A.RAJAGOPALAN v. Kerala State Electricity Board and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY,THE 30[TH] DAY OF NOVEMBER 2022 /9TH AGRAHAYANA, 1944 ``` ## **`WP(C) NO. 4861 OF 2011`** ## **`PETITIONER:`** ``` A.RAJAGOPALAN ATTEERI HOUSE, KACHERIPARAMBU P.O., ALANALLUR,, MANNRKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA ``` ## **`RESPONDENTS:`** - `1 KERALA STATE ELECTRICITY BOARD REP. BY ITS CHAIRMAN, VYDYUTHI BHAVAN,, PATTOM P.O., THIRUVANANTHAPURAM-695001.` - `2 THE CHIEF ENGINEER, HRM KSEB, VYDYUTHI BHAVAN, PATTOM P.O.,, THIRUVANANTHAPURAM-695001.` - `3 THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, KSEB, MANJERI-676121.` - `4 STATE OF KERALA REP. BY PRINCIPAL SECRETARY TO GOVT., POWER DEPARTMENT, THIRUVANANTHAPURAM. BY ADV SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMIT` ## **`THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** WPC 4861/2011 **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.4861 of 2011** ## **---------------------------------------------Dated this the 30[th] day of November, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: - i. To issue a writ of certiorari or appropriate writs directions or orders calling for the records leading to Exts.P7, Ext.P9 and P10 and quash the same. - ii. To issue a Writ of mandamus or any other appropriate writ or order or direction directing that Ext.P9 and P10 are wholly illegal and without jurisdiction and the entire proceedings initiated against the petitioner is nonest in the eye of law. - iii. To issue a writ of mandamus or any other appropriate writ order or direction directing the 1[st] respondent to consider and pass orders on Ext.P11 and to defer the recovery pursuant to Ext.P10 pending disposal of the Writ Petition(C). - iv. To grant such other relief as this Hon'ble Court deem fit to grant in the interest of justice. - v. To issue a writ of certiorari or appropriate writ order or directions calling for the records leading to Ext.P12 and quash the same. (SIC) WPC 4861/2011 **3** 2. Petitioner is an Assistant Engineer retired from Electrical Section, KSEB Melattur on 31.07.2004. Long after retirement, the petitioner received Ext.P1 memo of charges dated 8.8.2007 containing 5 charges leveled against him. The petitioner filed a detailed reply as per Ext.P2. The 2[nd] respondent ordered to conduct enquiry as per Ext.P3 and Ext.P4 enquiry report was submitted. Based on Ext.P4, an amount of Rs.61,878/- has been fixed as liability on the petitioner and issued Ext.P5 show cause notice why the proposed punishment should not be imposed upon him. The petitioner filed a detailed reply evident from Ext.P6. It is the case of the petitioner that the 2[nd] respondent, without proper examination, confirmed the amount of Rs.61,878/-, vide Ext.P7 order. The petitioner has submitted Ext.P8 appeal before the Chief Engineer and the appeal was also rejected as per Ext.P9 order. Thereafter the petitioner filed Ext.P11 revision before the 1[st] respondent Board challenging Ext.P7 and P9. The same was also rejected as per Ext.P12 order. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel for KSEB. I also heard the WPC 4861/2011 **4** ## learned Government Pleader. 4. The counsel for the petitioner submitted that in similar situation, this Court interfered with the recovery of another employee as per judgment dated 13.01.2021 in W.P. (C). No.18421/2011. The counsel submitted that in this case also the amount is already recovered from the consumer. The Standing Counsel, on the other hand, takes me through the counter affidavit filed by respondents 1 to 3. The Standing Counsel also relied on the judgment of a Full Bench of this Court in **Raveendran Nair v. State of Kerala [2007 (1) KLT 605]** in which it is observed that even without any pecuniary loss caused to Government, on account of misconduct proved against a pensioner, Government has right to withhold or withdraw pension or any part of it, whether permanently or for a specified period. 5. This Court considered the contentions of the petitioner and the Standing Counsel for the Board. It is an admitted fact that the disciplinary proceedings are initiated against the petitioner long after his retirement. It is also an admitted fact that the petitioner received the entire pensionery benefits before the disciplinary proceedings are WPC 4861/2011 **5** initiated. It is also an admitted fact that the alleged loss caused to the Board is already recovered from the consumer. In a similar situation, this Court considered the same point. It will be better to extract the relevant portion of the judgment dated 13.01.2021 in W.P.(C). No.18421/2011: “7. When I evaluate the afore submissions, it is evident that even the KSEB does not have a case that the petitioner was charge sheeted during the time when he was in service and that his contention - that the charge sheet was issued more than three years after his retirement - remains uncontroverted. 8. That apart, the allegation against the petitioner is that on account of wrong reading of the meter and not maintaining the correct record on the register, a consumer had obtained certain benefits. However, it is admitted by the KSEB, even in their counter affidavit, that this amount had been remitted by the said consumer, through they say that it was done belatedly and therefore, that there was loss caused to them. However, the proceedings are wholly unclear as to how the adjudication of the liability against the petitioner had been done and in what manner the same has been computed and fixed. WPC 4861/2011 **6** 9. In fact, on 17.11.2017, another learned Judge of this Court had directed the KSEB to file their statement as to whether the loss sought to be recovered from the petitioner has been obtained from the consumer. The Assistant Executive Engineer, thereafter, filed an affidavit dated 11.12.2017, wherein he conceded that the consumer has remitted an amount of Rs. 5,30,464/-, but asserting that the said payment had been made much later. There is, however, not a whisper in this affidavit as to how the liability was fixed against the petitioner and the manner in which it has been done. In this context, even if it is taken for argument that the petitioner is guilty of supervisory lapses while he was in service, this by itself, in my view, is not sufficient to mulct him with the impugned liability, particularly when the first demand has been made much after he retired from service. 10. The afore being so, I notice that even though this matter was admitted on 07.07.2011 and an order interdicting the recovery against the petitioner had been issued on that day, no attempt has been made by the KSEB, at any point of time, to have this order vacated and that it has continued to be in effect until now. WPC 4861/2011 **7** 11. In the afore circumstances, I allow this writ petition and set aside Ext.P10, as also the other impugned orders, to the extent to which it mulcts liability on the petitioner and order that no such recovery shall be pursued against him in future.” 6. In the light of the above judgment, I am of the considered opinion that the impugned orders in this writ petition will not stand. The decision of the Full Bench of this Court in **Raveendran Nair’s case** (supra) has no application in the facts and circumstances of the case. Therefore, this writ petition is allowed and Exts.P7, P9 and P12 are quashed. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WPC 4861/2011 **8** ## **`APPENDIX OF WP(C) 4861/2011`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE CHARGES NO.EBI/DISC/ 1056/07-08/5994 DATED 8.8.2007. Exhibit P2TRUE COPY OF THE DETAILED REPLY DATED 14.9.2007. Exhibit P3TRUE COPY OF THE ORDER NO.EBI/DISC/ 1056/07-08/680 DATED 7.3.2008. Exhibit P4TRUE COPY OF THE ORDER ENQUIRY REPORT NO.EE/CKY/2009-2010/1 DATED 1.6.2009. Exhibit P5TRUE COPY OF THE SHOW CAUSE NOTICE DATED 1.10.2009. Exhibit P6TRUE COPY OF THE DETAILED REPLY TO EXT.P5 . Exhibit P7TRUE COPY OF THE ORDER NO.EB1/DISC/ 1056/2007-2008/3129 DATED 1.2.2010. Exhibit P8TRUE COPY OF APPEAL DATED NIL BEFORE THE 2ND RESPONDENT. Exhibit P9TRUE COPY OF THE ORDER NO.EBVS.7/6/ 2010/1148 DATED 15.12.2010. Exhibit P10TRUE COPY OF THE NOTICE NO.GBI/D A/2010-11/1642 DATED 5.1.2011. Exhibit P11TRUE COPY OF THE REPRESENTATION DATED 31.1.2011 WITH POSTAL ACKNOWLEDGMENT. Exhibit P12TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 16.5.2011. ```