Patna High Court
Ajay Kumar Prasad vs Bihar State Electricity Board And Ors. on 23 March, 1995
Equivalent citations: 1995(2)BLJR1424
Author: Bisheshwar Prasad Singh
Bench: Bisheshwar Prasad Singh, Surinder Sarup
JUDGMENT Bisheshwar Prasad Singh, J.
1. The petitioner herein has impugned the order dated 3.2.1993 (Annexure-5) passed by the Bihar State Electricity Board placing him under suspension pursuant to the initiation of a departmental proceeding against him by a resolution of the Board dated 9.12.1992 (Annexure-4). From Annexure-4 it appears that the Board by a resolution dated 9.12.1992 decided to initiate a departmental proceeding against the petitioner for enquiry into alleged acts of misconduct, and also appointed an enquiry officer to enquire into the charges levelled against the petitioner. The aforesaid annexure also discloses that a copy of the charge-sheet alongwith other relevant documents were directed to be served upon the petitioner.
2. The submission urged on behalf of the petitioner is that the respondent-Electricity Board has no power to place the petitioner under suspension, and reliance is placed upon an earlier order passed by this Court in C.W.J.C. No. 3689 of 1992 (R) dated 8.1.1993, as also another an order of this Court in C.W.J.C. No. 7953 of 1988 dated 5th January, 1989.
3. It is necessary to refer to the factual background in which the instant writ petition has been filed. The petitioner was working as an Electrical Executive Engineer (Technical) when he was placed under suspension by an earlier order dated 29.10.1992 in contemplation of a departmental proceeding. The aforesaid order dated 29.10.1992 was challenged by the petitioner before this Court in C.W.J.C. No. 3689 of 1992 (R). This Court by order dated 8.1.1993 quashed the order of suspension holding that since the Board had not published any notification under Section 79(c) of the Electricity (Supply) Act, 1948, adopting Rule 49(a) of the Civil Services (Classification, Control and Appeal) Rules, 1930, the Board had no power to suspend its employee in contemplation of a departmental proceeding. On such reasoning the impugned order of suspension dated 29.10.1992 was quashed. In that order it was also noticed by this Court that there was no statement on behalf of the Board that any charge-sheet had been served upon the petitioner in the contemplated departmental proceeding.
4. After the disposal of the aforesaid writ petition, the order of suspension was revoked and the petitioner was reinstated in service. However, the Board considered the entire matter and by its resolution dated 9.12.1992, as is evident from Annexure-4, it decided to initiate a departmental proceeding against the petitioner on charges of disobedience of the order of the Board, and other charges of gross misconduct. The petitioner was called upon to submit his show cause to the Electrical Superintending Engineer, who was appointed as the enquiry officer. From Annexure-4 it is also apparent that the order was directed to be communicated to the petitioner along with the charge-sheet, and other relevant documents, such as list of witnesses etc. Counsel appearing on behalf of the Board submitted that the Board, being the appointing authority of the petitioner, has itself decided to initiate a proceeding and has issued a charge-sheet in accordance with law. After doing so, the petitioner has been placed under suspension by the impugned order. The suspension of the petitioner therefore, is not in contemplation of a departmental proceeding, but pursuant to the initiation of a departmental proceeding. The Board has power to suspend its employee against whom a departmental proceeding has been initiated. It is also submitted on behalf of the Board that in exercise of the power vested in the Board to make Regulation not in consistent with the provisions of the Electricity (Supply) Act, 1948, (hereinafter referred to as 'the Act) the Board has in fact issued Standing Order dated 29th July, 1983, whereby it has framed Regulation in the same terms as Rule 49(a) of the Civil Services (Classification, Control and Appeal) Rules, 1930. Under the said Regulation, which has been annexed by the petitioner himself as Annexure-6, the appointing authority or any authority to which it is subordinate, or the Chairman of the Board, by general or special order, may place a Board's servant under suspension, where a disciplinary proceeding against him is contemplated or is pending. It is not necessary to refer to the other provisions of the said Regulation, as the same are not relevant. It is submitted that the aforesaid Regulation dated 29.7.1983 authorised the appointing authority, or any authority to which it was subordinate, or the Chairman of the Board, to place under suspension a Board's servant against whom a departmental proceeding was contemplated or was pending. Unfortunately, in the earlier two orders of this Court, the said Regulation was not given effect to, because the said Regulation was not published in the official gazette. It is submitted that the provision of the Act as it stood on the day the Regulation was framed, was not brought to the notice of this Court, and that is why this Court interpreting the amended Section of the law gave its verdict on both the occasions.
5. In my view, both the submissions urged on behalf of the respondent-Board must be accepted.
6. Section 79 of the Act as it stood before its amendment on 15.3.1984 reads as follows:.
79. Power to make Regulations,- The Board may make Regulations not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely-
(a) the administration of the funds and the maintenance of its accounts;
(b) ** ** ** ** ** ** ** ** **
(c) the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service;
Section 79 of the Act was amended by Act No. 20 of 1983 with effect from 15th March, 1984. After amendment the relevant part of Section 79 of the Act reads as follows:
Power to make Regulations.-The Board may, by notification in the Official Gazette, make Regulations not inconsistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely,
(a) the administration of the funds and other property of the Board, and the maintenance of its accounts;
(b) ** ** ** ** ** ** ** ** **
(c) the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service;
Section 79A was also inserted by the same amendment, which cast an obligation on the Board to lay Regulations made by it before the State legislature.
7. It is, therefore, apparent from a mere perusal of the amended and unamended Section 79 that before 15th March, 1984, there was no requirement of the Regulation being notified in the official gazette. However, after 15th March, 1984, if any Regulation is framed by the Board it has to be duly notified in the official gazette.
8. Annexure-6, the Regulation dated 29.7.1983, provided for the suspension of Board's servant pending a disciplinary proceeding or a contemplated disciplinary proceeding. Clause (6) of the aforesaid Standing Order provided that the same shall be deemed to be a Regulation framed under Section 79(c) of the Electricity (Supply) Act 1948. The aforesaid Regulation came into force from 29.7.1983, on which date Section 79 of the Act stood unamended and, therefore, did not require that the, Regulation should be published in the Official Gazette. It is no one's case that the amendment of Section 79 is retrospective in its operation. It is prospective in its operation and, therefore, does not affect the validity of the Regulations already framed by the Board before the amendment. Such being the legalposition, the Regulation dated 29.7.1983, which provided for the suspension of Board's servant against whom a disciplinary proceeding was pending, or was contemplated, did not require publication in the official gazette. As it appears from Annexure-6, the said Regulation was given wide circulation for notice to all concerned, and therefore the provision of Section 79 of the Act was complied With. I have, therefore, no hesitation in coming to the conclusion that after 29.7.1983, in view of the Regulation framed by the Board, a servant of the Board could be placed under suspension by the appointing authority in contemplation of a disciplinary proceeding, or during the pendency of a disciplinary proceeding. I find from both the earlier orders passed by this Court, including the order passed in the case of the petitioner himself, that the only point which was urged before the Court was that the Board had not published any notification under Section 79(c) of the Act, adopting Rule 49(a) of the Civil Services (Classification, Control and Appeal) Rules 1930. As I have observed earlier, the provision of Section 79, as amended with effect from 15th March, 1984, was only noticed by the Court. It was not brought to the notice of the Court that the insertion of the words "by notification in the official gazette" was made for the first time with effect from 15th March, 1984, and such a requirement did not exist when the Regulation dated 29.7.1983 (Annexure-6) was framed by the Board. Apparently, therefore, the correct provision of law, which was applicable to the facts of the case, was not considered by the Court, and what was considered by it was the amended provision which came into operation subsequently, and did not affect the validity of the Regulation framed earlier on, 29.7.1983. I, therefore, hold that the petitioner has been suspended pending departmental proceeding in accordance with law, and the order of suspension does not call fof interference.
9. It was also faintly submitted on behalf of the petitioner that since the earlier Regulations had been published in the official gazette, the Regulation framed by the Board dated 29.7.1983 (Annexure-6) should also have been published in the official gazette, because the power should have been exercised in the like manner, and subject to the like sanction and conditions, if it was intended to amend, vary or rescind any notification. The argument is based on the principle enshrined in Section 24 of the Bihar and Orissa General Clauses Act, 1917. The argument, however, ignores the fact that where a power to make or issue notification, order etc. is conferred by an Act, the power to add, very or rescind the same must be exercised in the like manner, and subject to the like sanction and condition, if any. In the instant case, there was no requirement of law that the Regulation should be notified in the official gazette. If in the past some of the Regulations were so notified, that was not pursuant to the mandate of law, but may have been done by way of abundant caution. The principle of Section 24 of the Bihar and Orissa General Clauses Act will not apply unless by law it was required that the Regulations framed by the Board be notified in the official gazette. I have held that the law as it existed at the time when the Regulation dated 29.7.1983 (Annexure-6) was framed, did not oblige the Board to notify the Regulation in the official gazette. This argument must also be rejected.
10. The other ground urged on behalf of the respondent-Board in support of the impugned order also has substance. The petitioner has been suspended by the impugned order after a departmental proceeding has been initiated against him. There is considerable dispute as to whether charge-sheet has or has not been served upon the petitioner; but that, in my view is immaterial as long as a decision has been taken to initiate a departmental proceeding, an enquiry officer has been appointed, and charge-sheet framed. As was observed by the Supreme in Government of India v. Tarak Nath Ghose , a disciplinary, proceeding can be said to be started against an officer when complaints about his integrity or honesty are entertained followed by a preliminary enquiry into them culminating in the satisfaction of the Government that a prima facie case has been made against him for the framing of charge. When the order of suspension itself shows that the Government was of the view that such a prima facie case for departmental proceedings had been made out, the fact that the order also mentions that such proceedings were contemplated makes no difference. In the instant case, the petitioner has himself produced a copy of the resolution of the Board (Annexure-4), the decision of the Board communicated to him, initiating a disciplinary proceeding, appointing an enquiry officer and directing service of charge-sheet on him. Counsel for the Board submits that the petitioner is deliberately prolonging the proceeding by not receiving the charge-sheet, though according to the Board, it has been served upon him. As observed earlier, it is not necessary to go into this controversy, because what is certain is the fact that the appointing authority, namely, the Board, has taken a decision to initiate a departmental proceeding, and has taken all other necessary steps in that direction. It cannot, therefore, be denied that a departmental proceeding has in fact been initiated against the petitioner on 9.12.1992, and the order of suspension impugned in this writ petition has been issued thereafter on 3rd February, 1993.
11. Under Section 19 of the Bihar and Orissa General Clauses Act, 1917, where a power to make an appointment is conferred, unless a different intention appears, the authority having power to make appointment, shall also have power to suspend or dismiss any person appointed by it in exercise of that power. It, therefore, follows that the appointing authority always had the power to place the appointee under suspension unless a different intention appeared. It is not disputed that the Bihar Service Code was made applicable to the employees of the Bihar State, Electricity Board and the said Code contains Rule 96 which provides that the Government servant under suspension shall be entitled to the payment of subsistence grant in accordance with the said rule. It cannot, therefore, be disputed that the appointing authority may place an employee under suspension, and during the period of suspension, such employee shall be paid subsistence allowance in accordance with the rule. We are not in this case any longer concerned with the controversy as to whether in the absence of a rule an employee can be placed under suspension in contemplation of a departmental proceeding. Even if that was necessary, as I have already held, the Board has framed appropriate Regulation which authorises the appointing authority to placFe employees under suspension even in contemplation of a disciplinary proceeding. In the instant case, the appointing authority itself has exercised the power to initiate a departmental proceeding, and has itself placed the petitioner under suspension after initiating departmental proceeding. The order of suspension cannot, therefore, be challenged on any such ground.
12. In the result, I find no merit in this petition and the same is, accordingly, dismissed.
Surinder Sarup, JJ.
13. I agree