weight of the Transformers were found to be less than the specified values in the drawing/GTPs of the purchase orders. The size of HV and LV conductor was found lesser to the tune of 30%. This is not only proves that the inspection carried out by him was not carried out with the diligence and accepted the transformers put up by the firm and not of its own choice but also reflects the casual approach towards his responsible duties which cannot be without mala fide intention and ulterior motives.
His failure to choose samples of this choice at random encouraged the firm to supply sub standard transformers to CWP No.17367 of 2005 - 15 - HSEB causing a huge financial loss by way of supplying under capacity transformers. This action of dereliction of duties and causing loss to the Board is also unbecoming of an officer of HSEB.":
The services of the petitioner were censured vice order No.223/Conf.- 4219 dated 28.08.2000.
(vi) Charge Sheet No.307/Conf.-
391 dated 31.10.2001.
"That he approved for payment of salary bill from the period 10/1997 to 9/1999 without checking the actual amount which resulted into passing of inflated bills.
That due to lack of his supervisory check Sh. Rishi Parkash Lineman who was entrusted with work of monthly drawal of pay/preparation of salary bills was able to embezzle Nigam's amount to the tune of Rs.18,01,700/- of which CWP No.17367 of 2005 - 16 - Rs.10,11,700/- related to his tenure."
The petitioner was held guilty of the charge of supervisory negligence that facilitated embezzlement and recovery of Rs.20234/- amounting to 2% of total embezzled amount during tenure of the petitioner was ordered vide order No.239/C- 391 dated 29.11.2004."
Thus, keeping in view the facts and circumstances narrated hereinabove, we are of the considered opinion that the respondents had no jurisdiction to pass the order under Section 108(1) of the Act and order had to be passed by the Chairman who had not applied its mind and has passed the order on the diktat of the Government. Thus, the impugned order is hereby set aside but as far as, consequential benefits have been claimed by the petitioner are concerned, he has been charge-sheeted six times and always been visited with punishments, therefore, in view of the decision of the Supreme Court in the cases of "Ranchhodji Chaturji Thakore Vs. Superintendent Engineer Gujrat Electricity, Board, Himmatnagar (Gujarat) and another" AIR 1997 SC 1802, "State of UP and another Vs. Ved Pal Singh and another" AIR 1997 SC 608, "Krishna Kant Raghunath Bibhavnekar Vs. State of Maharashtra and others" AIR 1997 SC 1434, while exercising our CWP No.17367 of 2005 - 17 - discretionary jurisdiction under Article 226 of the Constitution of India, the consequential benefits as prayed for are hereby declined.
(A.K. SIKRI)
CHIEF JUSTICE
(RAKESH KUMAR JAIN)
JANUARY 23, 2013 JUDGE
Vivek