Madhya Pradesh High Court
Shailendra Kushwaha vs Madhya Pradesh Purva Kshetra Vidyut ... on 8 July, 2024
1 WP-4164-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 8 th OF JULY, 2024
WRIT PETITION No. 4164 of 2024
SHAILENDRA KUSHWAHA
Versus
MADHYA PRADESH PURVA KSHETRA VIDYUT VITRAN
COMPANY LIMITED AND OTHERS
Appearance:
Shri D.K. Tripathi- Advocate for petitioner.
Shri Aditya Khandelar- Advocate for respondent.
ORDER
The present petition has been filed challenging the order Annex.P/1, whereby the petitioner has been punished with penalty of withholding two increments with cumulative effect and further the original charge sheet dated 19/09/2018 (Annex.P/2) issued to the petitioner.
2. At the time of hearing of the petition, learned counsel for the petitioner has restricted his arguments on the singular aspect of incompetence of the charge sheeting authority to issue the charge sheet on the ground that the charge sheet has been issued by the Chief Engineer and the said post was purportedly held by Shri R.K. Sthapak, who issued the charge sheet. It is contended by the learned counsel for the petitioner that the Chief Engineer is undoubtedly having the power to charge sheet, the officers holding the post which the petitioner was then holding i.e. Senior Account Officer. This aspect is not disputed by the learned counsel for the petitioner. However, it is contended by the learned counsel for the petitioner that the said person Shri R.K. Sthapak was not a regular incumbent on the post of Chief Engineer but he was basically holding Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM 2 WP-4164-2024 the post of Superintendent Engineer and he was given the current charge to discharge the functions of the post of Chief Engineer. Thus, in sum and substance, the arguments of learned counsel for the petitioner is that a person holding the current charge of a post does not have the jurisdiction to exercise disciplinary powers vested in the said post and for this reason, the charge sheet Annex.P/2 is issued by incompetent person and also that once the basic edifice and foundation on which the disciplinary proceedings are placed i.e. the charge sheet, hence the entire proceedings and the order passed in pursuance thereto must also crumble.
3. Learned counsel for the petitioner has relied on judgment of coordinate Bench of this Court in WP No.20351/2020 dated 12/12/2023 and also that the said order of coordinate Bench of this Court clearly holds that the officer in- charge of current duty of office cannot issue the charge sheet.
4. Per contra, it is contended by the learned counsel for the respondents that the charge sheet can be issued by Controlling Officer and the officer holding the current charge of post of Chief Engineer was undoubtedly Controlling Officer of the petitioner. Learned counsel relies on judgment of coordinate Bench of this Court in the case of N.K. Pandey Vs. State of M.P. and others 2012(1) MPLJ 479 and also by the Hon'ble Apex Court in the case of P.V. Srinivasa Sastry and others Vs. Comptroller and Auditor General and others 1993 (1) SCC 419. Learned counsel further submits that since the penalty order has been undisputedly issued by the competent disciplinary authority, hence, incompetence of charge sheet pales into insignificance. It is further contended that due to shortage of officers holding the substantive post of Chief Engineer and pendency of reservation dispute in the matter of promotion before the Hon'ble Supreme Court, regular promotions Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM 3 WP-4164-2024 could not be carried out and most of the senior positions were being occupied by officers holding current charge of higher post. If such officers holding current charge of higher post are not incompetent to initiate indisciplinary action, then it would not be possible to initiate disciplinary action against any employee.
5. In rejoinder submissions, the learned counsel for the petitioner submits that Division Bench of this Court in WA No.72/2022 has considered the aspect that though the final penalty order is issued by competent authority, yet the issue can be raised even after finalization of disciplinary proceedings because if the charge sheet is not issued by the competent person, then the entire proceedings would collapse.
6. So far as, the issue regarding the defect of charge sheet having any bearing even after the final penalty order has been issued by competent authority is concerned, the same has been decided by a Division Bench of this Court by detailed order in WA No.72/2022, in which the same employer i.e. Madhya Pradesh Poorv Kshetra Vidyut Vitran Company was the respondent. After considering the provisions of Madhya Pradesh Civil Services, CCA Rules as adopted by the company as well as the aspect of the employees being earlier employed in MP State Electricity Board and taken over by the successor companies after unbundingly of the Board. All these aspects have taken into consideration and ultimately it has been held that the issue of incompetency of charge sheeting Officer would remain alive even after the final penalty order has been issued by competent authority.
7. Thus, this Court would proceed to examine the issue of competence of charge sheeting authority on the argument placed by the learned counsel for Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM 4 WP-4164-2024 the petitioner.
8. The issue of the incompetence of charge sheeting authority has been raised on the sole ground that the charge sheeting authority was holding current charge of the post of the Chief Engineer. It is clearly admitted by counsel for both the parties that the Chief Engineer is the competent authority to issue the charge sheet as per the applicable Rules. However, competence is challenged on the ground that Shri R.K. Sthapak was holding substantive post of Superintending Engineer and only current charge of the post of Chief Engineer. Thus, he could not act as disciplinary authority to issue the charge sheet, which ought to have been issued by the disciplinary authority. Counsel for the petitioner had heavily relied on judgment of coordinate Bench of this Court in WP No.20351/2020.
9. The Hon'ble Supreme Court had the occasion to examine the issue whether a person who holds for the time being, charge of office of higher post can exercise the powers of disciplinary authority vested in the said higher post. The said issue has been decided by the Hon'ble Supreme Court holding that the current charge holder is entrusted with the charge of office of higher post and thus, he becomes entitled to exercise all executive powers, perform duties and discharge functions attached to such office and, therefore, the order of penalty passed by him as disciplinary authority remains legal and valid. The Hon'ble Supreme Court in the case of Gopalji Khanna Vs. Allahabad Bank and others (1996) 3 SCC 538 has held as under:
"7. Shri Wadhwa while exercising the power of review was really discharging the functions of Chairman and Managing Director as he was then placed in charge of those offices and was therefore entitled to perform all the duties and functions of those offices. He did not exercise that power on the basis that it Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM 5 WP-4164-2024 was delegated to him. Therefore, the decisions in Barnard v. National Dock Labour Board [(1953) 1 All ER 1113 : (1953) 2 WLR 995] , Krishna Kumar v. Divisional Asstt. Electrical Engineer [(1979) 4 SCC 289 : 1980 SCC (L&S) 1] and Marathwada University v. Seshrao Balwant Rao Chavan [(1989) 3 SCC 132 : 1989 SCC (L&S) 436] , relied upon by the learned counsel in support of his contention that statutory power can be exercised by the named authority only and cannot be further delegated, require no further consideration. So also, Ramakant Shripad Sinai Advalpalkar v. Union of India [1991 Supp (2) SCC 733 : 1992 SCC (L&S) 115 : (1992) 19 ATC 85] and State of Haryana v. S.M. Sharma [1993 Supp (3) SCC 252 :
1993 SCC (L&S) 1072 : (1993) 25 ATC 594] cited by the learned counsel have no relevance. The question which arose for consideration in those cases was whether an officer who substantively holds a lower post and is asked to discharge the duties of a higher post can be considered as promoted to that higher post. This Court held that entrustment of current duties charge of a higher post does not amount to promotion and in such cases the person continues to hold his substantive lower post and only discharges the duties of higher post essentially as a stopgap arrangement.
8 . It was next submitted that when a person is entrusted with charge of current duties of a higher post, he can exercise only those powers and perform those functions which are available to the person holding the higher post under executive orders and not those which are conferred by statutory provisions. In support of this submission the learned counsel relied upon the decision of this Court in Ajaib Singh v. State of Punjab [(1965) 2 SCR 845 : AIR 1965 SC 1619 : (1965) 2 Cri LJ 553] . In that case what had happened was that the Additional District Magistrate, Amritsar was invested with powers of a District Magistrate under Section 10(2) of the Code of Criminal Procedure, 1898 and was also put in charge of the office of the District Magistrate Amritsar, who was transferred. No order appointing him as a District Magistrate under Section 10(1) was passed. While in charge of the office of the District Magistrate, he passed an order of detention under the Defence Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM 6 WP-4164-2024 of India Act and Rules, 1962. That order was challenged on the ground that as the Additional District Magistrate was not appointed as District Magistrate under Section 10(1) he did not have the power to pass a detention order and, therefore, the order passed by him was without any authority of law and liable to be set aside. This Court after considering the relevant provisions of the Defence of India Act and Rules, 1962 and the drastic nature of the power and the consequences following from it, observed that the power of detention could only be exercised by the State Government or an officer or authority to whom it was delegated and that the said power could be delegated to an officer or authority who was not lower in rank than the District Magistrate. It was then held that even though the Additional District Magistrate was exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate, he was still not the District Magistrate a s he was not appointed as such under Section 10(1) of the Code and therefore, he had no power to pass the order of detention. Even though invested with the powers of a District Magistrate he did not become an officer of the rank of a District Magistrate. In this case we are not concerned with such a provision and therefore are not required to consider whether Executive Director of the Bank when entrusted with the charge of duties of the offices of Chairman and Managing Director became an officer of the rank of Chairman and Managing Director. Moreover the power of the employer to take disciplinary action against his employee including the power to review an order of penalty, has to be distinguished from the statutory power to detain a person. Therefore, on the basis of this decision it cannot be held that the Executive Director who was merely entrusted with the charge of duties of the offices of Chairman and Managing Director could not have exercised the power of reviewing the order of penalty passed by the disciplinary authority."
10. In the aforesaid case, the Hon'ble Supreme Court has also held that a person holding the current duty charge of higher post was really discharging the functions of that higher post as he was placed in charge of both offices and was Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM 7 WP-4164-2024 therefore, entitled to perform all duties and functions of those offices. It was further held that the judgments in the matter of exercise of statutory powers have no relevance because disciplinary powers cannot be deemed to be statutory powers but are really executive powers. In the aforesaid case, the Hon'ble Supreme Court has considered and distinguished the case of Hari Chand Aggrawal Vs. Batala Engineering Co. Ltd. and others AIR 1969 SC 483 and Ajaib Singh Vs. Gurbachan Singh and others Vs. AIR 1965 SC 1619, on which the Full Bench decision of this Court in the case of Girja Shankar Shukla Vs. SDO, Harda 1973 MPLJ 411 was based.
11. In the present case, it is not the case of petitioner that Shri R.K. Sthapak was placed in charge of current duties of Chief Engineer as a stop gap arrangement. It is not in a dispute that he was regularly holding the current charge of higher post of Chief Engineer. It is not a case where a person having come in charge as a stop gap arrangement has exercised the powers vested in the higher office but it is the case in which Shri R.K. Sthapak was in fact regularly holding the current charge of higher post. Thus, in the opinion of this Court Shri R.K. Sthapak was having the power to act as disciplinary authority and discharge the functions of disciplinary authority vested in Chief Engineer.
12. The aforesaid issue also cropped up before Division Bench of this Court in WA No.157/2017. It was a case where the Superintending Engineer holding current charge of Chief Engineer in another electricity distribution company of Madhya Pradesh, suspended an employee discharging the functions of disciplinary authority vested in Chief Engineer. The aforesaid matter ultimately went to the Division Bench and the Division Bench in WA No.157/2017, M.P. Madhyak Kshetra Vidyut Vitran Company Vs. Vikas Gupta and others decided on 06/04/2017 has held that a person holding the Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM 8 WP-4164-2024 lower post was given current duty charge of the post of Chief General Manager by the competent authority. Thus, he was competent to act as Chief General Manager and pass an order of suspension. The Division Bench held as under:
"The challenge in the present appeal is to an order passed by the learned Single Bench on 15.02.2017 in W.P.No.6335/2016 whereby an order of suspension of the respondent herein on 01.09.2016 was found to be passed by a person who was not substantively working as Chief General Manager and thus not competent to pass an order of suspension.
The petitioner was working as Assistant Engineer, Baraghat City Circle, Gwalior. He was suspended by Shri S.K. Upadhyay said to be working as Chief General Manager, Gwalior Region. The challenge to the suspension was on the ground that Shri S.K. Upadhyay was holding substantive rank of the Deputy Chief General Manager. Though on 26.02.2016 he was given current duty charge of the post of Chief General Manager but after his substantive promotion as Deputy Chief General Manager on 24.06.2016, there was no order of their current duty charge of the post of Chief General Manager, therefore, order of suspension is illegal.
The learned Single Bench allowed the writ petition holding that the present appellants could not clarify as to how the Managing Director of the appellant-Corporation could have delegated the authority of discharging of the function of the Chief General Manager on Shri Upadhyay. After observing so, the learned Single Bench held as under:
"In view of this fact, it is apparent that when the delegation of powers exercising the disciplinary authority is clearly vested in a Chief General Manager or the Executive Director or the Chief Engineer of the region and admittedly the person who issued impugned suspension order was not substantively working as Chief General Manager and who admittedly misrepresented himself to be Chief General Manager in the impugned order inasmuch as he was vested Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM
9 WP-4164-2024 with the authority power as Dy. Chief General Manager and was only authorized to exercise the powers of Chief General Manager by the Managing Director, the impugned order cannot be said to have been passed by a competent authority and, therefore, it deserves to be quashed and is hereby quashed."
Before this Court, learned counsel for the appellant refers to Annexure-R/1 dated 26.02.2016 wherein Shri S.K. Upadhyay was posted against the post of Deputy Chief General Manager on current charge basis. He was also directed to look after the work of Chief General Manager. The relevant extract from the order reads as under:
"Shri S.K. Upadhyay, GM(O&M), Hoshangabad is hereby posted on current charge basis as Dy. Chief General Manager, O/o CGM(GR), Gwalior, till further orders. The posting of Shri S.P. Upadhyay, GM on current charge basis as Dy. Chief General Manager is without prejudice to affecting the seniority of any order GM-SE(T&D). He is directed to look after the work of Chief General Manager (GR), Gwalior and is authorized to exercise the powers of Chief General Manager, with effect from 01.03.2016 till further orders. Sd/- (Vivek Porwal) Managing Director".
It is thereafter Shri S.K. Upadhyay was substantively posted as Deputy Chief General Manager by an order passed by the Chief General Manager but there is no order of revocation of order passed by the Managing Director authorizing Shri S.K. Upadhyay to exercise the powers of Chief General Manager as well. The relevant part of order dated 24.06.2016 reads as under:
"Shri S.K. Upadhyay, Dy Chief General Manager (T&D) on current charge and presently looking after the work of Chief General Manager (GR), Bhopal is hereby appointed temporarily to officiate until further orders as Dy. Chief General Manager-Addl. Chief Engineer and posted at the present place of posting w.e.f. the date of assuming charge. 2. The above appointment will be on probation and shall be governed by the provisions contained in Circular Signature Not Verified No.01-05/58 dtd 29.04.89 read with 01-05/1/93 dated Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM
10 WP-4164-2024 18.07.1989, No.01-05/1/1-25473 dtd 21.04.90 No.01-13/1 dtd 09.01.95 and read with Circular No.01-13/3422/19 dated 01.07.05."
The appellants have referred to the delegation of powers on behalf of Corporation including upon its Managing Director. Part-A Section-III Clause 7 empowers the Managing Director to entrust current charge of higher office in the post of Class-I and Class-II without prejudice to the seniority of the officers. It is thus contended that the Managing Director has passed an order to authorize Shri S.K. Upadhyay to exercise the powers of Chief General Manager by the order dated 26.02.2016, which order has not been superseded or 5 Writ Appeal No.157/2017 varied in any manner by Chief General Manager when Shri S.K. Upadhyay was promoted on substantive basis as the Deputy Chief General Manager. Since the current duty charge was granted by the Managing Director of the Corporation in terms of statutory delegation, therefore, it cannot be said that Shri S.K. Upadhyay was not competent to pass an order of suspension.
We find that the order passed by the learned Single Bench is not sustainable. Shri Upadhyay was given current duty charge of the post of Chief General Manager. The said order has not been varied in any manner after Shri Upadhyay was promoted substantially on the post of Deputy Chief General Manger. Therefore, he was competent to act as Chief General Manger and pass an order of suspension. We do not find any error in the order of suspension passed by Shri S.K. Upadhyay on 01.09.2016. Therefore, the order of the Learned Single Judge cannot be said to be legal. The same is accordingly set aside.
At this stage, learned counsel for the writ petitioner (respondent herein) states that he has remedy of filing an appeal against the order of suspension.
If it is so, the respondent may avail such remedy in accordance with law.
With the aforesaid liberty, writ appeal stands allowed Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM 11 WP-4164-2024 and disposed of."
13. The order of coordinate Bench relied by the learned counsel for the petitioner in WP No.20351/2020 does not take into account the judgment of Hon'ble Apex Court in the case of Gopalji Khanna Vs. Allahabad Bank and others (1996)3 SCC 538 as well as the judgement of Division Bench of this Court, wherein it has been clearly held that a person holding lower post but having entrusted with regular charge of higher post can exercising powers of disciplinary authority. It appears that both these orders were not placed before the coordinate Bench. Thus, this Court finds itself bound by the judgment of the Hon'ble Supreme Court as well as that of the Division Bench.
14. Consequently, holding that Shri R.K. Sthapak was competent to issue the charge sheet to the petitioner, the charge sheet Annex.P/2 and consequential order Annex.P/1 are upheld, the petition is dismissed.
(VIVEK JAIN) JUDGE RS Signature Not Verified Signed by: KRISHNA SINGH Signing time: 7/16/2024 5:40:03 PM