Satya Paul Sharma vs State of Himachal Pradesh etc.

Chet Ram Thakur, J.—The Petitioner joined the then Electricity Branch of the Public Works Department of Himachal Pradesh as a Sectional Officer. This department was later on bifurcated and was formed in a separate department, known as Multi-Purpose Projects and Power (shortly known as the M.P.P. & Power). While the Petitioner was working in the Giri project, Division No. II, he was served with a charge-sheet, vide memorandum No. SEG/COF-9/60/69-1/389-90, dated 20-2-1969 by the Superintending Engineer, Giri Construction Circle of the M.P.P. and Power, Shakti nagar, Nahan, and the charges are those as contained in Annexure PA. Enquiry was held by Shri P. A. Sharma, Director of Departmental Enquiries, Himachal Pradesh, who found him guilty of two charges. This report was accepted by the Chief Engineer of the M.P.P. and Power and the Petitioner was called upon to show cause against the proposed penalty of removal from service. He submitted his reply, Annexure PE, on 11-9-1971. But before the reply could be submitted by the Petitioner to the show cause notice the department of M.P.P. and Power came to be wound up and the Petitioner''s services were terminated by a notice, Annexure PF, dated 31-8-1971, issued by the Chief Engineer, M.P.P. and Power. However, the Petitioner was also given an offer to join the Himachal Pradesh State Electricity Board (hereinafter called the Board) by this very letter, Annexure PF. The Petitioner signified his assent to join the Board afresh on the terms and conditions offered to him, vide Annexure PG. He was accordingly appointed in a temporary capacity as an Overseer in the pay-scale of Rs. 200-450 in the Board. But, by an order, Annexure PH, dated 1-12-1971, the Petitioner was removed from service in pursuance of the enquiry held by Shri P. A. Sharma. The Petitioner submits that this removal from service was wrong, because on the day the impugned order, Annexure PH, was passed he had ceased to be an employee of the M.P.P. and Power because of the termination of his services, and if any enquiry was pending against him on the date of termination of his services that automatically ceased to be pending. There was no jurisdiction left with the Chief Engineer of the Board to continue the aforesaid enquiry, inasmuch as the previous misconduct, if any, was to be considered by the Himachal Pradesh Government. The order passed by the Chief Engineer of the Board was without jurisdiction. There was no condition of service that the previous conduct of the Petitioner or previous enquiry was to remain alive in spite of the fact that the previous employment had come to an end. Further, it had been contended that the Inquiry Officer had taken into consideration the reports of Shri J. C. Sharma, S.D.O. and Shri B. K. Dass, S.D.O, and that he had not been afforded any opportunity to cross-examine them. Further, the Inquiry Officer did not consider the fact of grave contradictions in the reports submitted by Sarvshri J. C. Sharma and B. K. Dass and other prosecution evidence. The Chief Engineer, who passed the impugned order did not apply his mind to the facts of the case. He, therefore, prayed for the quashing of the order, dated 1-12-1971, Annexure PH, and for a declaration that the enquiry against the Petitioner was illegal.

The Respondents admitted that the services of the Petitioner were terminated by the Chief Engineer of the Board, but they submitted that the removal order was quite legal, inasmuch as according to the notification, dated 24-8-1971, Annexure RC, all assets and liabilities of the erstwhile department of M.P.P. and Power were transferred to the Board. The Chief Engineer was fully competent to complete the action which had been started at the time when the Petitioner was working with the department of M.P.P. and Power. It was also wrong to say that with the termination of Government services and fresh appointment in the Board the said inquiry automatically ceased to be pending and there was no jurisdiction left with the Chief Engineer, It has also been averred that on transfer of the functions of the department of M.P.P. and Power to the Board on 1-9-1971 the services of the Petitioner were placed at the disposal of the Board on foreign service for a maximum period of four months with effect from 1-9-1971 till such time he was absorbed by the Board and, therefore, it is wrong to say that he was appointed afresh as an Overseer, vide Annexure PG, as the Petitioner was not formally absorbed in the services of the Board.

The point that arises for consideration therefore is, whether the Chief Engineer of the Board could take action under the terms and conditions of his services on the basis of the previous enquiry, which was pending at the time when the department was transferred to the Board and the Petitioner was given a notice of termination of his services. It is clear from the notice, Annexure PF, that in view of the Government decision to set up the Board, the M.P.P. and Power Department was to cease functioning and he was served with one month''s notice of termination under the Central Civil Services (Temporary Service) Rules, 1965 and it was mentioned therein that his services will be considered to have been terminated on the expiry of the notice period of one month, if relieved earlier, he will be paid salary and allowances for the period falling short of one month notice. This notice is dated 31-8-1971. Therefore, it leaves no manner of doubt that the Petitioner''s services had been terminated by this notice. By this notice, however, he has been asked to give his option to serve the Board on pay and allowances sanctioned by the Board on the terms and conditions mentioned in the notification. He was asked to exercise option only if he was prepared to waive his right to receive the salary and allowances for the period the notice fell short of one month. This will also show that his services were terminated and in case he exercised his option before the expiry of one month to join the Board then he was not to be paid one month salary, rather, he was to be absorbed in the department. But, otherwise his services from the M.P.P. and Power Department had come to an end. The terms and conditions which have been circulated and are given in Annexure RD provide only for pay and allowances, pensionary benefits, leave, leave salary and leave travel concession, re-imbursement of tuition fee and children education allowance, provident fund, travelling allowance, disability leave and medical facilities. The Petitioner has given an extract of the regulations applicable to the erstwhile Government servants of the department of M.P.P. and Power. His transfer on foreign service to the Board took place on 1-9-1971. Neither from this extract, which is enclosure to Annexure PF, nor from Annexure RD, it can be inferred that the employees so transferred were also to be punished for any misconduct on their part during the period when they were serving under the M.P.P. and Power.

The submission of the learned Advocate-General is that it was a liability which the Board had to liquidate and he has relied upon Amrit Rai Sood v. State of Punjab and Ors. 1972 S.L.R. (P&H) 879 to support his argument. This authority only says that there is no provision in the Punjab Re-organisation Act, 1966, which provides for the transfer of pending enquiries and it will be violative of the rules of natural justice if enquiry is held by an authority not competent to do so and decision is given thereon by another without making the recommendations of the inquirying authority available to the delinquent official. In this case, it appears, that after the re-organisation the Petitioner who had been allocated to Punjab Government was no longer in the service of Haryana Government and an enquiry was made by the Haryana Government against the Petitioner after the re-organisation because before allocation he was posted in Sirsa Division in the District of Hissar (Haryana). The action was communicated to the Punjab Government and it was requested that the amount in excess be recovered from the Petitioner. It was thereupon that he filed the petition and it was held that the authority competent to take disciplinary action against the Petitioner was only Punjab Government, to whom the Petitioner stood allocated and under whose administrative control he was working after re-organisation. It was further held that after re-organisation the Petitioner was no longer in the service of the Haryana Government and any enquiry made by the Government against the Petitioner was without jurisdiction. It was only the Punjab Government which could hold enquiry, if so advised, no matter that it related to a cause that arose before the re-organisation and in a territory now falling within the jurisdiction of another State. Therefore, this authority, in my opinion, does not help the Respondents, rather it helps the Petitioner because in the instant case the enquiry had been initiated by the M.P.P. and Power Department of the Government of Himachal Pradesh, and it was only the action which was taken by the Respondents to whom he had been allocated. Since the enquiry had preceded before termination of his services, therefore, this enquiry could not survive and if any enquiry at all had to be started then it was only the Board which was competent to do so. Here the enquiry had been initiated earlier. All the proceedings had been completed, except passing of the final order of removal from service.

The second authority relied is Mohd. Yaqub v. The Union of India and Ors. AIR 1971 Delhi 45. By this authority the learned Advocate-General wants to emphasise that the word "liability" has a wide import and that any enquiry held against a delinquent public servant on his transfer to an autonomous body is a liablity which has got to be discharged or liquidated by the new employer. This is also a case under the Punjab Re-organisation Act. There was a clear provision made in Section 67 of the Act, which provided for the dissolution of the Electricity Board and its assets, rights and liabilities had to be apportioned between the successor States. The question involved in that case was whether the employment of the employees of the Electricity Board constituted the liability of that Board. This authority also, in my opinion, has got no bearing on the facts of the present case, inasmuch as it is the enquiry which, according to the learned Advocate-General is a liability incurred and which liability must be transferred to be successor and must be liquidated. But this view appears to be wholly untenable.

One more authority on which reliance is placed is W.W. Joshi and Others Vs. State of Bombay and Others, This authority also says that the word "liability" in its widest import means an obligation or duty to do something or to refrain from doing something. There is no reason why any restricted meaning should be given to the word "liability". This was also a case under the States Re-organisation Act, 1956, and Sections 87 and 88 which fell under Part VI of the Act related to apportionment of assets and liabilities. This authority has got no bearing on the facts of the present case because in the aforesaid authority the Petitioners were in the service of the former State of Madhya Pradesh. Their services were terminated by the orders of the Government of the then State of Madhya Pradesh prior to 1-1-1956 when the States Re-organisation Act came into force. Two of the Petitioners were serving on the date of the termination of their services in the territories which after re-organisation became part of the State of Bombay. Two of the Petitioners had challenged the orders of their dismissal by petitions before the then High Court of Judicature at Nagpur. These petitions were filed against the State of Madhya Pradesh. After re-organisation their cases were transferred on a certificate issued by the Chief Justice of the High Court of Judicature at Nagpur to the Bombay High Court. On the applications of the Petitioners the State of Bombay was joined as a party to the petitions. The remaining Petitioners directly went to the High Court of Bombay after the States Reorganisation Act came into force. All of them claimed that their petitions were maintainable against the State of Bombay and that the State of Bombay was liable to re-instate them or give them such relief as was available to them under law, on the orders of dismissal being quashed by Court, and the question was whether they were entitled to the relief asked for by them against the State of Bombay. Section 88 of the States Reorganisation Act, 1956, has provided that where, immediately before the appointed day, an existing State is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall "(a) if there be only one successor State be a liablity of that State (b) if there be two or more successor States and the cause of action arose wholly within the territories which as from that day are the territories of one of them, be a liability of that successor State; and (c)...". Therefore, in the face of the specific provision about any liability in respect of any actionable wrong in the Re-organisation Act, it cannot be said that this authority will have any application to the facts of the present case when the liability in respect of an actionable wrong has neither been provided for either in the Electricity (Supply) Act, 1948 nor is there any specific mention in the terms and conditions offered to the Petitioner at the time of his taking over as an employee in the Board.

Learned Counsel for the Petitioner contends that after the notice for termination of services was given there was no relationship of master and servant and no proceedings could be initiated by the Government. If the Government wanted to punish him then his services should not have been terminated. In this behalf he relies on State of Punjab Vs. Khemi Ram, which says that if the disciplinary action is sought to be taken against a Government servant it must be done before he retires as provided by Rule 3.26 (d). If a disciplinary enquiry cannot be concluded before the date of such retirement, the course open to the Government is to pass an order of suspension and refuse to permit the concerned public servant to retire and retain him in service till such enquiry is completed and a final order is passed therein. Similarly in V.P. Gidroniya Vs. The State of Madhya Pradesh and Another, a Government servant gave notice to the Government stating that he has terminated his service with the Government and also intimating that any amount payable by him to Government may be forfeited from the amount due to him from the Government. In those circumstances it was held that the servant is not in service of Government from date on which Government received notice and it is not open to Government to take disciplinary proceedings against him after receipt of such notice. A similar principle is laid down in State of Assam and Ors. v. Padma Ram Borah A .I.R. 1965 S.C. 473, wherein it has been held that no action can be taken against a Government servant after the termination of his services. In N.L. Sastry v. The State of Andhra Pradesh 1969 S.L.R. (A.P.) 372 also it had been laid down that when a person has attained the age of superannuation during the pendency of departmental enquiry and the enquiry is continued and punishment is imposed after the age of superannuation the enquiry is illegal when no specific order is passed to retain the Government servant in service after the age of superannuation and that the mere fact that the enquiry is pending does not stop the retirement of the Government servant and some positive act is necessary to keep him in service. Therefore, what follows from all this is that after the State had given a notice of termination of services thereafter it cannot continue the enquiry nor the new employer can impose punishment on the Petitioner on the basis of the enquiry conducted by the previous employer. In so far as the contention that there was a liability the same does not appear to be correct because the liability which had been transferred, vide notification, Annexure RC. is not the liability for taking action against a person who was in the service of the State Government and whose service had been terminated before the enquiry could be completed. The notification, Annexure RC, has been issued in pursuance of Section 18 of the Electricity (Supply) Act, 1948. Section 18 deals with the general duties of the Board which reads as:

Subject to the provisions of the Act, the Board shall be charged with general duty of promoting the co-ordinated development of the generation, supply and distribution of electricity within'' the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by any licensee, and without prejudice to the generality of the foregoing provisions it shall be the duty of the Board--

(a) to prepare and carry out schemes sanctioned under Chapter;

(b) to supply electricity to owners of controlled stations and to licensees whose stations are closed down under this Act;

(c) to supply electricity as soon as practicable to any other licensees or persons requiring such supply and whom the Board may be competent under this Act so to supply.

Therefore, from this what follows is that this cannot be the liability that the Board should have passed an order on the basis of enquiry which was not completed by the State or the M.P.P. and Power. In fact it is Section 47 of the Electricity (Supply) Act which deals with liabilities and those liabilities do not include any such liability where disciplinary proceedings may have been started against a person while he was in the service of the Government and later on his services were transferred to the Board. If the Chief Engineer of the Board wanted to take action against the Petitioner for any such acts for which disciplinary proceedings were initiated by the State, then the Chief Engineer himself had to start disciplinary proceedings afresh and then it could pass appropriate orders after the conclusion of the enquiry because the project where the Petitioner was working at the time when he is alleged to have committed some theft has also been transferred to the Board. But in view of the fact that this order has been passed on a enquiry initiated by the State the Chief Engineer, in my opinion, was not competent to impose this penalty and, therefore, on that ground the order is bad and is liable to be quashed.

The Petitioner had also taken another ground that the Inquiry Officer had relied on the enquiry reports of the two officers, Sarvshri J. C. Sharma and B. K. Dass, but he was not afforded any opportunity to cross-examine them. I think it is not necessary to go into this question when the order itself is passed by an authority who had not initiated the enquiry and before the enquiry could be completed the services of the Petitioner had been terminated.

The result, therefore, is that the petition succeeds and the order, Annexure PH, is quashed. The Petitioner shall be deemed to have continued in service.

No order as to the costs.