IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.12348 of 2015

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Vijay Kumar Mathur, Son of Late Anand Bihari Lal Mathur, Resident of A.P.

Colony, Near Bank of India, Thana- Rampur, District- Gaya

... ... Petitioner

Versus

1.South Bihar Power Distribution Company Ltd., Patna Bihar through

Managing Director.

2.The Deputy General Manager (Human Resources and Administration),

South Bihar Power Distribution Company Limited, Vidyut Bhawan, Bailey

Road, Patna

3.The Chairman-cum-Managing Director, Bihar State Power Holding

Company Limited, Vidyut Bhawan, Bailey Road, Patna

4.The Joint Secretary, Bihar State Electricity Board General Administration,

Patna

5.The Under Secretary, Bihar Electricity Board, Patna

... ... Respondents

======================================================

Appearance :

For the Petitioner: Mr. Vijay Kumar Mathur, Advocate

Mr. Rajeev Kumar Singh, Advocate

For the SBPDCL : Mr. Anand Kumar Ojha, Advocate

======================================================

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD

CAV JUDGMENT

Date : 01-05-2023

Heard learned counsel for the petitioner and learned

counsel for the Respondents.

2. The petitioner in the present case is seeking quashing of

the office order no. 554 dated 15.05.2014 contained in Memo No. 341

dated 15.04.2014 issued by the Deputy General Manager (DGM)

(Human Resources and Administration), South Bihar Power

Distribution Company Limited, Patna (hereinafter referred to as the

‘SBPDCL’) as contained in Annexure ‘1’ to the writ application by

which the petitioner has been awarded the following punishment in the

disciplinary proceeding conducted against him:-

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(i) To completely withheld/deduct pension and gratuity;

(ii) To completely withheld/seize the leave encashment of

the petitioner.

The disciplinary authority further directed that nothing will be

payable to the petitioner except the subsistence allowance for the period

of suspension.

An appeal preferred by the petitioner before the Chairman-cum-

Managing Director, Bihar State Power Holding Company Limited,

Patna (hereinafter referred to as the ‘BSPHCL’) was dismissed vide

Memo No. 295 dated 20.02.2015, hence the appellate order as contained

in Annexure ‘2’ to the writ application is also under challenge.

Brief Facts of the Case

3. The petitioner was posted as Head Clerk, Electricity

Division No. 1 at Gaya when a complaint was filed against him on

15.12.2018 by one Rakesh Pandey before the Director of Vigilance,

Bihar State Electricity Board’s, Cell Vigilance Department, Patna. The

complainant alleged that the petitioner was demanding illegal

gratification of Rs.13000/- for giving electric connection for running

flour mill of 8 HP motor, in addition to the actual fee amount, otherwise

the complainant could not be given the electric connection. In view of

the complaint received, the Vigilance Department organized a trap

wherein on 18.12.2008 at about 13:30 hours, the Vigilance party caught

the petitioner while accepting the bribe of Rs.13,000/- from the

complainant. The petitioner was arrested, brought to Patna and he was

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sent to jail. A First Information Report giving rise to Vigilance Case No.

109 dated 19.12.2008 under Section 7/13 (2) read with 13 (1) (D) of the

Prevention of Corruption Act, 1988 has been lodged. The criminal case

is still pending trial.

Initiation of Disciplinary Proceeding

4. The petitioner was placed under suspension vide Memo

No. 06 dated 06.01.2009. He was served with a memo of charge. An

inquiry was constituted. In the inquiry two witnesses, namely, (1) Shri

Jitendra Jha, Inspector of Police, Vigilance Department Electricity

Board Cell, Patna who was a member of the raiding party and (2) Shri

Jyotimay Sarkar, Section Clerk, Electricity Circle of sub Division No. 1

appeared in support of the charge. The petitioner produced Sri Tapan

Kumar Banerjee as a defence witness. On perusal of the evidences

adduced in course of hearing, the Inquiry Officer observed that 12

witnesses were named in the memo of charge to support the charge but

only two witnesses had appeared in support of the charge. The Inquiry

Officer took a view that the evidence of Shri Jitendra Jha, Inspector of

Police is not able to prove the charges beyond doubt because he has

stated that no transaction of money had taken place in his presence. As

regards the another witness, Shri Surendra Kumar Sinha, Dy.S.P., it is

recorded that the said witness expressed his inability to give evidence

because of the pendency of the criminal case in the court. The Inquiry

Officer recorded that the complainant and the officers who are involved

in verification and investigation have not appeared in support of the

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charges and in the light of the principles of natural justice, the charges

would be proved only when the complainant, the Investigating Officer

and the Verifying Officer give their evidence. With these observations,

the Inquiry Officer took a view that the Department had failed to prove

the charges beyond doubt.

5. On receipt of the inquiry report dated 19.10.2010, the

Disciplinary Authority issued office order no. 307 dated 10.03.2014 by

which he expressed his dissent with the inquiry report and called upon

the petitioner to show cause within 15 days as to why for the proved

charges, he should not be awarded a major punishment in terms of

Clause 29B of the Board’s Standing Order of the erstwhile Board. It

appears from perusal of the show cause dated 10.03.2014 (Annexure

‘17’ to the writ application) that with this notice, the copy of the inquiry

report was not enclosed.

6. On receipt of the show cause notice, the petitioner

responded vide his letter dated 25.03.2014 (Annexure ‘18’ to the writ

application), he took a plea that the copy of the Inquiry report has not

been made available to him and the note of the dissent of the

Disciplinary Authority is not available, therefore, the second show

cause notice dated 10.03.2014 was wholly irrelevant.

7. The petitioner retired from service on 31.03.2014. Till the

date to his retirement no decision was taken in the disciplinary

proceeding, however, vide Order No. 405 dated 03.04.2014 (Annexure

‘19’ to the writ application), the Disciplinary Authority recorded his

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note of dissent and served the same with the copy of the inquiry report

to the petitioner calling upon him to show cause.

8. On receipt of the note of dissent and the copy of the

inquiry report, the petitioner submitted his reply dated 18.04.2014

(Annexure ‘20’ to the writ application) and requested the Disciplinary

Authority to accept the inquiry report and discharge him from the

allegations.

9. The Disciplinary Authority, however, passed office order

no. 554 dated 15.05.2014 (Annexure ‘1’) whereby and whereunder he

rejected the second show cause of the petitioner, held the charges

proved against him and imposed major punishment of forfeiture of the

pension, gratuity and leave encashment. The order has been passed by

the Disciplinary Authority under Rule 43 (b) of the Bihar Pension

Rules, 1950 (hereinafter referred to as the ‘Pension Rules’). Learned

counsel for the petitioner admits that the Pension Rules have been made

applicable to the employees/ workmen of the erstwhile Board of South

Bihar Power Distribution Company Limited (hereinafter referred to as

the ‘SBPDCL’)

Restructuring of the Bihar State Electricity Board

During Pendency of the disciplinary proceeding

10. It appears that during pendency of the disciplinary

proceeding, the Government of Bihar in exercise of its power conferred

by Sections 131, 133 and other applicable provisions of the Electricity

Act, 2003 made a scheme namely, “Bihar State Electricity Reforms

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Transfer Scheme, 2012 (hereinafter referred to as the ‘Scheme of

2012’). The scheme was made to provide for and give effect to the

transfer of properties, interests, rights, assets, liabilities, obligations,

proceedings and personnel of Bihar State Electricity Board (hereinafter

referred to as the ‘Board’) to the Transferees and for matters incidental

and ancillary thereto. By virtue of this scheme which has got statutory

flavour the undertakings of the Board were classified as (a)

Transmission Undertakings, (b) Generation Undertakings, (c)

Distribution Undertakings, (d) Holding Undertakings, on and from the

effective date the assets and all interests, rights and liabilities of the

Board stood transferred and vested in the State Government for the

purpose of further transfers under the scheme. The scheme provides for

transfer of undertakings by the State, transfer of personnel of the Board

and various other matters. This Court will deal with the relevant

provisions of the scheme at appropriate stage.

Submission on behalf of the petitioner

11. Learned counsel for the petitioner submits that in view of

the inquiry report dated 19.10.2010, initially the disciplinary authority

did not proceed with the same for about three and half years and in fact

at one point of time the disciplinary authority thought it just and proper

not to proceed with the disciplinary proceeding during the pendency of

the criminal case but later on the disciplinary authority reviewed the

matter and proceeded to issue second show cause notice without giving

the note of dissent and without serving the inquiry report. It is only

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when the petitioner replied to the same and pointed out the infirmities in

the second show cause notice, the disciplinary authority came out with

another second show cause notice vide memo no. 272 dated 03.04.2014.

Learned counsel further submits that the disciplinary authority has

abdicated his power, did not examine the enquiry report and the second

show cause of the petitioner. It is submitted that what was observed and

proposed by a Section Officer has been simply endorsed by the

Managing Director. It is his submission that the inquiry officer was

correct in taking a view that the charges against the petitioner were not

proved beyond doubts as neither the complainant nor any competent

witness came to support the charges. It is submitted that in the case of

Roop Singh Negi Vs. Punjab National Bank reported in (2009) 2

SCC 570 the Hon’ble Supreme Court held that the inquiry officer

performs a quashi judicial function and the charges levelled against the

delinquent officer must be found to have been proved. It is submitted

that the Hon’ble Supreme Court further held in the said case that the

evidence collected during investigation by the Investigating Officer by

itself could not be treated to be evidence in the disciplinary proceeding.

In the said case no witness was examined to prove the documents and

the management witness merely tendered the documents and did not

prove the contents thereof. In such circumstances, the Hon’ble

Supreme Court did not approve the decision of the disciplinary

authority. It is submitted that in the present case the only material

witness who deposed on behalf of the management was Jitendra Jha, the

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Police Inspector who claimed that he was a member of the raiding team.

In his cross-examination when he was asked as to whether he had

personally seen the petitioner receiving the money, he replied in

negative. Learned counsel submits that in such circumstance the

disciplinary authority has wrongly held the charges proved and

punished the petitioner.

12. Learned counsel submits that the appeal preferred by the

petitioner was rejected by the Chairman-cum-Managing Director of the

BSPHCL without considering any of the grounds raised by the

petitioner in appeal. The appellate order is a non-speaking and un-

reasoned order. In course of hearing, a question has also arisen as to

whether the Chairman-cum-Managing Director of the BSPHCL is dully

empowered and competent to hear an appeal against the order of the

Managing Director of the SBPDCL.

Submission on behalf of the Respondents

13. The SBPDCL has filed a counter affidavit. It is stated

that the disciplinary proceeding has been conducted in accordance with

the principles of natural justice and fair procedure has been adopted by

the authorities. It is submitted that the petitioner has been rightly

awarded the punishment and the same is commensurate with the status

of his guilt.

14. Learned counsel for the respondents has submitted that

the disciplinary authority has differed with the inquiry report, he made

available his note of dissent to the petitioner and on receipt of his reply

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the same was duly considered, therefore, no fault may be found with the

same. It is further submitted that pendency of a criminal case for an

indefinite period cannot be a ground to postpone final decision in a

disciplinary proceeding.

15. Learned counsel has made available the copy of the

relevant pages of the official file in which the disciplinary matters

relating to the disciplinary proceeding has been dealt with.

16. Learned counsel for the respondents has placed before

this Court a copy of the resolution of the Board of Directors of the

BSPHCL passed on its 24

th

meeting held on 25.03.2014. By this

resolution, the Chairman of the concerned company/ subsidiary has

been declared as the appellate authority against the decision of the

Managing Director of the subsidiary company awarding punishments

in disciplinary proceeding. Learned counsel has placed before this

Court a copy of the Board’s resolution dated 25.03.2014 and a copy of

the notification no. 6 dated 23.03.2013 by which the Board of all the

undertakings were constituted and notified. Learned counsel for the

respondents submits that in terms of the scheme of 2012, under

paragraph 6.8, the Holding Company is entitled to frame regulations

governing conditions of the personnel transferred to the subsidiary

companies under the scheme. It is stated that presently no regulation in

terms of paragraph 6.8 has been framed by the BSPHCL.

17. Learned counsel has produced a copy of the Standing

order issued by the erstwhile ‘Board’ under the Industrial Employment

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(Standing Orders) Act 1946 (hereinafter referred to as the ‘Act of

1946’). It is submitted that this standing order is still applicable in

absence of any other service rule/regulation in terms of paragraph 6.8 of

the scheme of transfer.

Considerations

18. Having heard learned counsel for the petitioner and

learned counsel for the respondents as also on perusal of the records,

this Court finds that in this case the petitioner was proceeded against

under Clause 29 B of the erstwhile Board’s Standing Order. The

provision reads as under:-

“29 B. MISCONDUCT

Subject to the other provisions of this Standing

Order the following acts, or omissions by a

workman shall be deemed to be misconduct for

which he shall be liable to dismissal, discharge,

stoppage of promotions for a specified period

reduction in rank or transfer without T.A.

(a) Wilful insubordination or disobedience, whether

alone or in combination with others, of any lawful

or reasonable order of a superior authority.

(b) Striking work either singly or in combination

with other or inviting others to strike work in

contravention of the provision of any law or rule

having the force of law.

(c) Theft, fraud or dishonestly in connection with

the Board’s property or business.

(d) Taking, abetting or giving bribes or any illegal

gratification whatsoever.

(e) Habitual late attendance, absence without leave

or without sufficient cause or overstayal after the

expiry of leave without sanction or in anticipation

of approval.

(f) Carrying on private moneylending, or anyother

private business.

(g) Fighting and rioutuous or disorderly or indecent

behaviour or conduct.

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(h) Habitual drunkness.

(i) Habitual slackness or habitual negligence or

gross negligence in the performance of duty.

(j) Habitual indiscipline

(k) Smoking while on duty in places where it is

prohibited in writing.

(l) Causing damage to any property of the Board

wilfully or through negligence.

(m) Refusal to work on another job which does not

affect emoluments and status adversely.

(n) Gambling.

(o) Acceptance of gifts from subordinate employees.

(p) Giving intentionally false information regarding

his name, age, father’s name, qualification or

previous service or anyother related matter.

(q) Conviction in any Court for any offence of

moral turpitude.

(r) Leaving work without permission.

(s) Habitual breach of rules of the Standing orders

and repeated acts of misdemeanours.

(t) Resorting to habitual go-slow tactics or habitual

delaying of production.

(u) Refusal to go on transfer or failing to comply

with transfer orders.

(v) Submission of application for employment else

where directly.

(w) Holding lottery for the disposal of his property.

(x) Biddings on the occasion of disposal of Board’s

property.

(y) Maligning superior officer.

(z) A workman found to be in possession of

pecuniary resources or property disproportionate to

his known sources of income, for which he cannot

satisfactorily account unless the contrary is proved,

be presumed to have been guilty of misconduct in

the discharge of official duty and shall be dealt with

accordingly.”

19. There is no submission on behalf of the petitioner that

the Standing Order of the erstwhile Board would not be applicable to

him, therefore, this Court proceeds to rely upon the Standing Order

copy of which has been placed before this Court.

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20. Clause 29 B of the Board’s Standing Order defines

misconduct for which the punishment of dismissal, discharge, stoppage

of promotions for specified period, reduction in rank or transfer without

T.A. may be imposed. Sub-Clause (d) includes taking, abetting or giving

bribes or any illegal gratification whatsoever within the meaning of word

“misconduct”. Thus, in a case allegedly involving taking bribe or

illegal gratification, the concerned employee/workmen shall be

proceeded against with disciplinary action as per Clause 30 of the

Board’s Standing Order. Clause 37 of the Board’s Standing Order

provides that all workman shall have the right to appeal against any

order of any authority to the next superior officer.

21. When this Court goes through the transfer scheme, it is

found that paragraph ‘6’ and its various sub-paragraphs dealt with the

transfer of personnel and other related issues. This Court, therefore,

deems it just and proper to re-produce paragraph ‘6’ and it’s sub-

paragraphs as under:-

“6. Transfer of Personnel. - 6.1 The transfer of

personnel shall be subject to the terms and conditions

contained in section 133 and other applicable

provisions of the Act.

6.2 The personnel of the Board, involved in

Distribution, Generation, Transmission and Common

Services including at the Head Office, on the

effective date, will stand transferred to the holding

company.

6.3 Subject to sub-clause 6.2, the personnel on the

effective date shall stand further transferred from

Holding Company as under: -

(i) All the personnel working with the Transmission

function and activities of the Board shall be deemed

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to be transferred to Bihar State Power Transmission

Company Limited.

(ii) All the personnel working with the Generation

function and activities of the Board shall be deemed

to be transferred to Bihar State Power Generation

Company Limited.

(iii) All the personnel working with the Distribution

function and activities of the Board shall be deemed

to be transferred to South Bihar Power Distribution

Company Limited and North Bihar Power

Distribution Company Limited.

6.4 The detailed scheme and terms and conditions for

transfer of group of employees in Transmission,

Generation, Distribution and common services is

given in Schedule-F.

6.5 On such transfer and subject to the provisions of

the Act and other provisions of this Scheme the

personnel shall form a part of the services of the

Transmission, Generation and Distribution

companies, as the case may be, but their rank, scale

of pay and inter-se seniority as existing in the Board

on the effective date shall be maintained in the

holding company and the retirement benefits and

other facilities shall in no way be reduced than the

one existing in the Board on the effective date.

6.6 Notwithstanding the provisional nature of

transfer of personnel to Holding Company and

further transfer to Transmission, Generation and

Distribution companies, as per para 6.2 and 6.3

above, the personnel shall discharge the duties and

functions as may be assigned to them from time to

time by Transmission, Generation and Distribution

companies, as the case may be and the Transmission,

Generation and Distribution companies shall have the

power to exercise all administrative and disciplinary

control over such personnel transferred to them as

per this Scheme.

6.7 The transfer of personnel shall be subject to the

following conditions, namely, -

(a) That the personnel shall be governed by the Rules

and Regulations framed by the Board existing on the

effective date.

(b) The terms and conditions of the services

applicable to personnel on the effective date shall not

in anyway be less favourable than those applicable to

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them immediately before the said effective date.

Accordingly the salary, allowances and other

pecuniary benefits including terminal benefits

applicable on the effective date shall be protected and

shall not be adversely changed;

(c) All such personnel shall have continuity of

service in all respects;

(d) All benefits of service accrued before the said

effective date shall be fully recognised and taken into

account for all purposes including the payment of

terminal benefits;

(e) To any orders that may be passed by the Courts in

the proceedings pending on the said effective date in

regard to seniority or other matters concerning the

service conditions of the Personnel;

(f) Subject to this Scheme, the personnel shall cease

to be in the service of the Board and shall not assert

or claim any benefit of service not covered in the

scheme.

6.8 Subject to the Act and this Scheme, the Holding

Company shall be entitled to frame regulations

governing the conditions of personnel transferred to

the subsidiary companies under this Scheme and till

such time the existing/ (as suggested for

modification) service rules/regulations of the Board

shall apply mutatis-mutandis.

6.9 Subject to para 6.7, in respect of all statutory and

other schemes and employment related matters

including the provident fund, gratuity fund, pension,

leave encashment and any other Superannuation fund

or any other special fund created or existing for the

benefit of the personnel, the Holding Company shall

stand substituted for the Board for all purposes and

all the rights, powers and obligations of the Board in

relation to any and all such matters shall become

those of the Holding Company and the services of

the personnel shall be treated as having been

continuous for the purpose of the application of this

sub- clause.

6.10 The Holding Company shall, in consultation

with the Bihar State Power (Holding) Company

Limited, Bihar State Power Generation Company

Limited, Bihar State Power Transmission Company

Limited, South Bihar Power Distribution Company

Limited and North Bihar Power Distribution

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Company Limited, finalize the transfer to and

permanent absorption of the Personnel in the

subsidiary companies taking into account the

suitability, ability and experience of the personnel,

number and nature of the vacancies and other

relevant factors and issue appropriate orders for such

permanent absorption within the provisional period

of transfer of the Undertakings specified in Clause 9

of this Scheme.

6.11 For the purpose of sub-clause 6.10 above the

Holding Company may constitute a Committee as

specified in Schedule-F of this scheme to (a) receive

representations from the Personnel who may raise

grievances in regard to their transfer and absorption

in the subsidiary companies in terms of Schedule-F

and (b) to make recommendation on such transfer

and absorption, within such time as State

Government may specify for the purpose.

6.12 The Holding Company shall take a decision on

the transfer and permanent absorption of the

Personnel in the subsidiary companies after

considering the recommendation of the Committee

appointed for the purpose and shall issue orders for

such transfer and permanent absorption of the

Personnel.

6.13 Upon the finalization and issue of orders in

terms of the sub-clause 6.10 above, the personnel

shall form part of the services of the subsidiary

company concerned, in the post, scale of pay or

seniority in accordance with the orders that may be

issued for this purpose, without any further act, deed

or thing to be done by the State Government or the

Holding Company or the subsidiary company or the

Personnel or any other person.

6.14 The liability in respect of existing pensioners of

the Board (based on actuarial valuation as on

31.03.2011) shall be the liability of the State

Government. Further the liability, as assessed on

actuarial valuation, in respect of the retiral dues of

the existing employees, as on the effective date, to

the extent they are unfunded shall also be the liability

of the State Govt. As per actuarial valuation carried

out by registered actuary, the net present value of the

total terminal benefit liabilities is Rs.4613 Crores

(discounted at 8% per annum) out of which total

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unfunded liability is approximately Rs. 4438 Crores

as on 31.03.2011.

6.15 The unfunded liabilities accumulated in respect

of terminal benefits of the employees, covered under

State Govt.'s policies and directions, will be borne by

the State Govt. The unfunded liability upto the cut

off date will be treated as covered under State Govt.

policies and directions. The energy department will

obtain the detailed statement in respect thereof from

the Board/holding Company and will submit after

due analysis for decision of the State Govt. and

thereafter on this point the transfer scheme will be

considered final. The above unfunded terminal

benefit liability will be determined on yearly basis by

the actuary considering the impact of inflation, pay

revisions etc. After the effective date, the liability on

account of service in the subsequent periods shall be

borne by the respective successor companies. The

disbursal of terminal benefits will be through a

master trust administered by the holding company.

The contribution from the State Govt. will be paid in

advance in two installments every year i.e. by 31st

May and 30th November and the successor

companies will be contributing on monthly basis by

7th of the following month. The State Govt. and the

transferees shall be jointly and severally liable for

payments arising thereon till such notification,

establishment of master trust and proper funding.

6.16 For the purpose of this clause 6, the term:-

(i) "Existing Pensioner" means all the personnel

eligible for the pension as on the effective date of the

transfer from the Board and shall include family

members of the personnel as per the applicable

scheme, and

(ii) "Terminal Benefits" means the gratuity, pension,

dearness allowance and other applicable relief,

medical benefit, and other applicable benefits

including the right to have the appropriate revisions

in the above benefits consistent with the practice that

were prevalent in the Board.

6.17 All proceedings including disciplinary

proceedings pending against the personnel prior to

the effective date of the transfer of the personnel

from the Board to the Transferee or from such

Transferee to another Transferee, as the case may be,

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or which may relate to misconduct, lapses or acts of

commission or omission committed before the

effective date of the transfer, shall not abate and may

be continued by the relevant Transferee consistent

with the applicable service rules.

6.18 The personnel transferred to the Transferees,

shall be deemed to have entered into an agreement

with the Transferee concerned to repay loans,

advances and other sums due and perform

obligations undertaken by them to the Board which

remain outstanding as on the effective date of the

transfer for the benefit of the Transferee in the same

manner on the same terms and conditions as

contained in the arrangement with the Board.

6.19 Nothing contained in this Scheme shall apply to

personnel of the State Government or other

organisation on deputation to Board as on the

effective date but such personnel shall continue on

deputation to the concerned Transferee(s) to whose

services they are assigned on "as-is-where-is" basis

till further orders of the Transferee.

6.20 The officers and the employees of the board

after the restructuring shall have continuity of

service. Their service conditions will not be inferior

to the present service conditions and in case the

transferee companies do not fulfill any service

condition, the State Govt. guarantees and shall ensure

through holding company continuance of those

benefits. However these provisions will not be

applicable to the new employees appointed in the

transferee companies after the effective date of

restructuring.”

22. Referring to paragraph 6.8, Mr. Ojha learned counsel for

the respondents has submitted that subject to the Act and the Scheme,

the Holding Company shall be entitled to frame regulations governing

the conditions of personnel transferred to the subsidiary companies

under the scheme but it is admitted at the Bar that till date the Holding

Company has not framed any regulations governing the conditions of

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the personnel transferred to the SBPDCL. No other service

rule/regulation has been placed before this Court. In such circumstance

learned counsel has submitted that as per paragraph 6.8, till such time

the regulations are not framed, the existing service rule/regulations of

the Board shall apply mutatis-mutandis. It is, therefore, his submission

that the Standing Order which was applicable to the workman of the

erstwhile Board prior to coming into force of the transfer scheme shall

still be applicable. Simultaneously, it is his submission that the Holding

Company has come out with a resolution in it’s 24

th

meeting wherein

an appeal against the order of the Managing Director of the subsidiary

company is to be heard by the Chairman of the said Company. In this

case, it has been submitted that vide notification No. 06 dated

23.03.2013 the Board of SBPDCL has been constituted whereunder

the Chairman-cum-Managing Director of BSPHCL has been

designated as Chairman.

23. This Court has carefully perused the notification No. 06

dated 22.03.2013 and finds that the Board of SBPDCL has been

constituted in the following manner:-

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vf/klwpuk

fo|qr vf/kfu;e 2003 ds izko/kkuksa ds vkyksd esa] fcgkj jkT; fo|qr cksMZ ds iquZxBu ds fy,] fcgkj ljdkj us

viuh ladYi la[;k 999 fnukad 06-03-2012 }kjk fuEufyf[kr ikap ¼5½ ubZ dEifu;ksa dk iathdj.k dEiuh

vf/kfu;e] 1956 ds vUrxZr fd;k gS &

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i.fcgkj LVsV ikoj ¼gksfYMax½ dEiuh fy0] iVuk& ,d fu;a=d daiuh gksxh ftlds ikl vU; pkj lgk;d

daifu;ksa ds lerk iwath dk LokfeRo gksxk ,oa lgk;d dEifu;ksa ds fy, ,d fu;a=h dEiuh dh rjg dk;Z

djsxhA

ii.fcgkj LVsV ikoj Vªkaleh”ku dEiuh fy0] iVuk& lapj.k daiuhA

iii.fcgkj LVsV ikoj tsujs”ku dEiuh fy0] iVuk&mRiknu daiuhA

iv.lkÅFk fcgkj ikoj fMLVªhC;w”ku dEiuh fy0] iVuk& nf{k.k fcgkj ds fy, forj.k daiuhA

v.ukFkZ fcgkj ikoj fMLVªhC;w”ku dEiuh fy0] iVuk& mŸkj fcgkj ds fy, forj.k daiuhA

2- jkT; ljdkj us vf/klwpuk la[;k& 1436+ fnukad 29-03-2012 }kjk fo|qr vf/kfu;e] 2003 ds vUrxZr iquZxfBr

fcgkj jkT; fo|qr cksMZ ds mŸkjkf/kdkjh ubZ dEifu;ska ds izFke funs”kd eaMy dk xBu fd;k gSA mŸkjkf/kdkjh

daifu;ksa dk lapkyu okf.kfT;d :i ls djus gsrq funs”kd eaMy dh lajpuk dk foLrkj djrs gq, bu dEifu;ksa esa

vU; iw.kZdkfyd funs”kd dh fu;qfDr fd;k tkuk gSA iw.kZdkfyd funs”dksa dh fu;qfDr gsrq ik=rk] dk;Z vuqHko]

dk;Z&fooj.k] p;u@[kkst lfefr dk xBu ,oa p;u dh izfØ;k ls lacaf/kr fu;ekoyh fuEu izdkj vf/klwfpr dh

tkrh gS %&

3- ubZ daiuh ds funs kd eaMy dh lajpuk %&

”

fcgkj LVsV ikoj ¼gksfYMax½ daiuh fy0 ,oa vU; pkj lgk;d daiuh ds funs”kd eaMy dh lajpuk bl izdkj gksxh

%&

¼d½ fcgkj LVsV ikoj ¼gksfYMax½ dEiuh fy0

Ø0funs kd eaMy ,oa u, funs kdksa dh vko ;drk

” ” ”

inuke

1 iz/kku lfpo@lfpo ¼foRRk foHkkx½] fcgkj ljdkj ¼foÙk foHkkx }kjk ukfer½funs”kd ¼va”kdkfyd½

2 iz/kku lfpo @ lfpo ¼ÅtkZ foHkkx½] fcgkj ljdkj funs”kd ¼va”kdkfyd½

3 v/;{k&lg&izcU/k funs”kd ¼ubZ fu;qfDr½ v/;{k&lg&izca/k funs”kd

4 izcU/k funs”kd] fcgkj LVsV ikoj tsujs”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

5 izcU/k funs”kd] fcgkj LVsV ikoj Vªkalfe”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

6 izcU/k funs”kd] lkÅFk fcgkj ikoj fMLVªhC;w”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

7 izcU/k funs”kd] ukFkZ fcgkj ikoj fMLVªhC;w”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

8 UkbZ fu;qfDr funs”kd ¼foRr½

9 UkbZ fu;qfDr funs”kd ¼ekuo lalk/ku½

¼[k½fcgkj LVsV ikoj tsujs ku dEiuh fy0

”

Ø0funs kd eaMy ,oa u, funs kdksa dh vko drk

” ” ”

Iknuke

1 iz/kku lfpo @ lfpo ¼ÅtkZ foHkkx½] fcgkj ljdkj funs”kd ¼va”kdkfyd½

2 v/;{k&lg&izcU/k funs”kd] fcgkj LVsV ikoj ¼gksfYMax½ daiuh fy0 v/;{k

3 izcU/k funs”kd] ¼UkbZ fu;qfDr ½ izcU/k funs”kd

4 izcU/k funs”kd] fcgkj LVsV ikoj Vªkalfe”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

5 izcU/k funs”kd] lkÅFk fcgkj ikoj fMLVªhC;w”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

6 izcU/k funs”kd] ukFkZ fcgkj ikoj fMLVªhC;w”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

7 foŸk foHkkx] fcgkj ljdkj ds izfrfuf/k ¼la;qDr lfpo ls vU;wu½ funs”kd ¼va”kdkfyd½

8 UkbZ fu;qfDr funs”kd ¼foRr½

9 UkbZ fu;qfDr funs”kd ¼rduhdh½

¼x½ fcgkj LVsV ikoj Vªkalfe ku dEiuh fy0

”

Ø0funs kd eaMy ,oa u, funs kdksa dh vko drk

” ” ”

Iknuke

1 iz/kku lfpo @ lfpo ¼ÅtkZ foHkkx½] fcgkj ljdkj funs”kd ¼va”kdkfyd½

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2 v/;{k&lg&izcU/k funs”kd] fcgkj LVsV ikoj ¼gksfYMax½ daiuh fy0 v/;{k

3 izcU/k funs”kd] ¼UkbZ fu;qfDr ½ izcU/k funs”kd

4 izcU/k funs”kd] fcgkj LVsV ikoj tsujs”ku dEiuh fy0funs”kd ¼va”kdkfyd½

5 izcU/k funs”kd] lkÅFk fcgkj ikoj fMLVªhC;w”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

6 izcU/k funs”kd] ukFkZ fcgkj ikoj fMLVªhC;w”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

7 foŸk foHkkx] fcgkj ljdkj ds izfrfuf/k ¼la;qDr lfpo ls vU;wu½ funs”kd ¼vYidkyhu½

8 UkbZ fu;qfDr funs”kd ¼foRr½

9 UkbZ fu;qfDr funs”kd] ¼ifj;kstuk½

10UkbZ fu;qfDr funs”kd] ¼lapkyu½

¼?k½ ukFkZ fcgkj ikoj fMLVªhC;w ku dEiuh fy0

”

Ø0funs kd eaMy ,oa u, funs kdksa dh vko drk

” ” ”

Iknuke

1 iz/kku lfpo @ lfpo ¼ÅtkZ foHkkx½] fcgkj ljdkj funs”kd ¼va”kdkfyd½

2 v/;{k&lg&izcU/k funs”kd] fcgkj LVsV ikoj ¼gksfYMax½ daiuh fy0 v/;{k

3 izcU/k funs”kd] ¼UkbZ fu;qfDr ½ izcU/k funs”kd

4 izcU/k funs”kd] fcgkj LVsV ikoj tsujs”ku dEiuh fy0funs”kd ¼va”kdkfyd½

5 izcU/k funs”kd] lkÅFk fcgkj ikoj fMLVªhC;w”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

6 izcU/k funs”kd] fcgkj LVsV ikoj Vªkalfe”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

7 foŸk foHkkx] fcgkj ljdkj ds izfrfuf/k ¼la;qDr lfpo ls vU;wu½ funs”kd ¼vYidkyhu½

8 UkbZ fu;qfDr funs”kd ¼foRr½

9 UkbZ fu;qfDr funs”kd] ¼ifj;kstuk½

10UkbZ fu;qfDr funs”kd] ¼lapkyu½

¼?k½ lkÅFk fcgkj ikoj fMLVªhC;w ku dEiuh fy0

”

Ø0funs kd eaMy ,oa u, funs kdksa dh vko drk

” ” ”

Iknuke

1 iz/kku lfpo @ lfpo ¼ÅtkZ foHkkx½] fcgkj ljdkj funs”kd ¼va”kdkfyd½

2 v/;{k&lg&izcU/k funs”kd] fcgkj LVsV ikoj ¼gksfYMax½ daiuh fy0 v/;{k

3 izcU/k funs”kd] ¼UkbZ fu;qfDr ½ izcU/k funs”kd

4 izcU/k funs”kd] fcgkj LVsV ikoj tsujs”ku dEiuh fy0funs”kd ¼va”kdkfyd½

5 izcU/k funs”kd] fcgkj LVsV ikoj Vªkalfe”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

6 izcU/k funs”kd] ukFkZ fcgkj ikoj fMLVªhC;w”ku dEiuh fy0 funs”kd ¼va”kdkfyd½

7 foŸk foHkkx] fcgkj ljdkj ds izfrfuf/k ¼la;qDr lfpo ls vU;wu½ funs”kd ¼vYidkyhu½

8 UkbZ fu;qfDr funs”kd ¼foRr½

9 UkbZ fu;qfDr funs”kd] ¼ifj;kstuk½

10UkbZ fu;qfDr funs”kd] ¼lapkyu½

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24. The transfer scheme prescribes the role of the Chairman-

cum-Managing Director and the Managing Director which are being

reproduced hereunder for a ready reference:-

“¼d½ v/;{k&lg&izcU/k funs kd ¼lh0 ,e0 Mh0½ dk;Z fooj.k

”

v/;{k&lg&izcU/k funs”kd dh Hkwfedk bl ckr dh gS fd os fuxe dh fgr dh

ns[k&Hkky dj ;g lqfuf”Pkr djsa dh fuxe jkT; ds fo|qr {ks= dk thoUr fodkl Bksl

okf.kfT;d fl)krksa ds vk/kkj ij ,oa mu mn~ns”;ksa ds fy, djsa ftlds fy, budk l`tu fd;k

x;k gSa iw.kZdkfyd dk;kZRed funs”dksa dk dq”ky leFkZu mUgsa izkIr jgsxk v/;{k&lg&izcU/kd

funs”kd dh Hkwfedk bl izdkj gS %&

i.dkjksckj ds fy, lkefjd n`f”Vdks.k dk l`tu djuk tks laxBu dh “kfDr;ksa ls

mRlftZr gks ,oa blds izfr;ksxh ykHk ij vk/kkfjr gksA

ii.funs”kd eaMy ds lkFk dk;Z l`tu ,oa dk;Z lEikfnr djuk] tks mUgsa laxBu ds leLr

funsZ”ku ,oa vfHk”kklu esa ennxkj vkSj leFkZ gSA

iii.ekSfyd izkFkfedrk] uhfr fo’k;d ewY;] fl)kUr vkSj fopkjksa dh LFkkiuk djuk ftlls

laxBu dk lexz ifjorZu gks ,oa vkoÙkhZ laLd`fr ls lh[kus dh laLd`fr fodflr gks]

futh lgHkkfxrk ,oa lEiw.kZ laxBu esa lkefjd n`f’Bdks.k ds izfr opuc)rk dh Hkkouk

dk fodkl gksA

iv.Li’V “kklukns”k ds lkFk dk;Z djuk rkfd fuxe ds visf{kr ,oa fu/kkZfjr ekin.M tks

dk;Z pkyu] foÙkh; vkSj iz”kklfud dk;kZUo;u ls lacaf/kr gSa mUgsa gkfly fd;k tk

ldsa

v.lEc) iw.kZdkfyd funs”dksa dh enn ls] miHkksDrk dh lsokvksa mRiknu xq.kork]

rduhdh usr`Ro] cktkj Hkkxhnkjh vkSj foRrh; mik; tSlh dlkSfV;ksa ds dk;kZUo;u ls

lacaf/kr ekin.M dks cuk;s j[kuk rkfd funs”kdksa] miHkksDrkvksa vkSj lHkh vU;

nkosnkfj;ksa dh mEehnksa dks iwjk fd;k tk ldsA

vi.lHkh nkosnkjksa ls] fo”ks’kdj ljdkjh Lrjksa ij] tulEidZ LFkkfir djukA

vii.fuxe dk usr`Ro djuk rkfd miHksDrkvksa dh lsok djus ,oa fuos”k vkd`’V ds fy,

fuxe dks mi;qDr eap esa ifjofrZr fd;k tk ldsA

viii.fuxe ds funs”kd eaMy dh cSBd ,oa va”k/kkjdks adh vke lHkk dh v/;{krk djukA

ix.fuxe ds dkjksckj dks izHkko”kkyh <ax ls O;ofLFkr djuk ,oa miHkksDrk dh larqf’V ,oa

okf.kfT;d ykHk dh o`f) ds fy, laxBu dks leFkZ cukus esa mUur lEiknu ds lkFk

fujUrj ,oa LFkk;h vfHko`f) lqfuf”pr djuk lh0 ,e0 Mh0 dh iw.kZ tckonsgh gSA”

[k½ izcU/k funs kd

”

dk;Z fooj.k

izcU/k funs”kd dh Hkwfedk ;g gS fd og lEcfU/kr lgk;d dEifu;ksa ds fgrksa dh ns[kHkky

lqfuf”pr djs rkfd dEiuh jkT; ds fo|qr~ {ks= dk fujUrj fodkl lkFkZd okf.kfT;d

fl)karksa ds vk/kkj ij dj lds vkSj ftu mn~ns”;ksa ds fy, budk l`tu fd;k x;k gS

mls gkfly fd;k tk ldsA mUgsa iw.kZdkfyd dk;kZRed funs”kdksa dk dq”ky leFkZu

izkIr jgsxkA izcU/k funs”kd dh Hkwfedk bl izdkj gS %

i. funs”kd eaMy ds fu;a=.k ,oa Ik;Zos{k.k esa dEiuh ds fnu&izfrfnu dk;ksZa ds fy, ftEesnkj

gksukA

ii. laxBu ds lexz funsZ”ku ,oa “kklu esa funs”kd eaMy ds v/khu dk;Z djukA

iii. fo|qr~ mRiknu] lapj.k vkSj forj.k ij dk;Z pkyu] fu’iknu ,oa dk;Z vuqj{k.k ds ckjs

esa lapkyu vkSj fu;a=.k] eksfuVj] fujh{k.k ds fy, fofHkUu dk;kZRed iz/kkuksa ds lkFk

bUVj,DV djukA dEiuh ds lHkh rduhfd fo’k;ksa tks ;kstuk] fMtkbZu] rduhfd

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fofunsZ”ku] ifj;kstuk izfrosnu] IykaV vkSj e”khujh ds j[k&j[kko ls lacaf/kr gks] dks

gkFk esa ysuk vkSj lq>ko nsukA

iv. fo|qr~ mRiknu @lapj.k @ forj.k ¼tks fLFkfr gks½ esa ;kstuk cukus ,oa fMtkbZu

dk;Zokgh lEcU/kh O;oLFkk lfgr ifj;kstuk fu’iknu esa ekxZn”kZu djukA

v. vU; funs”kdksa ds lkFk foLRkkj ls fopkj&foe”kZ dj lHkh rduhfd fu.kZ; ds ckjs esa

izHkkfor djuk ,oa lapkfyr djuk rFkk vuqeksnu ds fy, mls cksMZ ds le{k is”k djus

ds fy, rduhfd izLrkoksa ij ,tsaMk uksV Hkh rS;kj djukA

vi. fuxe lhek ds ckgj O;fDr@ laxBu @ laLFkku ds lkFk rduhfd fo’k; esa izHkkfor

djus ds fy, ftEesnkj gksuk vkSj fuxe dh rduhfd fd;k&dykiksa ij lkoZtfud cks/k

dk;Zdze cukuk A fuxe dh vksj ls lEc} izfrLFkkuh ;k izkf/kdkjh ds lkFk rduhdh

fu.kZ; ij foe”kZ djuk vkSj lalwfpr djuk A

vii.jkT; fo|qr fofu;ked vk;ksx dh vko”;drkvksa dks iwjk djus ds fy, ,e0

vkbZ0 ,l0 (M.I.S.) laxfBr djuk A

viii.funs”kd (for) ds lkFk fopkj&foe”kZ dj dEiuh ds foÙkh; ekeyksa ij fu.kZ; ysuk A

ix.v?;{k cksMZ }kjk lkSais x;s vU; dk;kZs dk fu’iknu djuk A

vuq’kaxh dEiuh ds dkjksckj dks izHkkaodkjh ,oa iw.kZrk ls O;ofLFkr djuk izca/k funs”kd

dh lexz tokcnsgh gS vkSj miHkksDrk dh larqf’V ,oa okf.kfT;d O;ogk;Z dh o`f) ds

fy, laxBu dks lkeF;Z cukus esa fodflr dk;kZUo;u ds lkFk fujUrj ,oa LFkk;h

vfHko`f) lqfuf”pr djukAÞ

25. On perusal of the entire scheme and the notification

dated 22.03.2013, it would appear that a Chairman-cum-Managing

Director is only on the Board of the BSPHCL. In all other undertakings

including ‘SBPDCL’, the Chairman-cum-Managing Director of the

BSPHCL has been made a member of the Board of Directors with a

designation “Chairman”. The Energy Secretary/ Principal Secretary

and Managing Directors of other undertakings as also a nominee from

Finance Department and Director (Finance), Director (Project) and

Director (Operation) are the other members on the Board of SBPDCL.

26. Functions and powers of the Chairman on the Board of

all subsidiary company such as SBPDCL has not been separately

prescribed either in the scheme or in the notification. Under the

Notification dated 22.03.2013, a Managing Director acts under the

control and supervision of the Board of Directors and is responsible for

the day to day affairs of the Company. Neither the scheme nor the

Patna High Court CWJC No.12348 of 2015 dt.01-05-2023

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notification anywhere make him subordinate to the Chairman of the

Board, though he has to beside other works, dispose of the works

assigned to him by the Chairman of the Board.

27. In the given facts and circumstances, a question which

arises on the face of Clause ‘37’ of the Board’s Standing Order as to

whether the Chairman on the Board of ‘SBPDCL’ is the next superior

officer and an appeal would lie before him against any order of

Managing Director of the ‘SBPDCL’. Clause 37 of the Board’s

Standing Order clearly states that the appeal shall lie against any order

of any authority to the next superior officer.

28. This Court has been made available a resolution of the

Board of Directors of the SBPDCL passed in it’s 8

th

Meeting held on

15.06.2013 whereunder the Board of Directors has accorded approval

of certain amendments in the existing delegation of power of the

Company. As regards the suspension and awarding major punishment to

Field cadre and officers in the rank of JEE or equivalent, power has

been conferred upon MD/ED (HR) and in the remarks column it is

mentioned that “as per Rules and Regulations of the Company”. For

the purpose of awarding major and minor punishment to AEE or EEE

and equivalent again the power has been delegated to MD/ED (HR).

Though the remarks column mentions “As per Rules and Regulations of

the Company”, learned counsel for the respondent company has not

produced any Rules and Regulations save and except the Standing

Order which is said to be applicable in the case of the petitioner.

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29. This Court for the present, therefore, is not going into the

any issue with regard to any other Rules and Regulations of the

respondent Company vis a vis the legality and validity of the

resolution of the Board of SBPDCL passed in it’s meeting held on

15.06.2013. Since the competence of the Managing Director has not

been questioned by learned counsel for the petitioner, this Court

proceeds from the stage that the Managing Director of the ‘SBPDCL’

had the full power to award major punishment to the petitioner.

30. This Court has, however, difficulty in accepting the

submission of learned counsel for the respondent Company that by

virtue of the resolution of the Board of Directors of the ‘BSPHCL’, the

power of appeal would be vested in the Chairman of the subsidiary

company. No such resolution of the ‘SBPDCL’ has been placed before

this Court. There are two reasons for the same. The first reason is that

neither in the scheme nor under the notification dated 22.03.2013 there

is any concept of the Chairman on the Board of an

undertaking/subsidiary Company as a superior authority to the

Managing Director of the subsidiary company. The second reason is

that Clause 37 of the Board’s Standing order makes it crystal clear that

the appeal would lie before the superior authority. No doubt, the

Chairman-cum-Managing Director of the BSPHCL has been taken on

the Board of the subsidiary company as Chairman but that would be a

different thing. The Chairman on the Board of a company would not on

his own become the controlling and supervisory authority of the

Patna High Court CWJC No.12348 of 2015 dt.01-05-2023

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Managing Director of the Company. In the Companies Act 1956 which

was in existence on the date of issuance of the Notification dated

22.03.2013 , Section 175 provides for Chairman of meeting. Section

175 reads as under:-

“175. CHAIRMAN OF MEETING -- (1) Unless

the articles of the company otherwise provide, the

members personally present at the meeting shall

elect one of themselves to be the chairman thereof

on a show of hands.

(2) If a poll is demanded on the election of the

chairman, it shall be taken forthwith in accordance

with the provisions of this Act, the chairman elected

on a show of hands exercising all the powers of the

chairman under the said provisions.

(3) If some other person is elected chairman as a

result of the poll, he shall be chairman for the rest of

the meeting.”

31. Thus, the Chairman-cum-Managing Director of BSPHCL

coming on the Board of the subsidiary company as Chairman is entitled

to act as Chairman of the meeting but he cannot take place of the Board

of Directors under whose Control and Supervision the Managing

Director acts. It would be misnomer to address him, in absence of any

statutory sanction as the Chairman of the subsidiary company and

superior authority to the Managing Director of the subsidiary company.

32. To this Court, it is crystal clear that by virtue of

paragraph 6.8 of the scheme of Transfer, it is the Holding Company

which shall be entitled to frame regulations governing the conditions of

personnel transferred to subsidiary companies under the Scheme but

Patna High Court CWJC No.12348 of 2015 dt.01-05-2023

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such regulations are to be subject to the Electricity Act 2003 and any

subsequent amendment thereto and the Transfer Scheme. Such Rules

and Regulations which may be framed by the Holding Company must

have the approval of the Company. In the present case admittedly no

Regulations has been framed by the Holding Company and the Standing

Order is still applicable, an appeal against the order of the Managing

Director of the subsidiary company would, therefore, lie before the

Board of Directors of the subsidiary company.

Order passed by the M.D., SBPDCL

33. In the present case, the records placed before this Court

in form of the copies of the official records reveal that the Section

Officer of the SBPDCL dealt with the second show cause of the

petitioner and recorded a finding that from the facts, the charges are

completely proved against the petitioner. The Section Officer proposed

the punishment under Rule 43 (a) and (b) of the Bihar Pension Rules.

He proposed for forfeiture of 100 % Pension, Gratuity and Leave

Encashment of the petitioner and that he would not be entitled for any

payment except the subsistence allowance for the period of suspension.

The file moved through the Administrative Officer to DGM (HR). The

DGM (HR) Admin dealt the matter and recommended the file to the

General Manager (HR and Administration) with his suggestion to

impose the punishment as recommended by the Section Officer. The

Deputy General Manager (HR), however, has suggested the General

Manager (HR) that necessary order on imposing punishment upon the

Patna High Court CWJC No.12348 of 2015 dt.01-05-2023

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petitioner may be obtained from the Managing Director of the

Company. The General Manager (HR and Admin) thereafter, placed a

note to the Managing Director as under:-

“80@..+++ ls yxkrkj dk;kZy; fVIi.kh voyksduh; A

Jh ekFkqj dks VSªi dsl esa idM+k x;k Fkk A muds ekeys

dh iw.kZ leh{kk iqoZ i`’V fVIi.kh esa dh x;h gS A mUgas va”k ‘d’ ij

izLrkfor n.M dh Lohd`fr dh tk ldrh gS A”

34. Thereafter, the Managing Director simply put his/her a

short signature and the same has been taken as approval of the

punishment proposed against the petitioner. It is evident on perusal of

the records that at no point of time the Managing Director being the

disciplinary authority applied his/her independent mind to the materials

available on the record. What was suggested by a Section Officer got

approval by the Managing Director by simply putting a short signature

in the official file. This is wholly illegal, in violation of principles of

natural justice and a jurisdictional error committed by the disciplinary

authority.

Order Passed in Appeal

35. When the appeal preferred by the petitioner went to the

Chairman-cum-Managing Director of the BSPHCL, again the file

moved through the same channel. The appeal was fixed for hearing on

07.02.2015. There is no ordersheet of 0702.2015 but in one of the

ordersheets it is recorded that the matter has been heard by CMD on

07.02.2015 and the records are placed for orders. The order of the

appellate authority as communicated to the petitioner vide memo no.

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295 dated 20.02.2015 (Annexure ‘2’) would show that the appellate

authority has done only an empty formality by rejecting the appeal

without recording any reason. The appellate order simply takes note of

the beginning and end of the disciplinary proceeding, the kind of

punishment awarded by the disciplinary authority and finally concludes

in the following words:-

“Jh ekFkqj }kjk lefiZr vH;kosnu ij vihy; izkf/kdj }kjk leh{kksijkar

ik;k x;k fd dEiuh ds dk;kZy; vksn”k la0&554 fnukad 15-05-14 ds }kjk

fuxZr n.Mkns”k ;Fkksfpr gSA

vr% Jh ekFkqj ds vH;kosnu dks vLohd`r fd;k tkrk gSA”

36. The appellate order does not contain either any

consideration of the grounds raised by the petitioner nor to the

submissions of the petitioner. The appellate order is a totally un-

reasoned and non-speaking order.

37. This Court finds that while the disciplinary authority

completely abdicated his/her power and discharged his/her

responsibility of the disciplinary authority by simply putting a short

signature below the notes suggesting the kind of punishment to be

imposed against the petitioner, the appellate authority has not at all

considered the appeal of the petitioner. For these reasons, the impugned

orders as contained in Annexure ‘1’ and ‘2’ respectively to the writ

application are liable to be set-aside and those are accordingly, set-

aside.

38. The matter is remitted to the Managing Director,

SBPDCL for a fresh consideration and passing of an appropriate order

which must be based on an independent consideration on the basis of

Patna High Court CWJC No.12348 of 2015 dt.01-05-2023

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the materials available on the record. Let such decision be taken within

a period of four months from the date of receipt/production of a copy of

this order.

39. This writ application is allowed to the extent

indicated hereinabove.

avin/-

(Rajeev Ranjan Prasad, J)

AFR/NAFR AFR

CAV DATE 28.04.2023

Uploading Date 01.05.2023

Transmission Date