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2022 Supreme(Gau) 779
IN THE HIGH COURT OF GAUHATI, (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Michael Zothankhuma, J.
Smti. Bijaylakhmi Laskar Dutta, W/o Dr. Bijoy Kr. Dutta - Petitioner
Versus
The Assam Power Distribution Company Limited, Represented by its Chairman-cum-Managing Director (CMD) - Respondents
W.P.(C.) No.3757 Of 2020
Decided On : 15-11-2022
For the Petitioner:Mr. K.N. Choudhury, Senior Advocate, Mr. D.J. Das Advocate.
For the respondents: Mr. N. Deka SC, APDCL.
Point of Law: In terms of Regulations 10(1) Every officer of Board shall discharge duties assigned to him with integrity, loyalty, and promptitude, and carry out all lawful orders of his superiors in respect of work allotted to him.
Headnote:
Electricity Act, 2003 - Section 126 - Assam State Electricity Board (General Service) Regulations (for Officers), 1960 - Regulations 10.2(a)(iii), 1(b), 1(c), (1), (2), 3(iii), (1) - Employee - Penalty of Stoppage of all Annual Increments - Stoppage of Increment till Retirement - Prayed for setting aside order issued by respondent no.3, by which petitioner has been imposed with penalty of stoppage of all annual increments i.e. date of her superannuation, besides non-consideration of petitioner for promotion during continuation of such penalty – It is seen that disciplinary authority can impose penalty of stoppage of increment for a specific period on an employee found guilty of mis-conduct. Para 29
Finding of the Court:
Assuming, a delinquent officer, who is in his/her thirties or forties is imposed with a penalty of stoppage of increment till his retirement - In the view of this Court, stoppage of increment till retirement in such a case would be unreasonable and same is not contemplated to be included within fold of Regulation 10(2)(a)(iii) of 1960 Regulations - Also, there is no provision in Regulations, barring consideration of an employee for promotion during continuation of such penalty - Besides above, there is nothing in pleadings to show that there is any money that is to be recovered from petitioner and as such, observation made by respondent No. 3 in impugned Order, regarding recovery of money from petitioner’s pensionary benefits has no bearing or relevance in this case - Petitioner has however been imposed penalty of stoppage of all increments till petitioner’s retirement - This Court finds that stoppage of all increment till retirement of petitioner is not in consonance with Regulation 10.2(a)(iii) of 1960 Regulations and as such, disproportionate and needs to be revisited by Disciplinary Authority - Penalty is accordingly set aside - Matter is remanded back to respondent authorities to re-consider case of petitioner and impose a penalty lesser than penalty of stoppage of all increments till her retirement.
Result: Petition disposed of.
JUDGMENT :
1. Heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. D.J. Das, learned counsel for the petitioner. Also heard Mr. N. Deka, learned Standing Counsel for the respondent nos.1 to 3, APDCL.
2. The petitioner in this writ petition has prayed for setting aside the impugned order dated 27.01.2020 issued by the respondent no.3, by which the petitioner has been imposed with the penalty of stoppage of all annual increments till 29.02.2024, i.e. the date of her superannuation, besides non-consideration of the petitioner for promotion during continuation of such penalty. Further, in the event of non-recovery of the penalty in the service tenure due to any other factor, the same was to be recovered from petitioner’s admissible terminal benefits.
3. The petitioner who is working in the Assam Power Distribution Company Limited (APDCL) as Assistant General Manager (AGM), was alleged to have installed the old electricity meter in her residence, by taking down the new electricity meter put up by the APDCL, without the knowledge and permission of the APDCL. On getting to know of the same, the respondents conducted an enquiry. Due to the petitioner changing the new digital electricity meter with the old electricity meter without the approval and permission of the APDCL, the petitioner was issued a provisional assessment bill for unauthorized use of electricity under Section 126 of the Electricity Act, 2003 (hereinafter referred to as “Act of 2003”). The petitioner thereafter paid the electricity charge in terms of the provisional assessment bill dated 19.03.2016.
4. Thereafter the respondents issued charge-sheet dated 09.06.2016 to the petitioner, wherein she was asked to submit her written statement of defence against the following charges framed against her :-
“Charge No.1 – Theft, fraud and dishonesty in connection with the business of the Company and its property.
Charge No.2 – Causing wilful damage to the Company’s goods/Revenue.
Charge No.3 – Breach of the ASEB officer’s (Conduct) Regulation, 1982.”
5. The petitioner submitted her written statement of defence dated 24.06.2016, stating that the old electricity digital meter no.012248 was replaced by the respondents by a new electricity digital meter and subsequent thereto, the petitioner found that there was excessive consumption of electricity, in comparison to the consumption recorded in the old electricity meter. Despite the petitioner making complaints to the APDCL regarding the excessive electricity consumption recorded in the new electricity meter, no action was taken with respect to the alleged malfunctioning new electricity meter. Being annoyed, the petitioner changed the new electricity digital meter with the old electricity meter, which was left lying in her residence. The prayer of the petitioner, in her written statement of defence, was that the charges established against her should be dropped, as she did not wilfully change the new electricity digital meter, but had done the same without having any intention to cause any loss of revenue to the respondents.
6. After the departmental proceedings were concluded, wherein the petitioner was found guilty of the charges framed against her, she was imposed the penalty of stoppage of all annual increments till her date of superannuation, with a further condition that she would not be considered for promotion during the continuation of such penalty.
7. The petitioner’s counsel submits that the petitioner having paid the penalty charges provided in the provisional assessment bill in terms of Section 126 of the Act of 2003, the petitioner could not have been given a subsequent penalty through a departmental proceeding, as the same amounted to double jeopardy. He submits that the changing of the new electricity meter by the petitioner, was an act done by the petitioner, as a consumer of electricity and the same could not be said to be a mis-conduct done in the course of her duty, as an officer of the APDCL. He submit
