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Chandra Sen Sharma Vs. Superintending Engineer and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 33 of 1963
Judge
Reported inAIR1966All232; [1967(14)FLR229]; (1966)IILLJ841All
ActsConstitution of India - Article 311; Electricity Department Operating-staff Service Rules, 1955 - Rule 5
AppellantChandra Sen Sharma
RespondentSuperintending Engineer and ors.
Appellant AdvocateS.S. Bhatnagar and ;G.D. Dubey, Advs.
Respondent AdvocateShanti Bhushan, Adv.
DispositionPetition allowed
Excerpt:
service - termination - article 311 of constitution of india - petitioner appointed as meter reader by superintendent engineer and removed by executive engineer - removal by executive engineer is in exercise of his individual discretion and executive engineer had no authority in law to discharge the petitioner - held, removal order of petitioner is in controvention of article 311 and must be quashed. - .....1951. in june 1959 he was promoted as a junior meter tester and transferred to the office of the executive engineer, hydel division at rampur. subsequently, it appears that in july 1962 he was transferred to budaun as sub station attendant. during the period 1959 to july 1962 the petitioner made various complaints against the sub-divisional officer, executive engineer and other officers of the department to the higher authorities alleging that they had been misusing their official position for deriving personal advantages at the cost of the department and had been misapplying its funds and resources to their personal benefits. copies of some of the aforesaid complaints are attached to the petition. in august 1962 the petitioner was elected president of the union of the employees. 4. on.....
Judgment:
ORDER

H.C.P. Tripathi, J.

1. This writ petition is directed against an order of the Executive Engineer, Hydro Electric Division, Budaun, terminating the petitioner's services as Sub-Station Attendant under him with effect from 30th November 1962,

2. The undisputed facts of the case which are relevant to the questions in controversy may be stated briefly.

3. By an order, dated 3rd of December 1951 passed by the Superintending Engineer, Hydel (Ganga) Circle, Roorkee, the petitioner was appointed as an officiating Meter Reader, Hydel Division, Bulandshahr and he joined service as such on the 12th of December, 1951. In June 1959 he was promoted as a junior Meter Tester and transferred to the office of the Executive Engineer, Hydel Division at Rampur. Subsequently, it appears that in July 1962 he was transferred to Budaun as Sub Station Attendant. During the period 1959 to July 1962 the petitioner made various complaints against the Sub-Divisional Officer, Executive Engineer and other Officers of the Department to the higher authorities alleging that they had been misusing their official position for deriving personal advantages at the cost of the Department and had been misapplying its funds and resources to their personal benefits. Copies of some of the aforesaid complaints are attached to the petition. In August 1962 the petitioner was elected President of the Union of the Employees.

4. On 21st of September 1962; Sri B. B. Lal, I.C.S., Commissioner and Secretary, Irrigagation and Power, U. P., addressed a D. O. to the Chief Engineer, Hydel, Lucknow, in which he inter alia observed: 'it appears that Sri Chandra Sen Sharma behaved in a most irresponsible and undignified manner in participating in, and perhaps leading, a public procession demonstrating certain grievances against fellow public servants of the Police Department' ....... and desired that 'he should besuspended from service immediately. A formal charge sheet should be drawn up against him and disciplinary proceedings should be taken to determine whether he should not be removed from service for this gross misdemeanoui.' He also gave a direction that 'the Enquiring Officer and others dealing with the departmental proceedings should be careful in observing all the rules and regulations dealing with such proceedings and should ensure that no technical or legal flaw is allowed to take place such as may vitiate the proceedings.'

5. On November 27, 1962, Sri V. D. Seth, Superintending Engineer, Hydel Ganga Circle Alfgarh, addressed a confidential D. O. (Annexure D to the counter affidavit) to Sri C. P. Nigam, Executive Engineer, Hydro Electric Division, Budaun, enquiring from him as to whether any disciplinary proceedings had already been started against the petitioner or not and if not then directing him to take 'necessary action forterminating his service by giving him one month's pay in lieu of notice as per terms and conditions applicable to the temporary Government servant.'

6. On 1st of December, 1962 Sri C, P. Nigam, Executive Engineer, passed the impugned order which runs as follows:--

'The services of Sri Chandra Sen Sharma Sub-Station Attendant are hereby terminated with effect from 30-11-1962 A. N. since no longer required.'

7. Learned counsel for the petitioner has challenged the validity of the aforesaid order on a variety of grounds. Learned counsel contends that it is not an innocuous order of discharge rather it is punitive in character which leaves a stigma on the future career of the petitioner and has been passed without complying with the provisions of Article 311 of the Constitution of India. In this connection reliance was placed on the communication addressed by Sri B. B. Lal to the Chief Engineer, Hydel Lucknow. It has been argued that the petitioner owns a spotlessly clean record of service and was at one stage even promoted to a higher post but as he had sent communications to the higher authorities pointing out various illegalities, improprieties and corrupt practices indulged in by certain officers of the Department and as he had been elected President of the Employees' Union, he is being penalised for his trade union activities and not because he was found unfit for the post, and as such the order is mala fide in character. Lastly, it has been pointed out that as the petitioner had been initially appointed by the Superintending Engineer, the Executive Engineer had no authority in law to pass the impugned order discharging him from service.

8. On the other hand, Mr. Shanti Bhushan, earned Senior Standing Counsel, has strenuously contended that the decision to discharge the petitioner from service was taken at the highest level and it will be too much to presume that that decision was arrived at with mala fide intentions. He has argued that at the time when the petitioner was discharged from service he was holding the post of Sub-Station Attendant, whose appointing authority is the Executive Engineer and, therefore, he was entitled to pass the impugned order. In any case, it has been contended, that the decision to terminate the services of the petitioner was taken by the Superintending Engineer and the Executive Engineer only performed the ministerial act by passing the order as directed by him. Learned counsel has argued that as the impugned order is not founded on an allegation or misconduct against the petitioner, then even if his misconduct might have formed the motive of the order, it cannot be characterised as punitive, because it does not leave any stain or stigma on him. It has been argued that no grievance can be made against an order on the ground of misconduct being the motive which had impelled the authorities to pass the order unless it also forms the foundation of the order.

9. It is admitted that the petitioner was appointed in 1951 as a Junior Meter Tester bythe Superintending Engineer. It is also admitted that the order terminating his services has been passed by the Executive Engineer but it is pleaded that he has done so under the directions of the Superintending Engineer. The argument is that the decision to terminate the services of the petitioner was arrived at by the Superintending Engineer and the Executive Engineer has only performed the ministerial act of communicating that decision in his writing to the petitioner. I do not find any substance in these arguments.

10. The impugned order as such does not indicate that the decision to dispense with the services of the petitioner is not that of the Executive Engineer but is only in pursuance of an order passed by the Superintending Engineer. In terms it is an order passed by the Executive Engineer in exercise of his individual discretion

11. In the case of Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16 It was held that

'public order publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself, ........ . . . . . .

Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.'

12. In the light of these observations it is difficult to accept the contention that though in terms the order flows from the Executive Engineer, it should be held to have been passed in pursuance of the directions given by the Superintending Engineer.

13. The other contention raised on behalf of the respondents that as the petitioner was holding the post of Sub-Station Attendant for which the appointing authority under the rules is the Executive Engineer, the impugned order could have been passed by him is also not tenable. When the petitioner was appointed by the Superintending Engineer, the rule 5 of the Electricity Department Operating Staff Service Rules, 1955 relied upon for this argument was not in force. Moreover, initially he was appointed as a Junior Meter Tester for which even now under the aforesaid rule the Superintending Engineer remains the appointing authority The fact that the petitioner was transferred as Sub-Station Attendant subsequently will have no effect so far as the question of determination of the appointing authority is concerned. In this view of the matter also, it must be held that the Executive Engineer had no authority in law to pass the impugned order discharging the petitioner from service, and the impugned orderbeing in contravention of Article 311 of the Constitution must be quashed.

14. In view of my above finding, it is not necessary to consider whether the impugned order is a simple order of discharge or punitive in character. It may, however, be noticed here that the aforesaid impugned order was passed after Sri B. B. Lal, Commissioner and Secretary, Irrigation and Power, U. P., had addressed a communication to the Chief Engineer, directing him to see that disciplinary proceedings are started against the petitioner in view of certain allegations made against him for his having lea a public procession demonstrating certain grievances against the Police Personnel of Gulaothi Police Station in the district of Aligarh.

15. The petition is allowed with costs andthe order dated 1-12-1962 passed by the Executive Engineer, Budaun (Annexure N to theaffidavit) terminating the petitioner's services isquashed.


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