D. Jagadeesan Thampi v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932** **WP(C).No. 22320 of 2009(H)** **---------------------------------------** **PETITIONER:** **-------------------** **D.JAGADEESAN THAMPI, ASSISTANT ENGINEER, 110 KV SUB STATION, KATTAKKADA, KATTAKKADA P.O.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, SRI.PETER JOSE CHRISTO, SRI.S.A.ANAND, SRI.RAMESH. C.R, SRI.K.V.VIMAL.** **RESPONDENTS:** **------------------------** **1. KERALA STATE ELECTRICITY BOARD, VYTHYUTHI BHAVANANM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, PIN: 695 004.** **2. THE CHAIRMAN,KERALA STATE ELECTRICITY BOARD, VYTHYUTHI BHAVANANM, PATTOM, THIRUVANANTHAPURAM, PIN: 695 004.** **3. THE CHIEF ENGINEER,(HUMAN RESOURCE MANAGEMENT), KERALA STATE ELECTRICITY BOARD, VYTHYUTHI BHAVANANM, PATTOM, THIRUVANANTHAPURAM, PIN: 695 004.** **4. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELCTRICAL CIRCLE, THIRUVANANTHAPURAM RURAL AT KATTAKADA, PIN: 695 572.** ## **W.P.(C). NO.22320/2009-H:** **5. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, NEYYATTINKARA, PIN: 695 121.** **R1 TO R5 BY SRI. ASOK M.CHERIYAN, S.C, K.S.E.B.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.22320/2009-H:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE MEMO OF CHARGES NO.GB1/DISC.CASES/96/7/BPM/1120 DTD. 27/09/1996 WITH THE APPENDED STATEMENT OF ALLEGATIONS.** **EXT.P.2: COPY OF THE ENQUIRY REPORT ALONG WITH COVERING LETTER NO. AEE/NTA/97-98/4 DTD. 16/06/1997 AND CONNECTED DOCUMENTS.** **EXT.P.3: COPY OF THE ORDER NO. GBI/DIS. CASES/96/7/BPM 2334 DTD. 04/02/1998 OF THE R.5.** ## **EXT.P.4: COPY OF THE ENQUIRY REPORT.** **EXT.P.5: COPY OF THE SHOW CAUSE NOTICE NO.GBI/DISC.CASES/96/7/BPM/1846 DTD. . 1.2.2000 OF THE R.5.** **EXT.P.6: COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO EXT.P.5 SHOW CAUSE NOTICE.** **EXT.P.7: COPY OF THE ORDER NO.GBI/DIS.CASES/96/7/BPM/369 DTD. 20/06/2001 OF THE R.5.** ## **EXT.P.8: COPY OF THE APPEAL SUBMITTED BY THE PETITIONER BEFORE THE R.4.** ## **EXT.P.9: COPY OF THE ORDER NO.GB2/2125/2001/453 DTD. 13/06/2002 OF THE R.4.** **EXT.P.10: COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE R.3. DTD. 08/07/2002.** **EXT.P.11: COPY OF THE DETAILED REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.3. DTD. 12/03/2007.** **EXT.P.12: COPY OF THE ORDER NO. EBVS.9/8/2007/935 DTD. 30/11/2007 BEFORE THE R.3.** **EXT.P.13: COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE R.2. ON 1/1/2008.** **EXT.P.14: COPY OF THE FORWARDING LETTER NO.GBI/DIS. CASES/96/7/BPM/1930 DTD. 03/05/2008.** ## **EXT.P.15: COPY OF THE ENCLOSED REPORT.** **EXT.P.16: COPY OF THE NO.VIG/BVII/2084/08/2342 DTD. 01/09/2008 OF THE K.S.E. BOARD.** **EXT.P.17: COPY OF THE JUDGMENT DTD. 03/09/2008 IN C.C. 830/04 IN THE COURT OF THE J.F.C.M.I, NEYYATTINKARA.** ## **W.P.(C). NO.22320/2009-H:** **EXT.P.18: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE R.2. DTD. 30/09/2008.** **EXT.P.19: COPY OF THE ORDER NO. VIG/BVII/2084/08/1136 DTD. 22/05/2009 OF THE R.2. EXT.P.20: COPY OF THE ORDER NO. VIG.A.III.3114/96 DTD. 03/10/2000 OF THE R.2.** **RESPONDENTS' EXHIBITS:** **EXT.R5.A: COPY OF THE PROCEEDINGS DTD. 08/03/2000.** **EXT.R5.B: COPY OF THE REPORT CALLED FOR VIDE LETTER DTD. 11/04/2008.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.22320/2009-H ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 23[rd] day of September, 2010** ## **J U D G M E N T** The orders culminating in Ext.P19 in a disciplinary proceedings initiated against the petitioner are under challenge in this writ petition. 2. The petitioner who was working as Assistant Engineer in the service of the Kerala State Electricity Board, while working as Overseer, Electrical Satellite Section, Nemom, was issued with a memo of charges dated 27/09/1996. Ext.P1 is the true copy of the memo of charges along with the statement of allegations. Mainly it was alleged that in a fatal electrical accident that occurred at Parachalkadavu, Vazhavila, Nemom on 25/08/1996, he committed negligence, slackness and dereliction of duty. The learned counsel for the petitioner submitted that the entire proceedings culminated in an order passed by the Executive Engineer produced as Ext.P3 wherein a _de novo_ enquiry was ordered which is not supportable by any provisions of the regulations or the statutory rules. It is submitted that the Enquiry Officer submitted Ext.P2 report on finding that the petitioner is not guilty and he recommended to drop the disciplinary proceedings. The said Enquiry Officer was removed and another officer was W.P.(C). No.22320/2009 ## -:2:- appointed as the Enquiry Officer and, accordingly, a fresh enquiry was conducted. 3. The proceedings imposing the punishment is produced as Ext.P7 whereby it was ordered that next two annual increments of the petitioner is barred with cumulative effect. The same has been confirmed in appeal by the appellate authority also. The learned counsel for the petitioner submitted that in the absence of any power conferred under the relevant rules, a _de novo_ enquiry cannot be ordered wiping off the enquiry already conducted and reliance is placed on a decision of this Court in **Baby** ## **v. State of Kerala [1999 (1) KLT 676]** . Therein the very same legal question was considered in the light of Rule 15 of Civil Services (Classification, Control and Appeal) Rules. This Court followed the earlier decision of this ## Court in **Kesavan Namboodiri v. State of Kerala [1982 KLT** **512]** . The head note in **Baby's case** reads thus:- Assailing Ext.P7, the petitioner submits that even if the disciplinary authority is of the view that all the evidence had not been taken note of by the enquiry officer in finding the delinquent not guilty of the charges, the option available for the disciplinary authority is not to direct a ## W.P.(C). No.22320/2009 ## -:3:- de novo enquiry but to disagree with the findings of the enquiry officer on the basis of the material available on record and continue the action. When an enquiry officer had been fully constituted and when that enquiry officer had submitted his report, it cannot be wiped out and 'de novo enquiry' cannot be ordered. There is no provision in the rules to order a de novo inquiry after wiping out the inquiry already conducted. Thus, in this case, the disciplinary authority could have either disagreed with the findings based on reasons or directed the Inquiry Officer to continue the Inquiry by collecting available evidence. Instead, a different Inquiry Officer was appointed and the proceedings were continued afresh against the petitioner. Thus the petitioner is perfectly justified in assailing Ext.P7.” 4. It is well settled, as held by this Court above, that the disciplinary authority could have either disagreed with the findings based on reasons or directed the Inquiry Officer to continue the Inquiry by collecting available evidence. There is no provision in the rules to order a de novo inquiry after wiping out the inquiry already W.P.(C). No.22320/2009 -:4:- conducted. This aspect is covered by a decision of the Apex Court in **K.R.Deb v. The Collector of Central Excise, Shillong [1971 (2) SCC 102]** wherein at paragraph (12) of the said Judgment the Apex Court held thus: “12. It seems to us that R.15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in R.15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under R.9.” 5. The same principle applies here on all fours. In that view of the matter, the _de novo_ enquiry conducted and report received cannot be relied upon for any purposes as ## W.P.(C). No.22320/2009 ## -:5:- the enquiry itself is vitiated by the proceedings Ext.P3. Therefore, the writ petition is allowed. The proceedings Exts.P3, P7, P9, P12 and P19 are quashed. 6. It is pointed out by the learned Standing Counsel for the Board that the proceedings can be resurrected from the stage of Ext.P2. The learned counsel for the petitioner submitted that the petitioner has already retired from service. Hence, there cannot be any question of continuance of the disciplinary proceedings after retirement. The said legal position cannot be disputed. In that view of the matter, no fresh disciplinary action can be initiated against the petitioner as sought for by the learned Standing Counsel for the Board. The consequential monetary benefits will be disbursed to the petitioner within a period of three months from the date of receipt of a copy of this Judgment by the third respondent. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ms