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PETITIONER: ELECTRICITY EMPLOYMENT UNION

       Vs.

RESPONDENT: UNION OF INDIA AND OTHERS

DATE OF JUDGMENT:       29/08/2000

BENCH: V.N.KHARE, S.N.PHUKAN

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       JUDGMENT

     PHUKAN.  J.

     These  three appeals are directed against the judgment dated 17th July 1995 of the Central Administrative Tribunal, Chandigarh.  Three applications filed before the Tribunal by the  Electricity Employment Union, Shri Bal Krishan and shri Harjinder Singh Brar were disposed of by the common judgment as  the  question of fact and law were same.   The  Tribunal dismissed  all  the  three   applications  and  hence  these appeals.

     By the Punjab Recoganization Act, 1966 (for short ’the Act’)  the erstwhile State of Punjab was reorganised and the sucessor  States  were States of Punjab and  Haryana,  Union Territories  of  Chandigarh  and   Himachal  Pradesh,  which subsequently  became a State.  The Punjab State  Electricity Board  continued  to function in the areas in which  it  was functioning  before  the  reorganisation  of  the  State  of Punjab.   Subsequently  a new State Elactricity  Board  (for shortt  ’Board’)  was constituted by the successor State  of Punjab  and  it  is  not disputed that the  members  of  the appellant  Electricity  Employment  Union   and  other   two appeallants  were  employeees of the erstwhile  Board.   The claim  of the present appellants is that as on the date  the successor  State  of  Punjab was formed  they  were  working within  the  geographical limits of the Union  Territory  of Chandigarh, their services were deemed to have been allotted to  the said Union Territory by operation of the  provisions of  the  Act.   It  may be stated that  Union  Territory  of Chandigarh  did  not constitute a separate Board  under  the Electricity  Supply  Act of 1948 and functions of the  Board were   being   carried  on  by   the   department   of   the administration.   The  Tribunal  did  not  accept  the  said contentions and held that by virtue of the provisions of the Act  their  services  were allotted to the  Board  and  were working   on  deputation  under   the  Union  Territory   of Chandigarh.

     We have heard Mr.  P.P.Rao, learned senior counsel for the  appellants and Ms.  Kamini Jaiswal, learned counsel for the respondents.

     For appreciating the contention of the parties, we may refer  to  the  relevant  provisions of the  Act.   For  the

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present purpose, parts VI, VII & IX of the Act are relevant.

     Part  VI of the Act deals with apportionment of assets and liabilities of the erstwhile State of Punjab.

     Part  VII  deals with certain Corporations.  Sec.   67 which is relevant for our purpose and is quoted below:-

     "67  Provisions  as to certain Corporations - (1)  The following  bodies  corporate  constituted for  the  existing State of Punjab, namely:-

     (a)  the State Electricity Board constituted under the Electricity Supply Act 1948;  and

     (b)  the  State  Warehousing  Corporation  established under the Warehousing Corporations Act, 1962.

     shall,  on  and  from the appointed day,  continue  to function  in  those  areas  in respect of  which  they  were functioning  immediately  before  that day  subject  to  the provisions  of  this section and to such directions  as  may from time to time be issued by the Central Govt.

     (2)  Any directions issued by the Central Govt.  under sub-section  (1) in respect of the Board or the  Corporation may  include a direction that the Act under which the  Board or the Cjorporation was constituted shall in its application to  that  Board or Corporation, have effect subject to  such exceptions  and  modifications as the Central Govt.   thinks fit.

     (3)  The  Board  or  the Corporation  referred  to  in sub-section (1) shall cease to function as from and shall be deemed  to be dissolved on the 1st day of November, 1967, or such  earlier  date  as  the Central  Govt.   may  by  order appoint,  and  upon such dissolution its assets, rights  and liabilities  shall  be appooortioned between  the  successor States  in  such  manner as may be agreed  upon  among  them within  one  year  of the dissolution of the  Board  or  the Corporation as the case may be or if no agreement is reached in such manner as the Central Govt.  may by order determine. (emphasis supplied)

     Corporation :  and if such a Board or a Corporation is so  constituted  in  any of the successor State  before  the dissolution  of the Board or the Corporation referred to  in sub-section (1).

     (a)  provision  may  be made by order of  the  Central Govt.  enabling the new Board or the new Corporation to take over  from  the existing Board or Corporation all or any  of its  undertakings  assets,  rights and liabilities  in  that State and

     (b)  upon  the  dissolution of the existing  Board  or Corporation  any  assets rights and liabilities which  would otherwise  have  passed  to  that  State  by  or  under  the provisions of sub-section (3) shall pass to the new Board or new Corporation instead of to that State."

     In  Part  IX  legislature   has  made  provisions  for allocation  of  members  of  All India  Services  and  other services  who were serving in connection with the affairs of the  erstwhile  State  of Punjab.  It will be  pertinent  to

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reproduce relevant provisions, namely section 82, 83 and 84.

     "82  Provisions  relating to other Services (1)  Every person  who immediately before the appointed day is  serving in  connection  with  the affairs of the existing  State  of Punjab  shall on and from that day provisionally continue to serve  in connection with the affairs of the State of Punjab unless  he  is required by general or special order  of  the Central Govt.  to serve provisionally in connection with the affairs of any other successor State.

     (2)  As  soon as may be after the appointed  day,  the Central  Govt.  shall by general or special order  determine the  successor  State to which every person referred  to  in sub-section (1) shall be finally alloted for service and the date with effect from which such allotment shall take effect or be deemed to have taken effect."

     "83.   Provisions as to continuance of officers in the same  posts  -  Every  person  who  immediately  before  the appointed  day  is holding or discharging the duties of  any post  or  office  in  connection with  the  affairs  of  the existing State of Punjab in any area which on that day falls within  any  of the successor States shall continue to  hold the same post or office in that successor State and shall be deemed,  on and from that to have been duly appointed to the post  or  office  by  the Govt.   of  or  other  appropriate authority in that successor State:

     Provided  that nothing in this section shall be deemed to  prevent a competent authority on or after the  appointed day  from  passing  in  relation to such  person  any  order affecting his continuance in such post or office."

     "84.   Power of Central Govt.  to give directions- The Central  Govt.  may give such directions to the State  Govt. of Punjab and Haryana and to the Administrators of the Union Territory  of Himachal Pradesh and Chandigarh as may  appear to  it  to be necessary for the purpose of giving effect  to the  foregoing  provisions of this Part and the State  Govt. and the Administrators shall comply with such directions."

     The  Administrative Tribunal held that the  allocation of  the employees of the erstwhile State of Punjab among the successor  States  would be governed by sub-section  (3)  of Sec.   67  of  the Act.  Relying on the  documents  produced before  the  Tribunal by the respondents.  it was held  that there  was an agreement among the successor States regarding such  allocation  including  the present appellants  and  by virtue  of  the said agreement the present  appellants  were allocated  to the Board and they were allowed to continue to work  on  deputation  under   the  administration  of  Union Territory  of Chandigarh.  It is not disputed that erstwhile Punjab  state  Electricity Board was dissolved on  2nd  May, 1967  as  required under sub-section (3) of Sec.  67 of  the Act   and,  therefore,  rejected   the  contentions  of  the appellants  that  the Central Govt.  would issue  directions for allotment of the employees under sub-section (3) of Sec. 67.

     The  Administrative Tribunal held that the  allocation of  the employees of the erstwhile State of Punjab among the successor  States  would be governed by sub-section  (3)  of Sec.   67  of  the Act.  Relying on the  documents  produced before  the  tribunal by the respondents, it was  held  that

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there  was an agreement among the successor States regarding such  allocation  including  the present appellants  and  by virtue  of  the said agreement the present  appellants  were allocated  to the Board and they were allowed to continue to work  on  deputation  under   the  administration  of  Union Territory  of Chandigarh.  It is not disputed that erstwhile Punjab  State  Electricity Board was dissolved on  2nd  May, 11967 and the present Board was constituted on the same day. According  to the Tribunal, the above agreement of allotment of  the  employees were arrived at within one year from  the above date i.e.  2nd May, 1967 as required under sub-section (3)  of  Sec.   67  of the Act and  therefore  rejected  the contentions  of the appellants that the Central Govt.  could issue  directions  for  allotment  of  the  employees  under sub-section (3) of Sec.  67.

     First point to be decided is whether allocation of the services  of  the  employees of the erstwhile  Punjab  State Electricity  Board was to be done under Sec.  67 as held  by the  Tribunal or under Sec.  82 of the Act or deemed to have been  allocated to Union Territory of Chandigarh under other provisions  of the Act, as urged by Mr.  Rao, learned senior counsel for the appellants.

     The Union Territory of Chandigarh is a successor State as defined in Sec.  2(m) read with Sec.  2(n) of the Act.

     Part  VI  of  the  Act  as  stated  above  deals  with apportionment  of  assets and liabilities of  the  erstwhile State   of  Punjab.   This  part   is  not  applicable   for apportionment  of  assets  and liabilities of  the  existing Punjab  State  Electricity  Board,  as  there  is   specific provision  for  this purpose viz.  Sec 67 and  moreover  the Board has a separate legal entity.

     According  to  sub-section  (3) of Sec 67 of  the  Act assers, rights and liabilities of the erstwhile Punjab State Electricity  Board  shall be appointioned between  successor States  in such manner as may be agreed upon whthin one year of  the date of dissolution of the erstwhile Board,  failing which   Central   Govt.    was    empowered   to   determine apportionment  of  such assets, rights and liabilities.   As there  is  no  other  specific  provision  in  the  Act  for allocation of the services of the employees of the erstwhile Punjab   State  Electricity  Board,   whether   under   this sub-section such allocation could be done?

     This  question  was considered by Delhi High Court  in Mohd,  Yakub  versus The Union of India and Others AIR  1971 Delhi 45.  A Division Bench of Delhi High Court referred the following two questions to the Full Bench, anmely:-

     "(1)  Whether  the  employees  of  the  Punjab   State Electricity Board are persons serving in connection with the affair  of  the Punjab Statee who could be allocated to  the successor States under Sec.  82 of the Punjab Reorganisation Act.

     (2)   Whether   the  employees  of  the   said   Board constituted  its assest or liabilities which were liable  to be   apportioned   between  the   successor   States   under bub-sections  (3)  and  (4)  of   Sec.   67  of  the  Punjab Recoganisation Act."

     The  Full  Bench  replied the question No.  2  in  the

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affirmative.   The  Full  Bench speaking through  the  Chief Justice  Khanna  (as  he  was   then)  considered  the  word ’liability’  occurring  in sub-section (3) of Sec.  67  with reference to the dictionary meaning and held as follows:

     "Keeping the above connotation of the word "liability" in view, we have no doubt in our mind that the employment of the  employees  of the Electricity Board did constitute  the liability  of  the Electricity Board.  The services  of  the employees  of the Electricity Board like respondents 4 to  6 having not been terminated by the Board they had right to be retained  in  the  employment  of the Board  and  this  fact created  a corresponding liability of the Board to keep them in  employment.  This liability in terms of sub-section  (3) of  Section  67 of the Punjab Reorganisation Act, had to  be apportioned between the successor States as has been done in the present case."

     The  contention raised that the word liability as used in  sec 67 has reference to only those liabilities which are mentioned  in  part VI of the Act, was rejected.   The  word liable  referred to in that part are of bublic debts, refund of  taxes  collected in deposits provident fund pension  and those arising out of contracts and abotonable wrongs.

     In  vieew of the above answer to question No.  2,  the Full  Bench was of the opinion that it was not necessary  to answer  question  No.  1 and in other words Sec.  82 of  the Act  would  not apply for allocation of the services of  the employees of the erstwhile Punjab State Electricity Board.

     We  are  the opinion that the views expressed  by  the Full  Bench that allocation of services of the employees  of the  erstwhile  Punjab  State Electricity  Board  among  the successor  state could be done under sub-section (3) of  Sec 67 and not undeer Sec.  82 of the Act are correct.

     Mr.  Rao.  learned senior counsel has urged that State Electricity  Board being an instrumentality of the State the employees  of the Board should be treated as persons serving in  connection  with the affairs of the erstwhile  State  of Punjab  and,  therefore, their services could  be  allocated among  the successor State under Sec.  82 of the Act.   This contention  needs  no  consideration in view  of  our  above decision.

     A  committee was constituted for apportionment of  the staff  and  posts of the erstwhile Punjab State  Electricity Board  among  the  successor State.  The  decisions  of  the Committee  which  are relevant for the present  appeals  are extracted below:

     "1.   For the Union Territory of Chandigarh, staff may be  found  by  deputation from Punjab &  Haryana.   For  the present the existing staff posted there should be allowed to continue on available posts.

     @.   For  assessing  requirements of  staff  for  each territory  it was decided that reliance may be placed on the following principles:-

     (1) All existing posts which are solely concerned with the  affairs  of  the particular  State/Territory  shall  be allocated to the concerned State/Territory.

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     (2)  The  Committee has accordingly allocated  to  the following  categories  of  staff to the Boards of  Punjab  & Haryana State and to Himachal Pradesh:-

     (a)  All Gazetted Officers.  (b) All Non-Gazetted Head Office  Staff.  (c) Non-Gazetted Circle Cadre Staff  engaged in common works.

     Separate  lists of staff allocated to Punjab & Haryana Boards and Himachal Pradesh, categorywise are added."

     The  representatives  of the Govt.  of India  and  the successor State who were members of the Committee signed the above minutes.

     The  decision of the Committee regarding allocation of staff  to  the  Union Territory of Chandigarh was  that  the persons  who were posted within the geographical area of the Union  Territory  of Chandigarh were allowed to cintinue  of deputation and in future other members of the staff would be found by deputation from the Electricity Board of the States of Punjab and Haryana.

     The  above  correspondentce have established that  the decisions taken by the Committee were duly acted upon and as urged   on  behalf  of   the  respondents,  appellants  were allocated  to  the Punjab State Electricity Board  and  they were  allowed to work on deputation under the Administration of Union Territory of Chandigarh.

     Our  attention  was  drawn by Mr.  Rao to  the  letter dated  11th Feb.  1982 from the Ministry of Home Affairs  to the  Home  Secretary, Union Territory Chandigarh.   By  this letter,  the  Govt.   of  India conveyed the  views  of  the Ministry  of  Law,  Govt.  of India that employeees  of  the erstwhile  State of Punjab allocated to the successor States including  the  Union Territory of Chandigarh  were  wrongly treated  as on deputation as they were to be absorbed by the administration  as  employees  of  the  Union  Territory  of Chandigarh.   By  this  letter only the views of  the  Union territory administration were sought for.  Our attention was also drawn to the letter dated 14th Oct.  1983 from the Home Secretary,  Union  Territory Administration,  Chandigarh  to Chief  Engineer by which attention of the Chief Engineer was drawn  to the above letter of the Govt.  of India dated 11th Feb.   1982  and  he  was   requested  to  inform  the  Home Department  regarding steps taken.  Drawing our attention to the  provision  of  sub-section  (3) of Sec.   67  Mr.   Rao learned senior counsel has urged that these directions given by the Govt.  of India under the above provisions of the Act were binding on all authorities.

     By  the above letter the Govt.  of India only conveyed the  opinion of the Law Ministry and asked for the views  of the  Union Territory jof chandigarh.  In view of language of the  letter  it  cannot be treated as the  direction  issued under  sub-section  (3) of Sec 67 of the Act.  In fact  this letter  would show that the appellants were on deputation to the  Union  Territory  of Chandigarh and it  demolishes  the submission  of  Mr.   Rao  that  the  appellants  have  been absorbed  by the Union Territory of Chandigarh.  Moreover as within  one year there was an agreement regarding allocation of employees of the erstwhile Punjab State Electricity Board between  the  successor State the Govt.  of India could  not have  exercised the power of issuing direction as  envisaged

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under sub-section (3) of Sec.  67.

     According to Mr.  Rao learneed senior counsel, in view of  Sec.   83 of the Act the appellants were deemed to  have been   absorbed  under  the   administration  of  the  Union Territory  of  Chandigarh  as they were working  within  the geographical area of the said Union Territory on the date of re-organisation  of  the  erstwhile State of  Punjab.   This section  provides  that every person who immediately  before the  appointed day was holding or discharging duties of  any post  or  office  in  connection with  the  affairs  of  the erstwhile State of Punjab in any area which on the appointed day  became the area of any successor States would  continue to  hold the same post or office in that successor State and would  be deemed to have been duly appointed to the post  or office.  The object of this Sec.  was to allow the holder of any  post  or  office in the erstwhile state  of  Punjab  to continue  to  discharge  the function of the  said  post  or office  on  the  date  the   successor  States  were  forned otherwise  for every such post or office it would have  been necessary   for   the   successor   State  to   pass   order re-appointing  the holder of the post or office to  continue to discharge his function.

     Keeping  in  view the purpose for which Sec.   83  was enacted,  we hold that members of the erstwhile Punjab State Electricity  Board  could not claim deemed absorption  under this section merely because on the date the successor states were formed they were working within the geographical limits of the Union Territory of Chandigarh.

     For  the reasons stated above we do not find any mirit in these appeals.

     In  the  result appeals are dismissed and parties  are directed to bear their own cost.