# UPPCL & Ors v. Anil Kumar Sharma & Anr

- **Citation:** (2021) 11 ILRA 714
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Case number:** Special Appeal Defective No. 646 of 2021
- **Bench:** Manoj Misra, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uppcl-ors-v-anil-kumar-sharma-anr-46652
- **Pages:** 20

## Headnote

A. Service Law - Pension - Departmental
proceedings after retirement - Civil Service
Regulations - Article 351-AA & 919-A -
Electricity Supply Act, 1948 - Section 5 - Uttar
Pradesh Electricity Reforms Transfer Scheme,
2000 - Uttar Pradesh State Electricity Board
(Officers and Servants) (Conditions of Service)
Regulations 1975 - Uttar Pradesh Electricity
Reforms Act, 1999 - Sub-sections (1) and (2) of
Section 23 - U.P. Rajya Vidyut Utpadan Nigam
Absorption Regulations, 2006 - Constitution of
India - Article 300-A.
11 All. UPPCL & Ors. Vs. Anil Kumar Sharma & Ors.
715
The learned Judge rightly proceeded with the
matter without there being proper reliefs
sought
(i.e.
quashing
the
departmental
proceedings or challenging the suspension
order dated 22.11.2018) in the petition and
without calling for a detailed counter affidavit - It is
evident from the record that the issue of payment of
pension and other retiral dues or the entitlement
thereof is intrinsically linked to the departmental
proceedings that were initiated against the petitionerrespondent. The validity of the sanction accorded by
the MD of the UPPCL is an issue of jurisdiction which
goes to the root of the matter and, therefore, the
consideration of the case on the limited aspect of the
validity of the sanction is appropriate. Whether the
cause to sanction existed, could only have been seen
after analyzing whether departmental proceedings
could be deemed to have been instituted in view of
the Explanation to Article 351-A of the CSR.

The appellant-respondents had filed a short counter
affidavit and a compilation of several documents
pertaining to the departmental proceedings and
judgments of various courts. It has not been pointed
out what other document was required to be 'filed' for
adjudication apart from what was already on record
of the writ petition. Under the circumstances, the
learned Judge had correctly proceeded to decide the
case on the basis of material on record. (Para 11, 14,
15)

B. The Managing Director of the UPPCL was
competent
to
sanction
departmental
proceedings under the provisions of Article
351-A of the CSR - The learned Judge held that on
the date of his retirement on 31.12.2018, the
petitioner was neither under suspension nor any
chargesheet was served upon him or issued to him as
the suspension order dated 22.11.2018 stood revoked
vide order dated 28.12.2018 and as the chargesheet
admittedly was served after the date of retirement,
thus, no proceeding could have been initiated against
the petitioner except with sanction of the 'Governor'
and after satisfying the test of clause (i) to (iii) of
proviso (a) to Article 351-A of the CSR. (Para 8)

The authority to the 'Governor' has been given by
means of a proviso. However, Article 309 of
Constitution,
itself
enables
Acts
of
the
appropriate
Legislature
to
regulate
the
recruitment, and conditions of service of
persons appointed, t

## Text

_Characters 0–39,914 of 77,071. This is a partial read: ask again with offset=39914 for what follows._

714 INDIAN LAW REPORTS ALLAHABAD SERIES
employees also would be entitled to the same
scale of pay as given to the said Shri Shukla,
although they have been found to be not fit
therefor. Educational qualification was made the
basis for a valid classification in the matter of
payment of salary in a particular scale of pay by
the Wage Board itself. Only in the year 1989,
such a classification was obliterated. The first
respondent had been granted the benefit of the
recommendations of the Third Wage Board also.
It was a matter of policy decision for the
Corporation to consider as to whether a
particular category of employees should be
taken outside the purview of the pay scales
recommended by the Wage Board and place
them in a higher scale of pay. We, therefore,
cannot accept the contention of Shri Dwivedi
that only because no such qualification was
prescribed at the time of recruitment, the
classification made on that basis would be bad in
law. Even otherwise the said contention is not
correct as the scale of pay was determined by the
award of the Wage Board."

11. In view of what has been observed
above, it is abundantly clear that classification
based upon higher qualification for allowing
higher salary to an employee performing similar
work would be permissible. It is otherwise a
matter of policy for the State to prescribe as to
what would be the scale of pay admissible to an
employee based upon his qualification. The
Rules of 2011 are otherwise not under challenge.
Since the classification based on higher
qualification for prescribing different pay scale
to employees performing similar work is
permissible, the respondents would clearly be
justified in denying equal pay to petitioners at
par with those Instructors, who possess
qualification of three year diploma. The mere
fact that such distinction did not exist in the
earlier rules of 1983 would also not constitute
any valid basis to challenge prescription of
different wages for employees performing
similar work on account of variation in their
qualification. It is otherwise not the case of the
petitioners
that
their
salary
is
reduced
consequent upon substitution of earlier rules
with the Rules of 2011.

12. For the reasons recorded above, the
rejection of petitioners' claim for parity in pay
scale is neither found to be arbitrary nor
violative of principles of ''equal pay-for equal
work' and consequently the challenge laid to the
order dated 27th May, 2014 fails. The writ
petition, accordingly, is dismissed. No order is
passed as to costs.
----------
(2021)11ILR A714
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.10.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE JAYANT BANERJI, J.

Special Appeal Defective No. 646 of 2021

UPPCL & Ors. ...Appellants
Versus
Anil Kumar Sharma & Anr. ...Respondents

Counsel for the Appellants:
Sri Abhishek Srivastava, Sri Krishna Agarawal,
Sr. Advocate Sri G.K. Singh

Counsel for the Respondents:
C.S.C., Sri R.K. Mishra

A. Service Law - Pension - Departmental
proceedings after retirement - Civil Service
Regulations - Article 351-AA & 919-A -
Electricity Supply Act, 1948 - Section 5 - Uttar
Pradesh Electricity Reforms Transfer Scheme,
2000 - Uttar Pradesh State Electricity Board
(Officers and Servants) (Conditions of Service)
Regulations 1975 - Uttar Pradesh Electricity
Reforms Act, 1999 - Sub-sections (1) and (2) of
Section 23 - U.P. Rajya Vidyut Utpadan Nigam
Absorption Regulations, 2006 - Constitution of
India - Article 300-A.
11 All. UPPCL & Ors. Vs. Anil Kumar Sharma & Ors.
715
The learned Judge rightly proceeded with the
matter without there being proper reliefs
sought
(i.e.
quashing
the
departmental
proceedings or challenging the suspension
order dated 22.11.2018) in the petition and
without calling for a detailed counter affidavit - It is
evident from the record that the issue of payment of
pension and other retiral dues or the entitlement
thereof is intrinsically linked to the departmental
proceedings that were initiated against the petitionerrespondent. The validity of the sanction accorded by
the MD of the UPPCL is an issue of jurisdiction which
goes to the root of the matter and, therefore, the
consideration of the case on the limited aspect of the
validity of the sanction is appropriate. Whether the
cause to sanction existed, could only have been seen
after analyzing whether departmental proceedings
could be deemed to have been instituted in view of
the Explanation to Article 351-A of the CSR.

The appellant-respondents had filed a short counter
affidavit and a compilation of several documents
pertaining to the departmental proceedings and
judgments of various courts. It has not been pointed
out what other document was required to be 'filed' for
adjudication apart from what was already on record
of the writ petition. Under the circumstances, the
learned Judge had correctly proceeded to decide the
case on the basis of material on record. (Para 11, 14,
15)

B. The Managing Director of the UPPCL was
competent
to
sanction
departmental
proceedings under the provisions of Article
351-A of the CSR - The learned Judge held that on
the date of his retirement on 31.12.2018, the
petitioner was neither under suspension nor any
chargesheet was served upon him or issued to him as
the suspension order dated 22.11.2018 stood revoked
vide order dated 28.12.2018 and as the chargesheet
admittedly was served after the date of retirement,
thus, no proceeding could have been initiated against
the petitioner except with sanction of the 'Governor'
and after satisfying the test of clause (i) to (iii) of
proviso (a) to Article 351-A of the CSR. (Para 8)

The authority to the 'Governor' has been given by
means of a proviso. However, Article 309 of
Constitution,
itself
enables
Acts
of
the
appropriate
Legislature
to
regulate
the
recruitment, and conditions of service of
persons appointed, to public services and posts
in connection with the affairs of the Union or of
any State, which is subject to the provisions of
the Constitution of India and qualified by the
proviso. (Para 30)

In terms of sub-clause (10) of clause 6 of the
Transfer Scheme, the Regulations of 1975 would,
mutatis mutandis, apply to the personnel of
UPPCL/PVVNL. Accordingly, the reference to the
'Governor' of the State appearing in Article
351-A of the CSR, would, in the case of the
appellant-respondents, be referable to the
'Managing Director' of the UPPCL. (Para 23, 26)

On record is the so-called 'sanction' accorded by the
MD of UPPCL to the departmental proceedings to be
initiated against the petitioner-respondent. Taking
into account the provisions of the Supply Act of 1948,
the Regulations of 1975, the Reforms Act and the
Transfer Scheme, it is clear that UPPCL and PVVNL
are separate corporate entities and are entitled to
conduct their business by means of duly passed
resolutions in the meetings of the Board of Directors.
It is reiterated that the UPPCL is empowered to frame
Regulations relating to conditions of service of its
personnel under sub-clause (10) of Clause 6 of the
Transfer Scheme and till such time the Regulations
are not framed, the Regulations framed by the
erstwhile Board (including the Regulations of 1975)
shall mutatis mutandis apply.

Therefore, the finding of the learned Judge cannot be
sustained, whereby it was held that the resolution
authorising the Managing Director to exercise the
powers relating to Article 351-A of the CSR cannot be
accepted as the CSR can be modified/amended by
amendment in the CSR in respect of the service in the
State and not by issuance of Circulars or Company
resolutions. (Para 32)

Thus, under the circumstances, there was no
occasion to obtain sanction of the Governor
and no question of delegation of power by the
Governor in favour of the MD of the UPPCL for
the MD to exercise his discretion to sanction in
exercise of power Article 351-A of the CSR. The
sanctioning authority specified as 'Governor' in the
CSR can be read as 'Managing Director' of a
corporation. (Para 34)

C. Initiating the departmental proceedings
against the petitioner-respondent in view of
Article 351-A of the CSR was not justified - The
alleged 'sanction' for departmental proceedings
716 INDIAN LAW REPORTS ALLAHABAD SERIES
granted by the Managing Director of UPPCL
under Article 351-A of the CSR is no sanction in
the eyes of law and is, therefore, declared
invalid. However, this cannot preclude the appellantrespondents
from
instituting
departmental
proceedings after obtaining a valid sanction if so
permissible in law. But till a valid sanction is granted
for departmental proceedings, the directions issued
by the learned Judge for payments of retiral dues,
etc. calls for no interference. (Para 50, 51)

1) A legal fiction is created only for some
definite purpose and it is to be limited for the
purpose for which it was created and should
not be extended beyond that legitimate field.
The appellant-respondents have proceeded on the
presumption that once the respondent-petitioner was
placed under suspension during the period of his
service then, even if the suspension is revoked prior
to retirement, the provisions of Explanation (a) of the
CSR would enure to their benefit. In our opinion, this
presumption and interpretation is fallacious. For
Explanation (a) of the CSR to be applicable the
incumbent must be under suspension from a date
prior to his retirement and continue to be under
suspension till the date of his retirement. (Para 39,
40)

The learned Judge was justified in holding that
on the date of his retirement on 31.12.2018,
the
respondent-petitioner
was
not
under
suspension and, so as a corollary, departmental
proceedings could not be deemed to have been
instituted against the respondent-petitioner.
(Para 41)

2) The validity of "sanction" depends on the
applicability
of
mind
by
the
sanctioning
authority to the facts of the case as also the
material
and
evidence
collected
during
investigation, it necessarily follows that the
sanctioning authority has to apply its own
independent
mind
for
the
generation
of
genuine satisfaction whether prosecution has
to be sanctioned or not. (Para 46, 47, 48)

Clause (a) (i) of the first proviso to Article 351-A of
the CSR places a complete bar on institution of
departmental proceedings without the sanction of the
Governor (in the present case, the MD of UPPCL).
That is to say that the authority has to apply its
mind and deliberate on the matter, on the basis
of the facts appearing on record, whether to
grant sanction or not, for institution of
departmental proceedings.

Therefore, the import of the word 'sanction' so
appearing actually indicates a decision authorising
departmental proceedings after consideration of the
material on record and application of mind thereon. It
does not mean that the sanctioning authority has to
see the material and evidence threadbare and pass
judgment. The authority has only to be satisfied that
the basis for departmental proceedings exist entailing
sanction. (Para 44)

Therefore, in the present case, the MD was required
to consider, prima facie, not only the charges framed
and the evidence available, but also whether the
departmental proceedings were in respect of an event
which took place not more than four years before the
institution of the proceedings {Clause (a) (ii) of the
first proviso to Article 351-A of the CSR}. The
contents of the first charge-sheet reveal that it
pertains to an alleged mis-conduct of the petitioner at
the time of his initial appointment. Therefore, there
cannot be any valid sanction to the departmental
proceedings in respect of the first charge-sheet
against the petitioner. The consolidated notings
pertained to both the charge-sheets and a single
signature of the sanctioning authority appears at the
end, which without anything further, cannot imply
sanction. (Para 44)

Sanction of the departmental proceeding, does
not ex-facie disclose that the MD had applied
its mind to the material on record in the light of
the first proviso to Article 351-A of the CSR and
had sanctioned departmental proceedings. The
sanction as envisaged in Article 351-A of the CSR
dons the MD of UPPCL with the mantel of the
Governor to accord sanction to such departmental
proceedings after noticing that the ingredients for
institution of such departmental proceedings exist.
Here the MDhas neither accepted the proposal for
departmental enquiry nor has approved or sanctioned
the departmental enquiry. He had just put his
signature on the page, which by itself cannot be
taken as grant of sanction in view of the fact situation
of the instant case. (Para 49)

D. Words and Phrases - 'authority of law' -
While strictly interpreting the phrase 'authority of law'
as used in Article 300-A of the Constitution of India,
in view of the fact that Article 351-A of the CSR
prescribes for deprivation of property of a citizen, and
11 All. UPPCL & Ors. Vs. Anil Kumar Sharma & Ors.
717
in that sense it is an 'ex-proprietary' legislation, it was
held that any liberal interpretation given to a
law which is basically 'ex-proprietary' in nature
would be in clear violation of Article 300-A of
the Constitution of India and would militate
against the spirit of that Article. (Para 8)

'mutatis-mutandis' - The expression "mutatismutandis", itself implies applicability of any provision
with necessary changes in points of detail. The rules
which are adopted, as has been done in the present
case, make the principles embodied in the rules
applicable and not the details pertaining to particular
authority or the things of that nature. (Para 25)

'sanction' - In the ninth edition of the Black's Law
Dictionary the verb 'sanction' is defined as to approve,
authorize or support. (Para 44)

Appeal dismissed. (E-4)

Precedent followed:

1. Prahlad Sharma Vs St. of U.P. ors., (2004) 4 SCC
113 (Para 12)

2. Rajeev Kumar Jauhar Vs St. of U.P., (2007) 2 AWC
1726 (Para 12)

3. Bengal Immunity Co. Ltd. Vs St. of Bihar, AIR 1955
SC 661 (Para 39)

4. State of Bihar & anr. Vs P.P. Sharma, IAS & anr.,
1992 Supp (1) SCC 222 (Para 46)

5. Manshukhlal Vithaldas Chauhan Vs State of
Gujarat, (1997) 7 SCC 622 (Para 47)

6. State (Anti-Corruption Branch), Govt. of NCT of
Delhi & anr. Vs Dr. R.C. Anand & anr., (2004) 4 SCC
615 (Para 48)

Precedent distinguished:

1. Dr. Hira Lal Vs St. of Bihar & ors., (2020) 4 SCC
346 (Para 13)

2. St.of U.P. & ors. Vs Z.U. Ansari, (2016) 16 SCC 768
(Para 12, 28)

Present appeal challenges judgment and order
dated 23.07.2021, passed by learned Single
Judge.
(Delivered by Hon'ble Jayant Banerji, J.)

1. The application seeking exemption for
filing the certified copy of the order is allowed.

2. The appellant-respondents have filed
this intra court appeal against the judgement and
order of the learned Judge dated 23.7.2021
passed in Writ-A No. 6544 of 2021 (Anil Kumar
Sharma Vs. State of U.P. and others) by means
of which the writ petition has been allowed
holding that denial of pension to the petitioner as
well
as
continuation
of
departmental
proceedings against him by taking recourse to
Article 351-A of the Civil Service Regulations1
is arbitrary.

Background of the case:

3. The aforesaid writ petition was filed
seeking directions to the respondents to pay the
retiral benefits like Gratuity, G.P.F., Leave
Encashment etc. and arrears of pension
alongwith interest and to pay the regular pension
to the petitioner as and when it is due. Further
relief was sought for granting provisional
pension.

4. The case of the respondent-petitioner in
the writ petition was that he was initially
appointed on 4.6.1974 on a permanent regular
post of Patrolman and was lastly promoted to the
post of Junior Engineer in the year 2014. He
retired on 31.12.2018 from the post of Junior
Engineer from the office of the Superintendent
Engineer, Vidyut Vitaran Mandal, Amroha, after
attaining the age of superannuation. He did not
receive any retiral benefits/dues like GPF,
gratuity, leave encashment, pension or even
provisional pension. It was submitted that while
in service he was suspended by means of the
order dated 22.11.2018 passed by the Managing
Director of the Paschimanchal Vidyut Vitaran
Nigam Limited2 on a solitary complaint but, by
an order dated 28.12.2018, he was reinstated in
718 INDIAN LAW REPORTS ALLAHABAD SERIES
service and on 31.12.2018, he retired. Prior to
his suspension, a two member committee was
constituted for inquiring into the matter, which
found no evidence against him. It was stated that
post retirement, two chargesheets were served
on the petitioner on 7.11.2019 against which the
petitioner submitted his reply/explanation on
21.12.2019. On 22.5.2020, the statement of the
petitioner was recorded by the inquiry officer,
who submitted his report to the higher authority,
who was not satisfied with the inquiry report and
a re-inquiry was ordered. The petitioner was
again asked to submit his statement along with
evidence and his statement was again recorded
on 23.9.2020. It was stated that the proceedings
were pending before the Authorities and he was
not being paid his retiral dues despite repeated
representations.

5. From perusal of the order-sheet of the
writ petition, it appears that on the request of the
parties, on 15.7.2021, the learned Judge directed
the case to be listed on the next day, that is,
16.7.2021. On 16.7.2021, after hearing the
learned counsel for the petitioner and the learned
counsel appearing for the respondent nos. 2 and
3, a part of the order was dictated but,
subsequently, on request made by the learned
counsel for the respondents the learned Judge
permitted them to make a mention in the open
Court on 22.7.2021. On 22.7.2021, the matter
was taken up on board, the learned counsel were
heard and the case was directed to be listed on
the next date (23.7.2021) for further arguments.
On 23.7.2021, after hearing the learned counsel
for the parties, the impugned judgement and
order was passed.

6. From the record of the writ petition it
appears that on 16.7.2021, a compilation running
into 112 pages was filed on behalf of the
respondent nos. 4 to 6 enclosing copies of
various judgements, inquiry reports, suspension
order
and
records
of
the
departmental
proceedings/correspondence. It also appears
from the record that that a 'short counter
affidavit' running into 162 pages was filed on
behalf of the respondent nos. 4 to 6.

7. Before the learned Judge, it was
submitted that on the basis of the preliminary
inquiry, the petitioner was placed under
suspension by an order dated 22.11.2018. The
suspension order was revoked on 28.12.2018
specifying that it was being revoked on the
account of retirement of the petitioner which
was on 31.12.2018. It was submitted by the
respondents therein that sanction was accorded
by the Managing Director for continuing
disciplinary proceedings against the petitioner.
By a letter dated 1.5.2019, a show cause notice
was served on the petitioner along with two
chargesheets. That in terms of circular of the
Board dated 21.6.1991 and a resolution of the
Board
of
Directors
dated
2.8.2007,
the
Managing Director was authorized to grant
sanction as envisaged under Regulation 351-A
of the Civil Service Regulations. It was
submitted therein that the petitioner was not
entitled to payment of pension and at best he
could
apply
for
provisional
pension
in
accordance with Article 351-AA and 919-A of
the CSR.

8. The learned Judge, while noticing that
the main prayer of the petitioner being for
payment of pension, observed that it was
intrinsically linked to the pending disciplinary
proceedings against the petitioner and the same
could not be decided without considering the
merit of the pending disciplinary proceedings
viz.-a-viz. the bar created under Article 351-A of
the CSR. The Court, further, observed that the
validity of the departmental proceedings were
considered in the light of the specific defence
taken by the counsel for the respondents
justifying the withholding of the pension in view
of the pending departmental proceedings. While
strictly interpreting the phrase 'authority of law'
as used in Article 300-A of the Constitution of
11 All. UPPCL & Ors. Vs. Anil Kumar Sharma & Ors.
719
India, in view of the fact that Article 351-A of
the CSR prescribes for deprivation of property
of a citizen, and in that sense it is an 'expropriatory' legislation, the learned Judge held
that any liberal interpretation given to a law
which is basically 'ex-propriatory' in nature
would be in clear violation of Article 300-A of
the Constitution of India and would militate
against the spirit of that Article. The learned
Judge, thus held that on the date of his
retirement on 31.12.2018, the petitioner was
neither under suspension nor any chargesheet
was served upon him or issued to him as the
suspension
order
dated
22.11.2018
stood
revoked vide order dated 28.12.2018 and as the
chargesheet admittedly was served after the date
of retirement, thus, no proceeding could have
been initiated against the petitioner except with
sanction of the Governor and after satisfying the
test of clause (i) to (iii) of proviso (a) to Article
351-A of the CSR.

9. Further, discarding the contention of the
learned counsel for the respondents that in view
of the relevant circulars and the resolution of the
Board of Directors of the company, the word
'Governor' specified under Article 351-A of the
CSR was substituted by the 'Board' and
thereafter by the 'Managing Director', the
learned Judge held that the CSR has been
framed in pursuance of the powers conferred
under Article 309 of the Constitution of India
and can be modified/amended only by the
amendment in the CSR and not by issuance of
circular or by a company resolution and,
therefore, the sanctioning authority specified as
'Governor' in the CSR cannot be read as
'Managing Director' of a corporation except
when it is amended in accordance with law. The
learned Judge, thus, held that no disciplinary
proceeding was instituted against the petitioner
prior to the date of his retirement and no
sanction of Governor as required under Article
351-A of the CSR exists for initiating
disciplinary proceedings against the petitioner
after
his
retirement.
A
mandamus
was
accordingly issued.

10. We have heard Shri G.K. Singh,
learned Senior Advocate assisted by Shri
Abhishek Srivastava and Shri Krishna Agrawal
for the appellants; Shri R.K. Mishra for the
respondent no. 1; and the learned Standing
Counsel for the proforma respondent no. 2 and
perused the record.

Submissions of the learned counsel:

11. The contention of the learned Senior
Advocate
appearing
for
the
appellantrespondents is that in the writ petition, there was
no prayer for quashing the departmental
proceedings or challenging the order dated
22.12.2018, whereby, the suspension of the
petitioner was conditionally revoked. Therefore,
the Court ought not to have dwelt on the issue of
the validity of the sanction and the enquiry
proceeding itself, without calling upon the
appellant-respondents to file a comprehensive
counter affidavit. He contends that the order of
suspension was passed and the charge-sheet was
issued by the competent authority and that due
sanction as envisaged under Article 351-A of the
CSR was granted by the Managing Director of
the Uttar Pradesh Power Corporation Limited3.
He contends that there was adequate material on
record to demonstrate that PVVNL is a company
subsidiary to UPPCL and incorporated under the
Companies Act, 1956. UPPCL was itself
incorporated as a company pursuant to Section
13 of Chapter IV of the Uttar Pradesh Electricity
Reforms Act, 19994. It is contended that licence
has already been granted by the Uttar Pradesh
Regulatory Commission (established under
Section 3 of the Reforms Act) to PVVNL under
sub-section (5) of Section 13 of the Reforms
Act. It is stated that U.P. State Electricity Board
was constituted under Section 5 of the
Electricity Supply Act, 19485. Under Section 23
of the Reforms Act, the Board's properties,
720 INDIAN LAW REPORTS ALLAHABAD SERIES
powers, functions, duties and personnel were
transferred and vested in the State Government
pursuant to sub-section (1) thereof. Thereafter,
the same have been re-vested by the State
Government in the UPPCL in accordance with a
Scheme known as the Uttar Pradesh Electricity
Reforms
Transfer
Scheme,
20006.
It
is
contended that the Transfer Scheme was framed
pursuant to sub-section (4) of Section 23 of the
Reforms Act. Under sub-section (7) of Section
23 of the Reforms Act, the terms and conditions
of the transferred personnel are to be determined
in accordance with the Transfer Scheme. It is
contended that the petitioner-respondent was
transferred and absorbed in UPPCL in terms of
the Transfer Scheme. That under sub-clause (10)
of clause 6 of the Transfer Scheme, till such
time Regulations governing the conditions of
service of personnel transferred under the
Transfer Scheme are framed, the existing service
conditions of the Uttar Pradesh State Electricity
Board7 shall mutatis mutandis apply. It is
contended
that
the
Uttar
Pradesh
State
Electricity Board (Officers and Servants)
(Conditions of Service) Regulations, 19758
govern the conditions of service of officers and
servants
of
the
Board
and
since
fresh
Regulations
are
yet
to
be
framed,
the
Regulations of 1975 govern the service
conditions of the personnel employed under the
UPPCL and PVVNL. He contends that in view
of the Regulation of 1975, the authority
competent to sanction departmental proceedings
post retirement of the petitioner-respondent is
the Managing Director of UPPCL. That after the
constitution of the UPPCL and the vesting of
properties etc. of the Board by the State
Government under the provisions of the
Reforms Act, the UPPCL and the PVVNL,
being
Companies
incorporated
under
the
Companies Act, are corporate and independent
entities entitled to take decisions and delegate
powers by way of resolutions passed in meetings
of the Board of Directors of the respective
Companies. He contends that no statutory
amendment is required in Article 351-A of the
CSR for replacing the word "Governor" by the
"Managing Director". It is his further contention
that the order revoking the suspension of the
petitioner-respondent
on
28.12.2021
was
conditional and given the provisions of Article
351A of the CSR, since the petitionerrespondent was placed under suspension prior to
date of his retirement, departmental proceedings
were deemed to have been instituted against the
petitioner-respondent prior to his retirement. It
is, therefore, contended that on both counts, the
learned Judge has not decided the writ petition
correctly.

12. In support of his contentions, the
learned counsel has relied upon judgments of the
Supreme Court in the case of Prahlad Sharma
vs. State of U.P. & Ors.9 and State of Uttar
Pradesh & Ors. vs. Z.U. Ansari10 as well as a
Division Bench judgment of this Court in
Rajeev Kumar Jauhar vs. State of U.P.11.

13. Shri R.K. Mishra, learned counsel for
the petitioner-respondent has vehemently argued
that under the facts and circumstances of the
present case, the pension of the petitionerrespondent
cannot
be
withheld
and
administrative Circulars and resolutions do not
have the force of law and as such the learned
Judge has correctly decided the writ petition. In
support of his argument, the learned counsel has
referred to a judgment of the Supreme Court in
the case Dr. Hira Lal vs. State of Bihar &
Ors.12.

Discussion:

14. While considering the judgment passed
by the learned Judge, we deem it fit to proceed
with the discussion on the following points :-

(i) Whether the learned Judge ought
not to have proceeded with the matter without
there being proper reliefs sought in the petition
11 All. UPPCL & Ors. Vs. Anil Kumar Sharma & Ors.
721
and without calling for a detailed counter
affidavit?

(ii) Whether the Managing Director of
the
UPPCL
was
competent
to
sanction
departmental proceedings under the provisions
of Article 351-A of the CSR? And,

(iii) Whether the appellant-respondents
were justified in initiating the departmental
proceedings against the petitioner-respondent in
view of Article 351-A of the CSR?

Point No.(i)

15. As far as the first point is concerned, it
is evident from the record that the issue of
payment of pension and other retiral dues or the
entitlement thereof is intrinsically linked to the
departmental proceedings that were initiated
against the petitioner-respondent. The validity of
the sanction accorded by the Managing Director
of the UPPCL is an issue of jurisdiction which
goes to the root of the matter and, therefore, the
consideration of the case by the learned Judge
on the limited aspect of the validity of the
sanction is appropriate. Whether the cause to
sanction existed, could only have been seen after
analyzing whether departmental proceedings
could be deemed to have been instituted in view
of the Explanation to Article 351-A of the CSR.
As stated above, the appellant-respondents had
filed a short counter affidavit and a compilation
of
several
documents
pertaining
to
the
departmental proceedings and judgements of
various courts. It has not been pointed out what
other document was required to be 'filed' for
adjudication apart from what was already on
record
of
the
writ
petition.
Under
the
circumstances, the learned Judge had correctly
proceeded to decide the case on the basis of
material on record.

Point No.(ii)

16. Coming to the second point regarding
the competence of the Managing Director of
UPPCL
to
sanction
the
departmental
proceedings, the background leading to the
constitution of the corporate entities, namely,
UPPCL and PVVNL is required to be seen.

17. Under the Supply Act of 1948, the
State Electricity Boards were required to be
constituted under Section 5 thereof. The term of
office and conditions of service of the members
of the Board were specified in Section 8 and
removal or suspension of members of the Board
was provided in Section 10. The Board was
ordained to be a body corporate, by the name
notified, under Section 12 having perpetual
succession and a common seal with power to
acquire and hold property both movable and
immovable and could sue and be sued by the
said name. Section 79 of the Supply Act of 1948
enabled the Board, by notification in the official
gazette, to make Regulations with respect to the
matters specified therein, sub-section (c) of
which reads as follows:-

"79. Power to make regulations.-
The Board may, by notification in the Official
Gazette, make regulations not inconsistent with
this Act and the rules made thereunder to
provide for all or any of the following matters,
namely : -

(a) .......................

(b) .......................

(c) the duties of officers and other
employees of the Board, and their salaries,
allowances and other conditions of service;

...............................

................................

................................"

18. The Regulations of 1975 were made in
exercise of the power conferred by sub-section
(c) of Section 79 of Supply Act of 1948 on the
Board. Regulation 2 of the Regulations of 1975
reads as follows:-

"2. All matters relating to conduct and
discipline
(including
matters
relating
to
722 INDIAN LAW REPORTS ALLAHABAD SERIES
punishment) and to termination, reversion and
compulsory retirement of persons appointed:

(a) to the Board,

(b) Government servants who were
originally employed under the State Government
and after resignation were absorbed in the
service of the Board in pursuance of State
Government
order
No.3670-E/71-XXIII-PB,
dated July 1, 1971, the Board may initiate or
recommence any disciplinary proceedings in
respect of their acts and omissions during the
period when they were employed under the State
Government except in cases where disciplinary
proceedings were finally concluded on merits
while they were so employed under the
Government.

(c) Such servants of the Board as are
workman
employed
in
any
industrial
establishment under the control of the Board,
notwithstanding any thing contained in any other
law for the time being in force;

shall be regulated mutatis mutandis
and subject to any other regulation for the
time being inforce (including Regulations 1-A
and above and 3, 4 and 6 below) by rules and
orders for the time being in force and
applicable to corresponding categories of
Government Servants under the rule making
control of the Governor of Uttar Pradesh
with the substitution of references in such
rules
to
the
Governor
or
the
State
Government by reference to the Board."
(emphasis supplied)

19. Relevant provisions of Section 23 of
the Reforms Act are as follows:-

"23.
Transfer
of
the
Board's
properties, powers, functions, duties and
personnel. - (1) On and from the date specified
in a transfer scheme, prepared and notified by
the State Government, to give effect to the
objects of this Act, hereinafter referred to as the
appointed date in this Act, all properties, and all
interests, rights and liabilities of the Board
therein shall vest in the State Government.

(2) The properties, interest, rights and
liabilities vested in the State Government under
sub-section (1), shall be revested by the State
Government, in the Power Corporation and in a
generating company in accordance with the
transfer scheme so notified along with such
other property, interest, rights and liabilities of
the State Government, as may be specified in
such scheme, on such terms and conditions as
may be determined by the State Government.

............

(4) The State Government may, after
consultation with the generating company or the
power corporation, hereinafter referred to in this
section as transferor, may, require transferor to
draw up a transfer scheme to vest in a person
hereinafter referred to in this section as
transferee, any of the functions including
distribution function, property, interest, right or
liability which may have been vested in the
transferor under this section and notify the same
as statutory transfer scheme under this Act. The
transfer scheme to be notified under this subsection shall have the same effect as the transfer
scheme under sub-section (2).

..............

(7) The State Government, may provide
in any of the transfer schemes framed under this
section for the transfer of personnel to the Power
Corporation or a company subsidiary to the Power
Corporation or a generating Company, on the
vesting of properties, rights and liabilities in the
Power Corporation or a company subsidiary to the
Power Corporation or a generating company, as a
part of the undertakings transferred under this
section and on such transfer the personnel shall
hold office or service under the Power Corporation
or a company subsidiary to it or a generating
company, as the case may be, on terms and
conditions that may be determined in accordance
with the transfer scheme subject however to the
following namely :
11 All. UPPCL & Ors. Vs. Anil Kumar Sharma & Ors.
723

(a) terms and conditions of service of
the personnel shall not be less favourable to the
terms and conditions which were applicable to
them immediately before the transfer;

(b) the personnel shall have continuity
of service in all respects; and

(c) all benefits of service accrued
before the transfer shall be fully recognised and
taken into account for all purposes including the
payment of any or all terminal benefits :

Provided
that,
notwithstanding
anything contained in any other law for the time
being in force, and except as provided in the
transfer scheme and in this Act, the transfer shall
not confer any right on the personnel so
transferred to any compensation or damages :

Provided further that the posts in the
Board of all the personnel whose services are to
be so transferred shall stand abolished with
effect from the date of transfer.

Explanation. - For the purposes of this
section and the transfer scheme, the expression
"personnel" means all persons who on the
appointed date are the employees of the Board
and who under the transfer scheme are given the
option to join service under the control of the
transferee."

20. In exercise of powers conferred under
sub-sections (1) and (2) of Section 23 of the
Reforms Act, the Transfer Scheme was framed.
Under sub-clause (h) of Clause 2 of the Transfer
Scheme, the transferree has been defined to mean
the UPPCL, the U.P. Rajya Vidyut Utpadan
Nigam Limited13 and the U.P. Jal Vidyut Utpadan
Nigam Limited, in whom the undertaking or
undertakings are vested in terms of the provisions
of sub-sections (2) and (7) of Section 23 of the
Reforms Act. With regard to transfer of personnel,
sub-clause (1) of clause 6 of the Transfer Scheme
makes it subject to the terms and conditions
contained in sub-section (7) of Section 23 of the
Reforms Act. Sub-clause (5) of Clause 6 of the
Transfer Scheme reads as follows:-

"The personnel classified in ScheduleG shall transferred to and absorbed in UPPCL
on as is where is basis, namely, that they will
continue to serve in the place where they are
posted on the date of the transfer and they will
become an employee of UPPCL."

21. Schedule-G of the Transfer Scheme
names the Units wherein the personnel of the
specified offices of the Board alongwith all
personnel of subordinate offices and Units of the
Board would stand transferred to UPPCL on the
date of the transfer.

22. Sub-clause (10) of Clause 6 of the
Transfer Scheme reads as follows:-

"Subject to the provisions of the Act
and this Scheme, the Transferree shall frame
regulations governing the conditions of service
of personnel transferred to the transferee under
this Scheme and till such time, the existing
service conditions of the Board shall mutatis
mutandis apply."

23. On consideration of the aforesaid
provisions of the Supply Act of 1948,
Regulations of 1975, Reforms Act, and the
Transfer Scheme, it is evident that the conditions
of service of officers and servants of the Board
and the UPPCL/PVVNL are regulated by the
Regulation of 1975 which is in force as provided
under sub-clause (10) of Clause 6 of the
Transfer Scheme framed under the Reforms Act,
and, by rules and orders for the time in force and
applicable to the corresponding categories of
government servants under the rule making
control of the Governor of Uttar Pradesh with
the substitution of references in such rules to the
Governor or the State Government by reference
to the Board / UPPCL / PVVNL.

24. It is pertinent to mention here that in
the Electricity Act, 2003, the Reforms Act is
724 INDIAN LAW REPORTS ALLAHABAD SERIES
saved by virtue of sub-section (3) of Section 185
thereof.

25. The term ''mutatis mutandis' has been
explained by the Supreme Court in the case of
Prahlad Sharma (supra). In that case before the
Supreme Court, challenge was made to a
judgment and order passed by the High Court
which had allowed the writ petition preferred by
the appellant. The Managing Director of the
U.P. State Agro Industrial Corporation had
imposed the penalty of dismissal against
Prahlad Sharma. The appellate authority of the
Corporation had partly allowed the appeal and
ordered reinstatement with observations. Against
the order of the appellate authority directing
reinstatement, the Corporation invoked the
revisional power of the State by filing a revision
under Rule 13 of the Government Servant
(Discipline and Appeal) Rules, 199914 which
was allowed.