Madhya Pradesh High Court
Nand Kishor Nayak vs M.P. Poorv Kshetra Vidyut Vitran ... on 8 May, 2020
Equivalent citations: AIRONLINE 2020 MP 518
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
-1-
W.P. No. 20394/2012 & connected petitions
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W.P. No.20394/2012
Nand Kishore Sharma and others
Versus
Chairman cum Managing Director, M.P. Poorv Kshetriya
Vidyut Vitran Company Ltd. and others
W.P. No.20495/2012
Udal Prajapati and others
Versus
Chairman Cum Managing Director, M.P.P.K.V.V.C.L. and
others
W.P. No.20604/2012
Santosh Kumar Verma and others
Versus
Chairman Cum Managing Director and others
W.P. No.20617/2012
Vinod Kumar Pathak
Versus
The State of Madhya Pradesh and others
W.P. No.20623/2012
Babu Lal Nayak
Versus
The State of Madhya Pradesh and others
W.P. No.20627/2012
Mitthal Lal Jatav
Versus
The State of Madhya Pradesh and others
W.P. No.20630/2012
Jay Prakash Gautam
Versus
The State of Madhya Pradesh and others
W.P. No.20633/2012
Prabhu Dayal Dwivedi
Versus
The State of Madhya Pradesh and others
-2-
W.P. No. 20394/2012 & connected petitions
W.P. No.20634/2012
Arvind Kumar Pathak
Versus
The State of Madhya Pradesh and others
W.P. No.20636/2012
Rajendra Prasad Mishra
Versus
The State of Madhya Pradesh and others
W.P. No.20639/2012
Raj Bahor Verma
Versus
The State of Madhya Pradesh and others
W.P. No.20700/2012
Ram Murty Singh
Versus
The State of Madhya Pradesh and others
W.P. No.20706/2012
Sukh Singh and others
Versus
Secretary, Madhya Pradesh Poorv Kshetra Vidyut Vitran
Comp Ltd. and others
W.P. No.20765/2012
Munnalal Khare and others
Versus
Madhya Pradesh Power Management Co. Ltd. and others
W.P. No.20772/2012
Kamlakant Dwivedi
Versus
Chairman Cum-Managing Director and others
W.P.No.20774/2012
Kishorilal Kushwaha
Versus
Chairman Cum Managing Director and others
W.P. No.20939/2012
D.K. Mishra
Versus
-3-
W.P. No. 20394/2012 & connected petitions
Madhya Pradesh Poorv Kshetra Vidyut Vitran Company
Limited and others
W.P. No.20942/2012
Anurag Sagar Vishwakarma and others
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitran Company
Limited and others
W.P. No.20943/2012
Rajendra Kumar Jaiswal and others
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitran Company
Limited and others
W.P. No.20989/2012
Suresh Prasad Patel and others
Versus
Madhya Pradesh Poorv Kshetra Vidyut Vitran Company
Ltd. and others
W.P. No.20996/2012
Smt. Anuradha Singh
Versus
M.P. Poorv Kshetra Vidyut Vitaran Com. Ltd. and others
W.P. No.20999/2012
Manohar Patel
Versus
Madhdya Pradesh Poorv Kshetra Vidyut Vitran Company
Ltd. and others
W.P. No.21001/2012
Man Singh
Versus
M.P. Poorva Kshetra Vidyut Vitrana Com. Ltd. and others
W.P. No.21199/2012
Nand Kishore Nayak
Versus
Chairman Cum M.D., M.P. Purva Kshetriya Vidyut Vitran
Com. Ltd. and others
W.P. No.21258/2012
Gulab Chandra Kushwaha
-4-
W.P. No. 20394/2012 & connected petitions
Versus
Chairman Cum Managing Director and others
W.P. No.21395/2012
Ramruchi Dubey
Versus
Madhya Pradesh Poorva Kshetra Vidyut Vitran Company
Ltd. and others
W.P. No.21542/2012
Bali Mohammad and others
Versus
M.P. Poorv Kshetra Vidyut Vitran Co. Ltd. and others
W.P. No.21629/2012
Ramkumar Tiwari and others
Versus
The State of Madhya Pradesh and others
W.P. No.21630/2012
Ramesh Kumar Tiwari
Versus
The State of Madhya Pradesh and others
W.P. No.330/2013
Ashok Kumar Sulere
Versus
The State of Madhya Pradesh and others
W.P. No.584/2013
Ramswarup Vishwakarma and another
Versus
Chairman Cum Managing Director and others
W.P. No.6711/2014
Devdatta Gangele
Versus
M.P. Poorv Kshetra Vidyut Vitran Com.Ltd. and others
W.P. No.8283/2014
Munna Lal Khare
Versus
M.P. Purvi Kshetra Vidyut Vitran Comp. Ltd. and others
-5-
W.P. No. 20394/2012 & connected petitions
&
W.P. No.10182/2014
Nand Kishor Nayak and others
Versus
M.P. Poorv Kshetra Vidyut Vitran Com Ltd. and others
Date of Order 08.05.2020
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J.
Whether approved for reporting Name of counsels for For Petitioners : Smt. A. Ruprah, parties Shri D.K. Dixit, Shri Shailesh Tiwari, Smt. Smita Arora, Shri Swapnil Ganguly, Shri Brijesh Choubey, Shri Jitendra Dixit, Shri V.S. Mishra, Shri Vijay K. Pandey, Shri D.K. Tripathi and Shri Praveen Verma, Advocates in their respective petitions.
For respondents : Shri Mukesh
Kumar Agrawal, Shri Sankalp
Kochar and Shri Ajeet Kumar
Singh, Advocates in their
respective petitions.
Law laid down
Significant Para Nos.
Reserved on : 26.02.2020
Delivered on : 08.05.2020
(O R D E R)
This batch of petitions is involving the similar question and issue, therefore, are being decided concomitantly.
2. For the purpose of convenience, the facts of W.P. No.20394/2012 are being taken-up.
-6-W.P. No. 20394/2012 & connected petitions
3. The petition has been filed under Article 226 of the Constitution of India challenging the show-cause notice dated 29.11.2012 (Annexure-P/1) whereby the respondents issued the notice asking the petitioners that at the time of initial appointment, they did not have the requisite qualifications and, therefore, they are not found eligible to be absorbed in the respondents' organization and further informed that the society from where services of the petitioners have been taken, has no work to be taken from them, therefore, in such a circumstance, the respondents had no option but to terminate the services of the petitioners. The petitioners have also challenged the order dated 23.11.2012 (Annexure-P/2) whereby the decision has been taken by the Board of Directors for not granting approval for absorption of services of the petitioners and some other employees named therein.
4. As per the petitioners, they were originally appointed by the Gramin Vidyut Sahkari Samiti Maryadit Laundi, District Chhatarpur (hereinafter referred to as the 'Samiti') vide order dated 30.09.1989 on the post of Assistant Grade-III. Initially they were on probation for a period of one year and thereafter their services were regularized.
5. A notice was published in a local newspaper on 06.08.2010 (Annexure-P/6). As per the recommendation of Madhya Pradesh Electricity Regulatory Committee (for brevity 'MPERC'), the decision was taken for liquidation of the Samiti. Thereafter, another letter was issued on 13.08.2010 (Annexure-P/7) saying that the Samiti has been liquidated and absorbed into the respondents' Company. On 19.08.2010, the letter issued by the respondents -7- W.P. No. 20394/2012 & connected petitions apprising their officers to examine the order issued by the respondent dated 13.08.2010 whereby the services of the employees working in the Samiti were directed to be absorbed into the respondents' company as per prescribed rules and conditions. The officers have also been directed to proceed in the matter according to the guidelines and apprise the progress to the office of respondent No.1.
6. The petitioners were also transferred and accommodated as per the requirement of work and vacancies available with the respondent/company.
7. All of a sudden, the petitioners received the show-cause notice dated 29.11.2012 (Annexure-P/1) which is impugned in the petition. As per the said show-cause notice, the petitioners were apprised that the decision has been taken for terminating their services as they did not have the requisite qualification at the time of their initial appointment in the Samiti and, therefore, they were not found eligible to be absorbed in the respondent/company. The show-cause notice has been issued in pursuance to the order dated 23.11.2012 (Annexure-P/2) which reveals that, as per the letter issued on 21.11.2012 containing the condition for granting approval of absorption of the employees in pursuance to the decision taken by the Board of Directors of respondent/company, which was in compliance to the order passed by the High Court in W.P. No.16/2010 decided vide order dated 01.07.2010, the names of the employees of the Samiti included in the order dated 23.11.2012 were not found eligible to be absorbed and, therefore, no approval was granted. The order further reveals that the services of those employees including the petitioners were directed to be repatriated to the Samiti, but -8- W.P. No. 20394/2012 & connected petitions show-cause notice dated 29.11.2012 was issued to apprise the petitioners regarding decision taken for terminating their services.
8. The petitioners have filed the present petition challenging the show-cause notice dated 29.11.2012 (Annexure-P/1) and order dated 23.11.2012 (Annexure-P/2) on the ground that the same are illegal, arbitrary and passed without any authority. It is also contended by them that they are regular employees of the Samiti, therefore, they cannot be terminated in the manner which has been adopted by the respondents. It is also stated by the petitioners that after taking the decision of liquidation of the Samiti and taking services of the employees working in the same, the respondents cannot say that the petitioners did not have the requisite qualification at the time of initial appointment in the Samiti. It is submitted by them that after completing 20 years of services they cannot be terminated saying that they were overage and were not eligible to be appointed as per the recruitment rules.
9. The respondents have filed their reply taking stand therein that the appointment of the petitioners in the Samiti was contrary to the recruitment rules, known as Service Rules for Employment of Rural Electricity Cooperative Societies in Madhya Pradesh, 1982 (hereinafter referred to as the 'Rules 1982'). It is also stated by the respondents that the show-cause notice dated 29.11.2012 and the order dated 23.11.2012 have been issued after scrutinizing the service record of the petitioners on three primary yardsticks i.e. their eligibility based on their qualification at the time of appointment; their age at the time initial appointment in the Samiti and the changed -9- W.P. No. 20394/2012 & connected petitions cadre of the employees during the course of the employment in the Samiti.
10. It is also stated by the respondents that in pursuance to the decision of absorption, the eligibility qualifications of each and every employee was scrutinized by the Committee constituted by the respondent/authority and the said Committee conducted a detailed scrutiny of the original documents submitted by the Samiti and vide order dated 21.11.2012, final decision regarding absorption was taken. They have also filed a copy of final decision i.e. dated 21.11.2012 (Annexure-R/6).
11. From perusal of the reply filed by the respondents and stand taken therein, it is clear that the sanction for absorption in respect of the petitioners and other similarly situated employees who were named in the order dated 23.11.2012 (Annexure-P/2) was taken as they were not found eligible to be appointed in the Samiti, because they did not possess the requisite qualification as per the provisions of the Rules 1982, therefore, it is stated that the petition does not have any substance and deserves to be dismissed.
12. During the course of arguments, the learned counsel for the petitioners has submitted that after taking decision of liquidation of the Samiti and further taking the decision for absorbing the services of the employees working in the Samiti, the sanction of absorption cannot be refused on the basis of premise which was not part of the order of absorption and the respondents can take the decision only within the four corners of the terms and conditions determined at the time of issuing the order of absorption. As per the petitioners, the decision for -10- W.P. No. 20394/2012 & connected petitions absorption was taken by order dated 13.08.2010 (Annexure-R/4 and R/5). As per the learned counsel for the petitioners, the order dated 13.08.2010 only provides absorption of services of the employees working in the Samiti and it further provides that the absorption will be done after screening of service record of the concerned employee. It is further submitted by the counsel for the petitioners that the said order did not contain scrutiny of initial appointment of the employee working in the Samiti.
13. It is also contended by the learned counsel for the petitioners that the petitioners have never been informed as to which requisite qualification they did not possess and as to on what basis they took the said decision disqualifying the petitioners to be absorbed in the respondent/company in relation to the liquidation of the Samiti.
14. Per contra, the learned counsel for the respondents submits that it is a requirement of law that before absorbing the employee in service, the employer would examine the validity of the initial appointment of the employee who is to be absorbed and if it is found by the employer that the initial appointment was not in accordance with the rules, the employer has every right to refuse to grant approval for absorption of such employee.
15. I have heard the factual and rival contentions urged by the counsel on behalf of the parties and also perused the record. The following questions emerge to be adjudicated:-
(1) As to whether the respondents under the garb of screening of service record can examine the validity of the initial appointment of the petitioners in absence of any -11- W.P. No. 20394/2012 & connected petitions specific condition contained in the order of absorption?
(2) Whether the decision taken by the respondents not granting approval of absorption on the premise that the petitioners did not have requisite qualification that too without giving any opportunity of hearing and without disclosing the fact as to what qualification they did not possess, is proper or not?
16. Admittedly, the petitioners were employees of the Samiti and after liquidation of the said Samiti, their services were to be absorbed in the respondent/company. The decision for absorption had been taken and an order in this regard was issued on 13.08.2010 (Annexure-R-4) which reveals that the work of the Samiti including their electricity consumers shall be done by the respondent/company. After taking the consumers of the Samiti, the said Samiti shall be merged in the jurisdiction of the respondent/company. Another order was issued on 13.08.2010 (Annexure-R/5), in which, it is provided that the absorption of the services of the employees working in the Samiti shall be held in the following manner.
"I) The regular employees of these Societies are hereby provisionally absorbed in the Board on the same terms and conditions as prevailing in respective Societies at the time of issue of aforesaid orders issued by MPERC, subject to condition that final absorption will be done after screening of the service records of the concerned employees."
17. Further on 21.11.2012 (Annexure-R/6) an order was issued by the respondent/company in which it was shown as to what procedure would be adopted for absorbing the services of the employees of the Samiti. The said order further provides the terms and conditions by which the absorption would be governed. The respondents -12- W.P. No. 20394/2012 & connected petitions have not filed any documents except these two orders and have also not taken stand in their reply that there were other terms and conditions under which the decision for absorbing the services of the employees of the Samiti had to be taken. In my opinion, it is a case of liquidation of Samiti and absorption of employees working in the said Samiti with the respondent-company in which the Samiti has been merged. The approval of the absorption would be governed with the terms and conditions of the absorption. The order dated 13.08.2010 (Annexure-R/5) and conditions contained therein which have been quoted hereinabove, it is clear that the provisional absorption of the employees working in the Samiti was done at the time of liquidation and final absorption was subject to approval and that too after screening of the service record of the concerned employee. In furtherance to the condition contained in the order dated 13.08.2010 if the order dated 21.11.2012 (Annexure-R/6) is seen that the following procedure was to be adopted for absorbing the services of the employees of the Samiti:-
"deZpkfj;ksa dh lsokvksa ds lafofy;u gsrq fuEufyf[kr izfØ;k viukbZ tkosxh % ¼v½ deZpkfj;ksa ls mudh lsokvksa ds daiuh esa lafofy;u fd, tkus gsrq fodYi i= fy;k tkosxkA ¼c½ ,sls deZpkjh] tks daiuh esa viuh lsokvksa ds lafofy;u gsrq fodYi nsaxs] ls daiuh esa orZeku esa r`rh; ,oa prqFkZ Js.kh deZpkfj;ksa ds fy, izHkko'khy vf/kokf"kZdh vk;q lhek ds vk/kkj ij viuh lsokvksa dk lafofy;u fd, tkus gsrq lgefr i= pkgk tkosxkA ¼l½ mijksDr ¼c½ ds vuqlkj lgefr iznku djus okys deZpkfj;ksa dh lsokvksa dk gh daiuh esa lafofy;u fd, tkus gsrq vkns'k tkjh fd, tkosaxsA ¼n½ ,sls deZpkjh] ftudh lsokvksa dk daiuh esa lafofy;u ugha fd;k tk ldsxk] ds osru vkfn ds Hkqxrku gsrq lgefr dks Hkfo"; esa dksbZ _.k@lgk;rk iznku ugha dh tkosxhA ¼b½ lacaf/kr v/kh{k.k vfHk;ark] ftuds fu;a=.k varxZr lfefr dk;Zjr jgh gS] mijksDrkuqlkj dk;Zokgh lqfuf'pr djrs gq, bu -13- W.P. No. 20394/2012 & connected petitions deZpkfj;ksa dh lsokvksa dk daiuh esa lafofy;u fd, tkus gsrq a sA"
vkns'k izlkfjr djsx From both the orders, I do not find any condition that before granting approval for absorption any of the conditions was determined empowering the respondent/company to test the validity of initial appointment of the employees working in the Samiti. However, it is provided that the final absorption would be subject to screening of the service record. The question arises as to whether the screening of service record includes the screening or validity of the initial appointment of the employees of the Samiti. In my opinion, the respondents under the garb of screening of service record cannot scrutinize the validity of the appointment of the employees because the condition of the order of absorption under which the employees were provisionally absorbed had to be absorbed on the same terms and conditions of service as prevailing in the respective Samiti at the time of issuance of the order by Madhya Pradesh Electricity Rregulatory Committee and that would entail the final absorption after screening of the service record. It clearly indicates that the screening of the service record was only in respect to ascertain the terms and conditions of service prevailing in the Samiti in respect of an employee who was to be absorbed because the absorption was to be done in the same terms and conditions existing in the Samiti before absorption, so that, if any of the service donditions attached with the respective employee is appeared to be unreasonable and is difficult for the respondent/company to be allowed to continue even after absorption, then they would be at liberty to negotiate with the concerned employee before granting sanction for final absorption -14- W.P. No. 20394/2012 & connected petitions because provisional absorption follows screening of service record then sanction for final absorption. Nowhere, it is shown that the respondent/company would reexamine the appointment of the employees and their qualification at the time of initial appointment. In absence of specific terms in the order of absorption that the employees who were to be considered for absorption if are found not appointed according to the provisions of the Rules 1982, the approval for their absorption would be rejected and the respondents cannot refuse to grant approval for absorption of the employees of the Samiti. I have no hesitation in saying that the absorption was to be done strictly in accordance with the terms and conditions determined between the parties i.e. Samiti, which was to be merged and the respondent/company in which the Samiti was to be merged.
18. As per the stand taken by the respondents in paragraph-3 of their reply, which is quoted hereinbelow:-
"3. That the contention of the petitioner is cryptic, cavalier and contrary to the Service Rules framed for the employees of Rural Electricity Cooperative Societies in Madhya Pradesh, 1982 and the amendments incorporated therein culling out the eligibility qualifications for appointment in Rural Electricity Cooperative Societies, conditions of recruitment and the procedure of appointment etc. It is submitted that the impugned orders have been passed after a detailed scrutiny of the record of the petitioners on three primary yardsticks i.e. their eligibility qualification at the time of appointment, the age at the time of initial appointment in the society and the change of cadre of the employees during the course of employment in the Society.
It clearly indicates that the respondents before granting approval of final absorption, have also examined the petitioners' eligibility qualification and age at the time of initial appointment in the Samiti, whereas there was no such condition and term determined. Thus, such exercise -15- W.P. No. 20394/2012 & connected petitions conducted by the respondents and mechanism adopted by them for granting final approval of absorption was contrary to the scheme of absorption and, therefore, beyond their powers. Accordingly, I do not approve such illegality committed by the respondents. Thus, the impugned show- cause notice dated 29.11.2012 (Annexure-P/1) and order dated 23.11.2012 (Annexure-P/2) are not sustainable as they are vulnerable and liable to be set aside.
19. It is also clear from the record of the case and submissions made by the counsel for the respondents that no opportunity has been provided to the petitioners to demonstrate as to what qualification they did not possess and as to in what manner service record was scrutinized and screened. Even from the show-cause notice, it is not clear as to on what basis the petitioners have been disqualified and which of the qualification they did not possess at the time of their initial appointment. Even otherwise, after rendering service for about 20 years or more, it is not proper on the part of the respondent/company to refuse to grant approval of absorption saying that the petitioners were not eligible at the time of their initial appointment. If that was so, the respondent/company could have imposed such rider in the order of absorption but that was not done. Therefore, the unilateral decision taken by the respondents, not granting any opportunity of hearing to the petitioners and terminating their services can also not be given seal of approval by this Court. The orders impugned, in my opinion, are also liable to be set aside on this count.
20. In one of the cases, decided by this Court in W.P. No.20788/2012 (Smt. Rama Singh vs. Madhya Pradesh -16- W.P. No. 20394/2012 & connected petitions Poorv Kshetra Vidyut Vitran Company and others) , the counsel for the respondents has cited some of the decisions saying that screening and scrutiny of the service record would include testing of validity of initial appointment, but those were not applicable and the reason for same has been mentioned by this Court. Although, in the present case the respondents have not cited any decision, by which he may be able to convince this Court that under the garb of screening of service record, the respondent/company is empowered to examine the validity of order of initial appointment of the petitioners in the Samiti. Particularly, when the petitioners' services have already been regularized by the Samiti.
21. Considering the interim order granted by this Court and in pursuance to which continuous engagement of the petitioners in the respondent/company, I allow all these petitions setting aside the show-cause notice dated 29.11.2012 (Annexure-P/1) and order dated 23.11.2012 (Annexure-P/2) directing to grant all consequential benefits to the petitioners treating them as if they have already been absorbed like other similarly situated employees in whose favour approval of absorption had been granted.
No order as to costs.
(Sanjay Dwivedi) Judge ac/-
Digitally signed by ANIL CHOUDHARY Date: 2020.05.08 17:07:28 +05'30'