Punjab-Haryana High Court
R.S. Bhatti vs State Of Haryana on 12 March, 2001
Author: K.C. Gupta
Bench: K.C. Gupta
JUDGMENT K.C. Gupta, J.
1. Briefly stated, the facts are that the petitioner was employed as Executive Engineer in Haryana State Electricity Board, Thermal Power Station, HSEB, Faridabad (for short, "the Board") in February, 1997. He was the General Secretary of Haryana State Electricity Board Engineers Association while Sh. O.P. Verma was the President of the said Association. On 3.1.1997, Haryana Government, in exercise of powers under the Haryana Essential Supplies Maintenance Act, 1974, prohibited strike in the Board. On 16.1.1997, the Board, following the said notification of the Haryana Government, issued a circular prohibiting strike in the Board.
2. In January, 1997, a call for one day strike on 13.2.1997 in all Government offices of Haryana was given by the Haryana Sarav Karamchari Sangh. Later on the Joint Action Committee, Haryana Sarav Karamchari Sangh, Karamchari Mahasangh and Haryana State Electricity Board Workers had given a call for strike on 6.2.1997 (2nd half), 13.2.1997 and Dharna in front of D.C. Office on 27.2.1997.
3. The Engineers Association or the petitioner was not a party to the call and did not participate in the strike. The Board issued instructions to the field staff asking the Engineers to discharge duties, perform functions in place of the technical workmen. The Engineers feared that handling of costly equipments without training may not only be risky but may also cause more loss in terms of damage to the equipment for lack of experience and communicated their apprehension to the Association.
4. On 11.2.1997, the Association sent a letter to the Chairman of the Board, intimating the apprehension of the Engineers vide fax message. The petitioner did not take pan in the strike and on the other hand remained on duty as per directions of his superiors. In fact, no member of the Association participated in the strike on 13.2.1997 which was commenced by me H.S.E.B. Unions at 12 O'clock midnigh! on 12/13.2.1997. Reports from throughout the State of Haryana appeared in newspapers about the after effect of strike at various places. The news reports of Jan Satta and the Tribune, filed from Rohtak bureau also mentioned about the fax letter sent by the Association on 11.2.1997 to the Chairman of the Board. The petitioner was charge sheeted on 4.3.1997, On 19.5.1997, the Board appointed Enquiry Officer to hold an enquiry into the allegations against the petitioner. The Enquiry Officer submitted his report to the Board on 6.3.1998, holding that the petitioner was not guilty of mis-conduct as charges against him were not proved. However, the Management did not agree with the enquiry report and issued show cause notice to the petitioner on 18.6.1998, informing him that it had been proposed to impose a punishment of removal from service in terms of punishment and appeal Regulations. The petitioner submitted his reply to the Punishing Authority on 24.7.1998. The Punishing Authority passed the order of removal from service on 7.8.1998 by mentioning reasons for differing with the enquiry report.
5. Against the said order ofremoval dated 7.8.1998 of the Chairman of the Board, Annexure P-13, the petitioner has filed the present writ petition in the nature of certiorari, seeking to quash the impugned order vide which he had been removed from service for alleged mis-conduct as it was based on no evidence and also prayed that he be reinstated in service with continuity of service and all other benefits.
6. On 31.8.1998, notice of motion was issued. Written statement was filed by respondent Nos. 3 and 4 and on July 28, 1999, it was admitted to be heard by D.B.
7. Counsel for the petitioner. Sh. H.L. Sibal, Senior Advocate alongwith Ms. Reeta Kohli, Sh. Rajiv Atma Ram, counsel for respondent Nos. 3 and 4 were heard and the record was gone through with their assistance.
8. It is an admitted fact that Sh. R.S. Bhatti, Executive Engineer (petitioner herein) who was posted a( Thermal Plant. Faridabad, was the General Secretary of Haryana State Electricity Board Engineers Association and Sh. O.P. Verma, Executive Engineer, was its President, In January 1997, a call for one day strike on 13.2.1997 in all Government offices of Haryana was given by the Haryana Sarav Karamchari Sangh. Later on, the Joint Action Committee, Haryana Karamchari Sangh, Karamchari Mahasangh and Haryana State Electricity Board Workers had given a call for strike on 6.2.1997 (2nd half), 13.2.1997 and Dhama in front of D.C. Office on 27.2.1997, as is clear from the letter Annexure P-14/1 addressed by the Additional Secretary of the Board to all Chief Engineers of the Board. There is also no dispute about it that the Haryana Government in exercise of powers under the Haryana Essential Supplies Maintenance Act, 1974 had prohibited the strike in the Board on 3.1.1997. Consequently, on 16.1.1997, the Board, while following the said notification of the Haryana Government, also issued a circular prohibiting strike in the Board. The Association, through the General Secretary and the President, had stint a fax message to the Chairman of the Board, intimating the apprehension of the Engineers on 11.2.1997 which reads as under :-
To Mr. Ranjit Issar. IAS Chairman HSEB, Panchkula.
Sub :- One Day strike by HSEB Employees on 13.2.1997 HSEB Engineers are not opposed to the one day strike call given by HSEB Employees for the cause of opposing proposed privatisation of power sector in Haryana.
Chief Engineers of different areas/zones have directed various project/field Engineers to perform the duties other than their normal duties, on 13.2.1997 and onward when HSEB Employees would be on strike, without any prior training required for acquaintance of any equipment. HSEB Engineers Association does not approve this Act of the Board's Management These instructions are required to be withdrawn immediately. In case these duties are still thrust upon Engineers, they will not be responsiblefor any mishappening taking place in their areas. And the sole responsibility will be of the Board's Management.
Sd/-, Sd/-
(ER. O.P. Verma). (ER. R.S. Bharti) President, General Secretary HSEBEA, Panchkula, HSEBEA Faridabad.
CC : MT OP/MT 'G&P'/MAPF/MFC/SEC. HSEB, Panchkula
1. All Chief Engineers in HSEB.
2. All Superintending Engineers in HSEB with the request to follow the directions of HSEBEA in letter and spirit.
3. All Zonal Secretaries of HSEBEA of respective zones in Haryana to hold zonal meetings on 12.2.1997 and make the call of HSEBEA a success by performing only normal duties on 13.2.1997.
Sd/-. Sd/-
(ER. O.P. Verma), (ER. R.S. Bhalli) President, General Secretary HSEBEA, Panchkula, HSEBEA Faridabad, There was a strike on 13.2,1997 in which the f.ngi-neers did not take part. However, the petitioner was charge-sheeted. Summary of charges against him. Annexure P-4. reads as under :
"Shri R.S. Bhatti w;hile remained posted as Xen. Faridabad Thermal Project Station. IISEB. Faridabad has committed the following acts of omission and commission unbecoming of an officer of HSEB :-
(i) He issued a Press statement dated 12.2.1997 without prior permission of the Competent Authority. Thus has violated provision of Regulations-19 of HSEB Employees (Conduct) Regulations, 1984.
(ii) He criticised the Policy of the Board in the press statement dated 12.2 1997 published in Tribune and Jan Satta. Thus has violated provision Regulations 20(i) of HSEB Employees (Conduct) Regulations, 1984.
(iii) He instigated the other employees to participate in a strike which has been declared illegal on account of notification No. 50/1/97-POL(SP) dated 3.1.1997 under the East Punjab Essential Services (Maintenance) Act. 1974. He has thus vio-
lated provision of Regulations 25 of HSEB-Em-ployees (Conduct, Regulations, 1984.
(iv)He aggravated the power situation in the State of Haryana resulting into shut down of Faridabad Thermal Power Project and disruption of Power Supply to various parts of Haryana.
(v) He encouraged the other employees to wilfully disobey the lawful orders of competent authority.
The above acts of omission and commission on the part of Shri R.S. Bhatti constitute grave misconduct and warrants strict disciplinary action under Regulations 7 of the HSEB (P&A) Regulations 1990.
Sd/-
Secretary, 18.2.1997 Haryana State Electricity Board Panchkula."
9. Statement of allegations against him was also served upon him. The petitioner submitted reply to the charge-sheet vide Annexure P-6, Dissatisfied with the reply, the Board appointed Sh. Kirat Gopal, Chief Engineer, Hydel. HSEB, Yamunanagar, as the Enquiry Officer. Vide Annexure P-8 dated 11.9.1997, the Enquiry Officer enquired from the Chief Engineer, Faridabad Thermal Power Station, Faridabad, as to whether there was any documentary evidence or any other proof available in his office to substantiate the charges No. TIT, TV and V. The Administrative Officer on behalf of the Chief Engineer, Thermal, Faridabad, vide Annexure P-9 dated 12.2,1998, replied to the Enquiry Officer that as per the record available in the office, there is no documentary evidence or any other proof to substantiate the charges as brought out in the letter under reference. After conclusion, the Enquiry Officer submitted his report vide Annexure P-10 and stated that under Charges No. 1 and 2, the petitioner had only espoused the feelings of the Engineers Association and had not played an individual role as Xen. He further stated that as regards Charges No. 3, 4 and 5, there was no evidence to substantiate them and hence, the same were not proved. However, the Disciplinary Authority (Chairman of the Board) did not agree with the findings of the Enquiry Officer and vide order Annexure P-13, the petitioner was removed from service of the Board after serving show cause notice.
10. It is an admitted fact that the petitioner as Genera! Secretary of the Engineers Association alongwjth Sh. O.P. Verma, President of the Association had sent fax message dated 11.2.1997 to the Chairman, Annexure P-5, which has been reproduced above. The words 'incites and instigates' have been defined by the Law Lexicon as under :-
"Incites and instigates. The words 'instigates' and 'incites' should be read to signify something deeper than a mere asking of a person to do a particular act. There must be something in the nature of solicitation to constitute instigation or incitement under Section 27 of the Industrial Disputes Act. The words seem to convey the meaning 'to goad or urge forward or to provoke or encourage the doing of an act'. It is, sometimes, difficult to bring out the exact meaning of words which, by themselves, are so expressive and precise, and, not unoften, in trying to interpret such words, which, on closer scrutiny, may not carry the same sense.
What acts would amount to instigation or incitement will depend also upon the particular facts of each case. In some circumstances a throw of a finger or a mere turning of the eye may give rise to an inference of either incitement or instigation. In others, even strong words, expressly used, may not mean that the person using them was stimulating or suggesting to any one to do a particular act. The words 'instigates' and 'incites' appear to be synonymous and there must be something tangible in evidence to show that the persons responsible for such action were deliberately trying to stir up other persons to bring about a certain object."
11. In the present case there is no evidence that the petitioner has goaded/provoked and encouraged any person to do any act. There is also no evidence that by the act of instigation of the petitioner, any person had gone on strike or had done anything prejudicial to the interest of the Board. There was also no evidence before the Enquiry Officer that the pefitioner had made any press statement on 12-2.1997 to any representative of the newspaper in which he had criticised the policy of the Board and thereby had violated Regulations 19 and 20(1) of the H.S.E.B. Employees (Conduct) Regulations, 1984. Sh. R.S. Bhatti, petitioner, in his statement dated 23.1.1998 attached with Annexure P-6 made before the Enquiry Officer in departmental proceedings, had categorically stated that he had sent fax message to the Chairman of the Board highlighting the general feelings of the HSEB Engineers but he had not issued such fax message to the press and it might have been leaked at its level or at any intervening stage. He has further stated that he has not criticised any policy of the Board and had only highlighted the feelings of the Engineers that in operating the costly equipment by unacquainted personnel might not cause danger to their lives as well as life of sensitive equipments and said message was given in bona fide discharge of his official duties. He next stated that he had highlighted that HSEB Association was not opposed to one day strike call given by the HSEB Employees Union and the said statement pertained to the whole body of the Association and was not in any way made with the intention of instigating the other employees to participate in the strike which had been declared illegal on account of notification dated 9.1.1997 under the employees Essential Services Act, 1974. He further stated that he did not take part in the strike and was present on his duty at Thermal Power Station, Faridabad, right from 1 A.M. in the night of 13.2.1997 upto 6 P.M. alongwith other engineers in the plant to do everything possible to safeguard the costly equipments and to operate them with the meagre staff avail-
able. He next stated that he did not do anything to aggravate the power situation in Haryana, resulting in the closure of Thermal Power Station, Faridabad, disrupting power supply to different parts of Haryana, rather brought back on bar two Units of TPS Faridabad alongwith ail other engineers. He also highlighted that he never encouraged the other employees to wilfully disobey the lawful orders of competent authority. At the cost of repetition, it may be again stated thai no evidence has been led to prove that by his statement any official was instigated and that he had disobeyed the lawful orders of the Board or had done anything to cause damage to the costly equipments of the Board or as a result of his instigation, anybody had gone on strike, He, as a General Secretary of the Engineers Association, had only conveyed to the Chairman of the Board the feelings of the Engineers that they would only perform their normal duties on 13.2.1997 onwards and would not handle the costly equipments for which they had no prior training hut if they were forced to handle the costly equipments, then they would not refuse to do the job but if any mis-happening takes place, then the Board's management would be responsible for the same. Certainly from the fax message, it cannot be inferred that he had instigated the other employees to participate in the strike or had aggravated power situation in the State of Haryana resulting in the shut down of Faridabad Thermal Power Project and disruption of power supply to various parts of Haryana or he wilfully discouraged other employees to disobey the lawful orders of the competent authority.
12. Counsel for the respondents contended that Endst. No. 3 on Annexure P-5 vide which fax message was sent, clearly made out a case for instigation i.e. asking the Engineers to disobey the orders of the Board-Management. In our opinion, the contention of the learned Counsel is nut tenable. The said endorsement is mere a call given by the Association to all Zonal Secretaries to hold Zonal meeting on 12.2.1997 in their respective Zones and to make a call of the Engineers a success by performing only normal duties on 13-2.1997. He had not asked the Secretaries or the Engineers not to perform their normal duties. There is no evidence that the Engineers had refused to perform their normal duties. In fact, there is no positive evidence that the petitioner had intentionally instigated any person to disobey the lawful orders of the Board. Thus, in our opinion, the fax message does not amount to instigation.
13. There is other aspect of the matter. The Chief Engineer. Thermal HSEB, Faridabad, had sent a letter to the Member Technical (G&P), HSEB, Panchkula. dated 22.3.1997, Annexure P-7, regarding report on strike of the Union on 13.2.1997. The relevant por-tion, on internal pages 6, 7 and 8 of this report, reads as under :-
"D.C. and S.S.P. Faridabad visited the office of undersigned at about 00.30 Hrs. on 13.2.1997 and immediately all the available engineering officers of colony were called. D.C. Faridabad in-
sisted that various operating seats be manned and operations of equipments be carried out by the Engineers instead of operating staff and he was told that engineers have no experience to act as operators and moreover a specific seat can be operated by a specific operator having experience on that seat and handling of costly equipments of Power House by inexperienced persons will result into damage of costly equipment and subsequent loss of generation for a long time.
XX XX X XX XX X It is observed that had the police personnel reached the plant at prefixed time and would have been deployed at nodal points timely and had accompanied vehicles for bringing the staff, the situation would have been different and unit I and II would have been continued running.
It is further brought to your kind notice that the above position was explained to Sh. S.P. Sharma. the then M.A. & P.P. (holding charge of Chairman, HSEB) on telephone and he was satisfied with the explanation."
14. Therefore, according to his report, he had informed the D.C. and S.P., Faridabad, who visited his office at 12.30 a.m. on 13.2.1997 and had insisted that various operating seats be manned and operation of equipments be carried out by the Engineers instead of operating staff but he told them that Engineers had no experience to act as operators and moreover a specific seat could be operated by a specific operator having experience on that seat and handing of costly equipments of Power House by inexperienced persons would result into damage of costly equipmenls and subsequently loss of generation for a long time. He also told that the power situation has worsened as police personnel had not reached in time. He further told them that the above said position was explained to Sh. S. P. Sharma, the then M.A, and P.F. (holding charge of the Chairman of the Board) on telephone who was satisfied with his explanation. Therefore, the Chief Engineer, Thermal HSEB, Faridabad, had also echoed the sentiments which were expressed by the General Secretary and the President of the Association. In such situation, the Chief Engineer of the Thermal was the bigges! violater and he should have been held liable for instigation before the petitioner could beheld liable for the same.
15. Counsel for the petitioner next contended that the petitioner had been singled out for taking punitive action against him while other persons who were similarly situated were let off i.e. he has alleged discrimination at the hands of the authorities in dealing with the petitioner. It is an admitted fact that Sh. O.P. Verma was the President of the Association at that time. He was also charge-sheeted and Sh. Narinder Singh. the then Chief Engineer, Operation Zone I, was appointed as an Enquiry Officer. Sh. O.P. Verma, Xen, had submitted that he had acted within the admissible conduct Rules as member of the Engineers Association and fur-
ther had not personally indulged in the strike. He further stated that he had agreed to send the written message to the Chairman, HSEB, for conveying the feelings of the Engineers as per the decision of the Engineers Association. The Enquiry Officer vide his report Annexure P-11 had recommended for dropping the proceedings against Sh. O.P. Verma as it was found that he had not directly caused any loss to the Board and had not joined any strike but had participated in some meeting as a Member of the Engineers Association. In the present case also the petitioner had not joined in any strike and had not caused any loss to the Board but he had only participated in some meeting as General Secretary of the Association and had sent a fax message to the Chairman highlighting the feelings of the Engineers of the Association.
16. Annexure 'A' is the copy of the letter addressed by the Chief Secretary to the Government of Haryana dated 21.10.1999 which is attached with C.M. No. 9968 of 200 regarding review of the cases of employees who had suffered hardship and victimization relating to retrenchment, suspension and termination due to their participation in strike. It shows that the Government had withdrawn the cases registered under ESMA and others Sections of the I.P.C. during the years 1993, 1995, 1996, 1997 and 1998. Even the employees who were dismissed, terminated, suspended and imprisoned during the years 1993, 1995, 1996, 1997 and 1998 were taken back and their absence period was regularised as duty period with full pay and pension. All criminal cases registered against them in connection with taking part in the agitation were withdrawn. The disciplinary proceedings were dropped. Therefore, the employees who had actually taken part in the strike were pardoned. An instigator cannot be worse than the person who had actually gone on strike. If the cases against the persons who had actually taken part had been withdrawn, then the case against the petitioner should also have been withdrawn. A persual of the statement of charges, Annexure 'Z' (attached to C.M. No. 25104 of 2000) against Sh. R.C. Jagga, who was working as a Divisional Accountant shows that he was charge-sheeted for giving call to proceed on strike on 11.12.1998 which was declared illegal and further he instigated the employees of HVPNL to proceed on illegal strike and then due to his instigation, the employees of the Nigam proceeded on strike resulting into loss of Rs. 15 lacs to HVPNL and he was sought to be proceeded against departmentally but subsequently vide Annexure Z-2 (attached to C.M. No. 25104 of 2000) dated 28.10.1998, the charge-sheet was withdrawn. Certainly, he was responsible officer and if charge-sheet against him had been withdrawn, there is no reason as to why the charge-sheet against the petitioner should not have been withdrawn. Therefore, the petitioner has been intentionally discriminated vis-avis the other employees.
17. In view of the discussion above, the writ petition is accepted and a writ in the nature of certiorri issued quashing the impugned order dated 5.8.1998. An-
nexure P-13, removing the petitioner from the service of the HSEB for alleged misconduct and the petitioner be reinstated with continuity of service and all other service benefits forthwith.