C.S. Madhusoodhanan v. Kerala State Electricity Board Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941** ## **WP(C).No.7800 OF 2019(Y)** ## **PETITIONER:** **C.S.MADHUSOODHANAN, AGED 56 YEARS** **CHANDRA VILASAM HOUSE, CHIRAKKADAVU CENTRE P.O., PONKUNNAM, KOTTAYAM-686 520** **BY ADVS. SRI.T.B.HOOD SMT.M.ISHA SRI.AMAL KASHA** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD LIMITED, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, VYDHUTHI BHAVANAM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004** - **2 CHAIRMAN AND MANAGING DIRECTOR, VYDHUTHI BHAVANAM, PATTOM PLACE P.O., THIRUVANANTHAPURAM-695 004** - **3 SECRETARY, KERALA STATE ELECTRICITY BOARD LIMITED,VYDHUTHI BHAVANAM, PATTOM PLACE P.O., THIRUVANANTHAPURAM-695 004** - **4 CHIEF EINGINEER (HUMAN RESOURCE MANAGEMENT), KERALA STATE ELECTRICITY BOARD LIMITED, VYDHUTHI BHAVANAM, PATTOM PLACE P.O., THIRUVANANTHAPURAM-695 004** **R1-4 BY SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-08-2019, THE COURT ON 01-10-2019 DELIVERED THE FOLLOWING:** W.P.(C).No.7800 of 2019 2 ## **JUDGMENT** ## **Dated this the 1[st] day of October 2019** 1. Heard Sri.K.Gopalakrishna Kurup, learned Senior Counsel appearing for the petitioner and Smt. Aneetha A.G., learned standing counsel for the Kerala State Electricity Board Limited. 2. Petitioner, an employee of the Kerala State Electricity Board Limited, was placed under suspension on the allegations of misappropriation. An enquiry was conducted against him and on the basis of Exhibit P1 enquiry report, the petitioner was terminated from service. The appeals preferred by the petitioner were rejected by Exhibit P4 and later by Exhibit P5. By Exhibit P6 judgment, this Court found that the penalties were imposed on the petitioner without serving a copy of the enquiry report. Exhibits P3, P4 and P5 orders were set aside and the 4[th] respondent was directed to give a copy of enquiry report to the petitioner and to obtain his explanation before proceeding further. Accordingly, a copy of the enquiry report was furnished and after considering the explanation submitted W.P.(C).No.7800 of 2019 3 by the petitioner, Exhibit P8 order was issued removing the petitioner from service. Though the petitioner preferred an appeal, Exhibit P9 order has been passed without affording an opportunity of hearing the petitioner. It is submitted by the learned counsel for the petitioner that on the very same allegations, prosecution had been launched against the petitioner and by Exhibit P10 judgment, the petitioner had been honourably acquitted. It is contended that since the acquisitions against the petitioner in the disciplinary enquiry were identical to that in the prosecution, the honourable acquittal of the petitioner in the criminal case ought to have been considered in the disciplinary proceedings. 3. A counter affidavit has been placed on record by the respondents. It is stated that by Exhibit P10, the petitioner had been acquitted on the ground that the prosecution could not succeed in proving the allegations against the petitioner and that as such the petitioner was not entitled to any favourable consideration on the basis of Exhibit P10 judgment. It is submitted that the disciplinary proceedings and the criminal proceedings being entirely distinct and different, the W.P.(C).No.7800 of 2019 4 disciplinary authority or appellate authority is not expected to consider the findings in the criminal proceedings, while issuing orders in the disciplinary proceedings. It is contended that the petitioner had been found guilty in a duly constituted disciplinary proceedings and that as such his contentions are not liable to be considered. 4. The learned Senior Counsel for the petitioner would submit that Exhibit P8 order does not record findings on the charges raised against the petitioner. It is further contended that the finding in Exhibit P10 judgment which was extremely relevant in the matter ought to have been considered at least by the Apex court. The learned counsel for the petitioner places reliance on the decisions of the Apex Court in **Capt.M.Paul Anthony v. Bharat Gold Mines Ltd. and another** [(1999) 3 SCC 679] to contend that where disciplinary proceedings and criminal proceedings are continued on the very same set of facts, the outcome of one would have a bearing on the other. The decision in **R.P.Bhatt v. Union of India and others** [(1986) 2 SCC 651] is also relied on to contend that where an appeal is filed raising specific contentions, the grounds raised W.P.(C).No.7800 of 2019 5 therein be considered and it has to be looked into whether the procedure laid down by the rules has been complied with and if not, whether such noncompliance has resulted in violation of Constitution provisions or in the failure of justice, whether the findings of the disciplinary authority are warranted by the evidence on the record and whether the penalty imposed is adequate. It is contended that Exhibit P9 order discloses no such application and that as such the same is liable to be set aside. 5. The learned counsel appearing for the KSEB would submit that Exhibits P8 and P9 orders had been rendered on 30.3.2016 and 29.6.2016 respectively and that the writ petition filed after more than three years is hopelessly belated. It is stated that disciplinary proceedings and criminal proceedings are completely different by nature and standard of proof and an acquittal in the criminal case cannot have any effect on the concluded disciplinary proceedings against the petitioner. The learned counsel relies on the decisions of the Apex Court in **Deputy Inspector General of Police and another v. S.Samuthiram** [(2013) (1) SCC 598] to contend that the mere W.P.(C).No.7800 of 2019 6 acquittal long years after the disciplinary proceedings had been concluded will not entitle the petitioner to a reconsideration on the issue. 6. I have considered the contentions advanced. The petitioner has been placed under suspension in the year 2002. Exhibit P1 enquiry report had been prepared after the due enquiry. It appears that copy of the enquiry report was not served on the petitioner before Exhibit P2 order of imposition of penalty was issued. By Exhibit P6, this Court considered the contentions of the parties and quashed the orders under challenge. It was further directed as follows:- In the result, this writ petition is allowed. Exts.P2,P5 and P10 orders are quashed. The parties are relegated to the stage at which the enquiry report was received. The fourth respondent shall serve a copy of the enquiry report to the petitioner asking the petitioner to offer his explanation against the enquiry report. After considering the same, the disciplinary proceedings can be completed in accordance with law. The entire exercise shall be completed within a period of three months from the date of receipt of copy of this judgment. The period during which the petitioner was kept out of service can be reckoned as period of suspension for which the petitioner would be entitled for subsistence allowance as per rules.” W.P.(C).No.7800 of 2019 7 7. Thereafter, Exhibit P7 show cause notice was issued on 17.12.2015. The petitioner submitted his explanations and Exhibit P8 order was passed on 30.3.2016. The appeal preferred by the petitioner against Exhibit P8 was rejected by Exhibit P9 order. It has been stated in Exhibit P9 as follows:- “After following the due procedures and having examined the entire case file along with the reply to the Show Cause Notice, Chief Engineer (HRM) ordered to terminate Sr.C.S.Madhusoodanan from service with effect from the date of suspension, i.e, is from 7.1.2002 vide paper read as 5[th] above, since his continuation in service is detrimental to the interest of the Board. It was also ordered to recover the liability of Rs.1,13,500/- along with the interest from 1.3.2002 till the date of remittance, failing which Revenue Recovery Action would be initiated against him. In the meantime, the Hon'ble Enquiry Commissioner & Special Judge, Kottayam has disposed of the crime case registered against the review petitioner as per the judgment dated 31.7.2012. The petitioner was found guilty of charges and was sentenced to undergo imprisonment for various spells and penalised. Meanwhile, the appeal petitions and review petitions filed by Sri.C.S.Madhusoodanan before the Chairman and Board were dismissed vide Orders referred 6[th] and 7[th] respectively by confirming the punishment of termination. Sri.C.S.Madhusoodanan subsequently filed appeal before the Honorable High Court of Kerala in Crl.No.1032 and 1033 of 2012 challenging the above judgment dated 31.7.2012. The Honorable High Court of Kerala in the judgment read ask 8[th] paper set- aside the judgment dated 31.7.2012 of Trial Court and remanded back the matter to the Trial Court for fresh disposal after affording an opportunity to adduce fresh evidence for both prosecution as well as the defence and also an opportunity of being heard.” W.P.(C).No.7800 of 2019 8 8. Thereafter, the appeal was dismissed. It is submitted by the learned counsel for the petitioner that after a month, finding of guilt was again recorded against the petitioner by the Enquiry Commissioner & Special Judge. But by Exhibit P10 judgment, the same was found to be vitiated and the petitioner was acquitted. It was found in Exhibit P10 judgment that the conviction had been recorded on the finding that the petitioner had forged the seal of the bank. It was held that the original seal of the bank was not produced in evidence and that as such, the conclusion reached by the trial court that the petitioner had forged the seal could not be relied on. It was in the above circumstances that the conviction of the petitioner was reversed and the finding of acquittal was entered in Exhibit P10. 9. Exhibit P10 judgment is dated 13.7.2018. It is not in dispute before me that Exhibits P8 and P9 proceedings concluded in 2016 itself. The disciplinary proceedings and the criminal proceedings being different in nature, I find no legal infirmity in the action of the respondents in having concluded the disciplinary proceedings W.P.(C).No.7800 of 2019 9 without awaiting the final verdict in appeal by this Court. However, in view of the fact that the proceedings which led to the prosecution were identical to the memo of charges issued to the petitioner in the disciplinary proceedings, I am of the opinion that the acquittal of the petitioner in appeal by this Court by Exhibit P10 is a matter which should gain the attention at least of the appellate authority. The appellate authority had narrated the contentions of the parties. However, the consideration of the contentions raised is contained in the penultimate paragraph of Exhibit P9 order. The same reads as follows:- - “After examining the case with entire connected documents the undersigned has observed that the Hon'ble High Court of Kerala has not fully exonerated Sri.C.S.Madhusoodanan from the charges. The Hon'ble High Court of Kerala has, without going into the merits of the case, only remanded the matter to the Trial Court for fresh disposal. It is also observed that the case is now under trial before the Hon'ble Enquiry Commissioner &Special Judge, Kottayam. Further, the delinquent has not made out any genuine reason for absolving him from the charges levelled against him. Moreover, the degree of proof in a departmental proceeding is less onerous than in a criminal proceeding. 10. I am of the opinion that the appellate authority ought to have considered the contentions of the petitioner with regard to the W.P.(C).No.7800 of 2019 10 records of the enquiry and ought to have entered the finding as to the sustainability of the penalty imposed. In the above view of the matter Exhibit P9 order is set aside. There will be a direction to the respondents to take up, consider and pass orders on the appeal preferred by the petitioner as against Exhibit P8 order of removal from service and to pass appropriate order, taking note of Exhibit P10 judgment also. Orders shall be passed within a period of two months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.7800 of 2019 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY THE ENQUIRY OFFICER,** **EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 28.02.2011 ISSUED TO THE PETITIONER** **EXHIBIT P3 TRUE COPY OF THE TERMINATION ORDER DATED 06.07.2011 ISSUED BY THE 4TH RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 24.04.2012 ISSUED BY THE CHAIRMAN OF THE BOARD REJECTING THE APPEAL FILED BY THE PETITIONER** **EXHIBIT P5 TRUE COPY OF THE BOARD ORDER DATED 20.12.2012 ISSUED BY THE 1ST RESPONDENT BOARD** **EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED OF THIS HON'BLE COURT 28.05.2015 IN W.P(C) NO.10830/2013** - **EXHIBIT P7 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 17.12.2015 ISSUED TO THE PETITIONER** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 30.3.2016 ISSUED BY THE 4TH RESPONDENT** - **EXHIBIT P9 TRUE COPY OF THE ORDER DATED 29.06.2016 ISSUED BY THE 2ND RESPONDENT** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 13.07.2018 OF THIS HON'BLE COURT IN CRIMINAL APPEAL NO.948/2016** True copy PS to Judge