Bhim Sen vs The State of Himachal Pradesh and Another

Chet Ram Thakur, J.—The Petitioner has called in question the order detailed in Annexure ''E'', dated 24th August, 1971, whereby he had been placed under suspension. The circumstances under which the order of suspension is made are as follows:

Acceptance of bribe, giving general connections without obtaining applications and securities from consumers, giving tube-well connections without getting the estimates sanctioned and claiming false T. A. etc. etc. while working in the erstwhile Punjab as a Line Superintendent.

The Petitioner joined service as a Line Superintendent, Grade II, in the Electricity Branch of Punjab Public Works Department on 28th December, 1953 and continued to work as such till 1st February, 1959, when the Punjab State Electricity Board was constituted under the provisions of the Indian Electricity Supply Act. Thereafter he was absorbed in the Punjab State Electricity Board and ceased to be the Government servant. He continued to work in the Punjab State Electricity Board till 1st May, 1967, when the Punjab State Electricity Board was dissolved under the provisions of Section 67 of the Punjab Re-organisation Act and the Central Government apportioned its assets, rights and liabilities between the successor States, namely, the new State of Punjab, the new State of Haryana, the Union Territory of Himachal Pradesh and the Union Territory of Chandigarh. The Petitioner was transferred to Himachal Pradesh with effect from 2nd May, 1967, and he became the employee of the Himachal Pradesh Government in the Department of Multipurpose Projects and Power as a successor Unit of the Punjab State Electricity Board.

While the Petitioner was working in the composite State of Punjab under the Electricity Board, he was promoted as a Line Superintendent, Grade I, and he continued to serve in the same capacity in the Department of Multipurpose Projects and Power of Himachal Pradesh till 2nd January, 1968, when he was promoted as an Assistant Engineer. He continued to work as such till 28/29th August, 1971, when the impugned order was served on him.

After the service of the above order, the Himachal Pradesh Government in about the end of August, 1971, issued a notification whereby the Department of Multipurpose Projects and Power had been abolished and the Himachal Pradesh State Electricity Board had been constituted under the provisions of Indian Electricity Supply Act read with the provisions of State of Himachal Pradesh Act. After that the services of the Petitioner had been placed at the disposal of the Himachal Pradesh State Electricity Board vide Annexures ''F'' and ''G''. He has challenged the order on the grounds that at the time when it is alleged that he accepted the bribe or indulged in irregularity, he was not a Government servant but was an employee of an autonomous body. As such, no action could be taken under the Central Civil Services (Classification, Control and Appeal) Rules, 1965. If at all, the action could be taken by the competent authority of the composite Punjab State Electricity Board and not by the Himachal Pradesh Government.

The Respondents, in defending the order, relied on a letter marked as Annexure ''D'', annexed with the return, dated 15th June, 1968, from the Secretary, Punjab State Electricity Board, Patiala, which for purpose of convenience may be cited as under:

PUNJAB STATE ELECTRICITY BOARD

From The Secretary, Punjab State Electricity Board, Patiala. To 1. All the Chief Engineers 2. All the Superintending Engineers In the PSEB. 3. All the Executive Engineers 4. The Chief Accounts Officer Memo. No. 71221/315/Re-org. L.C. 318. Dated, Patiala the 15th June, 1968 Subject.-Completion of Preliminary /Regular Enquiries. The Composite Punjab State Electricity Board was dissolved on 2-5-67. As a result of allocation of staff to the various emerging units, a difficulty is being experienced in the matter of completion of preliminary inquiries or regular inquiries against the officers/officials who have been allocated to the Board/Administration other than the Board/ Administration exercising jurisdiction over the area where the alleged irregularities etc. were committed. The matter has been considered in consultation with Haryana State Electricity Board and the H.P. Administration, the following instructions are issued in this behalf:

(i) The preliminary inquiry should be completed by the Board/Department having jurisdiction over the area in which the alleged irregularity/default was committed. After the preliminary enquiry is completed, it should be sent to the Board/Department to which the person concerned has been allocated for taking disciplinary action against the person(s) found at fault.

(ii) The regular enquiries should be ordered by the Board/ Department to which the officer(s) has been allocated. Where more than one persons are involved and they have been allocated to different Boards/Departments, only one enquiry officer should be appointed in consultation with all the concerned units.

Sd/-Secretary, Punjab State Electricity Board, Patiala.

Endst. No. 71316/l8/Re-org.-L.C. 318, dated 15-6-1968.

A copy of the above is forwarded for information and necessary action to the--

Secretary, Haryana State Electricity Board, Chandigarh.

Chief Engineer, M.P.P. and Power, H. P. Government, Simla-4.

Chief Engineer and Secretary, Chandigarh Administration, Chandigarh.

Sd/- Secretary, P.S.E.B., Patiala.

According to the Respondents the alleged irregularities/defaults of the Petitioner in the composite Punjab State Electricity Board would have been in the terms of losses of profits or gains to that organisation now apportioned to Himachal Pradesh under assets, rights and liabilities. u/s 76 of the Punjab Re-organisation Act these are to be set off in a manner as if the Himachal Pradesh Government had itself sustained such losses of profits or gains in a business carried on by it in the years in which the same were sustained. This clearly gives powers to the Himachal Pradesh Government to dispose of such cases in accordance with its own rules and regulations.

Further it had been averred that the services of the Petitioner were placed at the disposal of the Himachal Pradesh State Electricity Board on foreign service for a maximum period of four months with effect from 1st September, 1971, till such time he is absorbed by the Board under Himachal Pradesh Government notifications, dated 24th August, 1971 (Annexures ''E'' and ''F''). He has not yet been formally absorbed in the services of the Himachal Pradesh Electricity Board.

The Petitioner denied the correctness of the charge levelled against him by his rejoinder and he had also contested the correctness of the same by his averments in the petition.

Now the question is whether the Petitioner against whom there were allegations while he was an employee of the Punjab State Electricity Board could be revived after he had ceased to be an employee of the autonomous body and had been absorbed as a Government servant in the Himachal Pradesh Multi-purpose Projects and Power Department and further whether the action sought to be taken by the Himachal Pradesh Multi purpose Projects and Power Department could also be continued when he had ceased to be a Government employee by his absorption in the service of the Himachal Pradesh State Electricity Board which is an autonomous body. It is not disputed that the Petitioner was an employee of the Punjab State Electricity Board before the dissolution of the Punjab State Electricity Board in May, 1967. Thereafter he was allocated to the Union territory of Himachal Pradesh and was absorbed in the Government service as is evident from Annexure ''D'' which is a letter from the Deputy Secretary to the Government of India, Ministry of Irrigation and Power, New Delhi, addressed to the Chief Secretary to the Government of Himachal Pradesh, Integration Department, Simla, Himachal Pradesh, dated 29th August, 1969. It had been stated in this letter that all such employees, who, as a result of dissolution of the erstwhile Punjab State Electricity Board, had been allocated to the Himachal Pradesh Administration, may be treated as Government servants with effect from 2nd May, 1967, for all intents and purposes and their previous services rendered prior to 2nd May, 1967, may be counted toward fixation of their seniority, pay and pension under the Central Government Rules. This impugned order was passed on 24th August, 1971, and during the period of suspension under the provisions of this order his headquarters had been fixed at Solan in the Office of the Superintending Engineer. On the 20th September, 1971, a Memorandum (Annexure ''F'') styling it as "offer for appointment in Himachal Pradesh State Electricity Board" to the Petitioner was issued and he was apprised that the Board was prepared to take him in its permanent service in his substantive capacity as Overseer in the grade of Rs. 200- 450 and on ad hoc capacity as an Assistant Engineer in the grade of Rs. 450-1000 from the date his post under the Himachal Pradesh Government was abolished and his services were dispensed with. He was further told that, in case, he was prepared to serve under the Board on those conditions he should apply to the Secretary to the Government of Himachal Pradesh Multi-purpose Projects and Power with a copy to the Officer on Special Duty, Himachal Pradesh State Electricity Board, Simla, not later than 30th November, 1971. The Petitioner accepted the offer by his letter (Annexure I), dated 12th October, 1971. Annexure J-2 is a notice of discharge under the Civil Service Rules which was issued on 31st August, 1971, by the Chief Engineer, Multi-purpose Projects and Power Department of Himachal Pradesh to the Petitioner who was then placed in Rampur Electrical Division as Assistant Engineer. It says that consequent upon the closure of the Multi-purpose Projects and Power Department, Himachal Pradesh with effect from 31st August, 1971 (A.N.) as per Himachal Pradesh Government Notification No. 17/8/70-MPP (Sectt), dated 24th August, 1971, his services were transferred to the Himachal Pradesh State Electricity Board on Foreign Service on the terms and conditions set forth in Himachal Pradesh Notification, dated 24th August, 1971. It had been stated that after careful consideration, the Governor of Himachal Pradesh had decided to terminate the foreign service arrangements to abolish the post held by him under the Government. He was, accordingly, informed that the post of L. S. Grd. II in the grade of Rs. 200-450 held by him under the State Government shall stand abolished on the expiry of three months from the date of receipt of the notice by him and from the date on which the said period of three months expired, his services under the State Government shall stand dispensed with. This will, therefore, show that the services of the Petitioner had been terminated by the State Government consequent upon the abolition of the post. Therefore, it is wrong to say on the part of the Respondents that he was on foreign service and had not as yet been permanently absorbed and that the State could still take an action. He had ceased to be a Government employee, therefore, in my opinion, the State Government could not take any action against a person, who had ceased to be its employee and this case is clearly governed by the decision in Civil Writ Petition No. 15 of 1972 Satya Paul Sharma v. The State of Himachal Pradesh and Ors. decided on 4th December, 1974, against which a Letters Patent Appeal No. 15 of 1975 The State of Himachal Pradesh v. Shri Satya Paul Sharma was filed and which was dismissed on 29th April, 1975, and the ratio of that case clearly applies to the facts of this case.

The submission of the learned Advocate-General is that it was in pursuance of the Annexure ''D'' to the return to which reference has already been made above, the State Government was competent to take action against the Petitioner for his misconduct committed by him while he was in the service of the Punjab State Electricity Board in the composite State of Punjab. According to him this was the liability and which had been apportioned. But I have already stated that the principle laid down in Shri Satya Paul Sharma''s case (supra) is clearly applicable to the facts of this case and it being not an actionable claim, this could not be a liability so as to be apportioned. Admittedly before 2nd May, 1967, he was an employee of an autonomous body and not a Government servant. He became a Government servant with effect from 2nd May, 1967, and the allegations on the basis of which he had been suspended related to his misconduct when he was in the Punjab State Electricity Board. In my opinion, he on the basis of those allegations could not be suspended nor any inquiry could be ordered by the State of Himachal Pradesh after he had become the Government servant. The letter (Annexure D) was issued on the 15th June, 1968, when the Punjab Government had no control over the Petitioner and he had become the employee of the State of Himachal Pradesh. So this letter will not assist the Respondents. It is true that an action could have been taken if the Board in Himachal Pradesh had been created in the month of May, 1967, by the successor. But in so far as the State of Himachal Pradesh is concerned it had no authority to take any action for any lapses of misconduct committed by the Petitioner during the period when he was not a Government servant. Section 76, in my opinion, has got no bearing on the facts of the case. It deals with the Income Tax matters, etc. But the Petitioner was sent to the Multi-purpose Projects and Power Department of the State of Himachal Pradesh and, therefore, this act mentioned under the letter (Annexure ''D'') is dehors of the pro visions of the Punjab Electricity Supply Act as soon as he became the employee of the Himachal Pradesh Government. The order (Annexure ''E'') whereunder he had been placed under suspension will, therefore, become infructuous as soon as the services of the Petitioner were terminated and he ceased to be a Government servant and became an employee of an autonomous body.

Learned Advocate-General has relied on Amrit Rai Sood v. Slate of Punjab and Ors. 1972 S.L.R. 879. This authority has been noted in Satya Paul Sharma''s case (supra) and I have field that this authority has no bearing on the facts of the case and to the facts of this case.

In these circumstances, the order of suspension does not survive and the same is liable to be quashed which I hereby do. Since the Petitioner has succeeded, therefore, he is entitled to costs which are assessed at Rs. 100/- recoverable from Respondent No. 1.