D. Vishnu Nampoothiri v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 16TH DAY OF DECEMBER 2016/25TH AGRAHAYANA, 1938** ## **WP(C).No. 30115 of 2013 (L)** **----------------------------** ## **PETITIONER(S): -------------** **D.VISHNU NAMPOODIRI ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, THENGANA, CHANGANACHERY, KOTTAYAM** **BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SRI.S.A.ANAND** ## **RESPONDENT(S):** **--------------** **1. KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN 695 004, REPRESENTED BY ITS SECRETARY** **2. THE CHAIRMAN** **KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVANAM,PATTOM, THIRUVANANTHAPURAM,PIN 695 004** **3. THE CHIEF ENGINEER(HRM) KERALA SWTATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM ,PIN 695 004.** **R1-R3 BY ADV. SMT. A.G.ANEETHA, STANDING COUNSEL, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-12-2016, ALONG WITH WPC. 2812/2014& CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 30115 of 2013 (L)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 COPY OF THE MEMO OF CHARGES NO.EB3/DIS.ACTION/ KIDANGARA/07-08/1138 DATED 4/2/2008 ISSUED TO THE PETITIONER BY THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, ALAPPUZHA** **EXHIBIT P2 COPY OF THE REPLY DATED 28/7/2008 SUBMITTED BY THE PETITIONER TO EXT.P1** ## **EXHIBIT P3 COPY OF THE ENQUIRY REPORT** **EXHIBIT P4 COPY OF THE SHOW CAUSE NOTICE NO.EBVS.4/7/2011/619 DATED 9/8/2012** **EXHIBIT P5 COPY OF THE DETAILED REPLY DATED 12/10/2012 SUBMITTED BY THE PETITIONER TO EXT.P4** **EXHIBIT P6 COPY OF THE METER SEALING CERTIFICATE IN RESPECT OF CON.NO.3394/MPKY OF KIDANGARA SECTION OF THE KSEB, ISSUED ON 26/2/2004.** **EXHIBIT P7 COPY OF THE ORDER NO.EBVS.4/7/2011/623 DATED 16/7/2013 OF THE 3RD RESPONDENT** **EXHIBIT P8 COPY OF THE APPEAL DATED 12/8/2013 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT** **EXHIBIT P9 COPY OF THE ORDER NO.VIG/BII/7478/2007 DATED TVPM 2280 DATED 18/11/2013 OF THE 2ND RESPONDENT** **EXHIBIT P10 COPY OF THE INTERIM ORDER DATED 23/10/2013 IN WPC NO.25858/2013 OF THIS HON'BLE COURT.** **RESPONDENT(S)' EXHIBITS: N I L** **-----------------------** **//TRUE COPY//** **PA TO JUDGE** ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = = = = = = = = =** ## **W.P.(C).Nos.30115 of 2013,2812, 10214 & 12880 of 2014** **= = = = = = = = = = = = = = = = = = = = = = Dated this the 16[th] day of December, 2016** ## **JUDGMENT** - 1.This writ petition is filed challenging orders of penalty imposed by the disciplinary authority differing from the findings contained in the Enquiry Report. The petitioner in W.P.(C).No.2812 of 2014 retired from service as Assistant Engineer on 31.03.2005. The petitioner in W.P.(C).No.30115 of 2013 retired from service on 30.04.2016. The petitioners in the other two writ petitions are still in service. The documents and parties are being referred to as arrayed in W.P.(C). No.2812 of 2014. - 2.It is submitted that Exhibit P1 show cause notice dated 04.02.2008 was issued to the petitioner after his retirement, alleging that while he was working as Sub Engineer in the Electrical Section, Kidangara, during the period from 7/2002 to 6/2003, he had committed certain irregularities which were W.P.(C).No.30115/13 & con.cases 2 revealed in a surprise inspection conducted by the Anti Power Theft Squad. An amount of approximately Rs.12.75 lakhs was assessed as the loss to the Board due to the error in connection from the date of installation of the meter, i.e., 08.01.2001 to the date of inspection. Since the petitioner had worked as a Sub Engineer from 7/2002 to 6/2003 and failed to detect the incorrect meter connection, he was required to show cause why disciplinary action should not be taken against him. Though the petitioner submitted his reply, the Board decided to initiate action and a detailed enquiry was ordered by Exhibit P2 proceedings dated 17.10.2008 against six persons who were allegedly involved in the incident. Thereafter, Exhibit P3 Enquiry Report was submitted by the Enquiry Officer. - 3.The Enquiry Officer found that there had been an inspection conducted by the Anti-Power Theft Squad during August 2004 and that there was no breaking of seal found during such inspection. The Enquiry Officer, therefore, concluded that the W.P.(C).No.30115/13 & con.cases 3 error in the connection would have occurred after August 2004 and in the above circumstances found that none of the charges levelled against the delinquent officers could be proved. The Chief Engineer, HRA considered the findings in the Enquiry Report, but decided to disagree with the findings of the Enquiry Officer. Thereafter, he directly issued a show cause notice proposing a punishment of recovery of proportionate loss from the delinquent officers. Though the petitioners had filed their representations against the show cause notice, an order dated 16.7.2013 was issued ordering recovery of amounts from the petitioners. In the case of the officers who were in service as on that date, though the proposal was to inflict punishment of bar of increments as well as recovery of loss, after considering the explanations to the show cause notice, the penalty was reduced as warning and recovery of proportionate share of the loss caused to the Board. The petitioners filed appeals against the order before the Chairman, which were also rejected. The orders of the disciplinary authority imposing punishment as well as the W.P.(C).No.30115/13 & con.cases 4 appellate authority confirming the same are challenged in these writ petitions. - 4.In W.P.(C).No.2812 of 2014, the petitioner raises additional contention that he had retired from service on 31.03.2005 and the initiation of disciplinary proceedings in respect of an incident which had occurred between 18.08.2002 and 25.07.2003 could not have been done without the sanction of the Board. - 5.Heard the learned counsel for the petitioners and the learned standing counsel appearing for the Board. - 6.It is submitted by the learned counsel for the petitioners in these cases that the imposition of penalty on the petitioners after differing from the Enquiry Report was not legal and proper and not in compliance with the provisions of the Kerala State Electricity Board Employees (Classification, Control & Appeal) Regulations 1969. It is submitted by the learned W.P.(C).No.30115/13 & con.cases 5 counsel that where the disciplinary authority decides to disagree with the findings of the Enquiry Officer, the delinquent employee is entitled to get the findings of the disciplinary authority together with brief reasons for disagreement, if any, with the findings of the Enquiry Officer, along with a copy of the report of the enquiring authority, before a decision is taken to proceed further to impose penalty on the basis of such findings recorded by the disciplinary authority. It is submitted that in the instant case, the disciplinary authority had unilaterally decided to disagree with the findings of the enquiring authority and had, after taking such a decision, issued a show cause notice requiring the delinquent officers to submit their explanations to the proposed penalty. In that view of the matter, it is contended that the action of the disciplinary authority was vitiated. The learned counsel for the petitioners place reliance on the decisions of this Court reported in **S.Gopalakrishnan Nair v. Secretary to Government and another** [2007 (3) KHC 660] and **Thomas C.V. v. KSEB and others** [2008 KHC 4841] to W.P.(C).No.30115/13 & con.cases 6 contend that where the disciplinary authority differs with the Enquiry Officer, notice to the delinquent employee, before the findings of the enquiry officer is differed from is necessary and is a requirement of the Rules. 7.The learned counsel for the petitioners in W.P.(C).Nos.10214 of 2014 and 12880 of 2014 additionally contends that the original orders were passed by the appellate authority in their case, thus denying them a right for appeal. The learned counsel for the petitioners in W.P.(C).Nos.2812 and 10214 of 2014 also contends that it was the specific stand of the Board before the Electricity Ombudsman that the error in connection was a result of unlawful action taken by the consumer for theft of electricity and the officers of the Board were not in a position to detect the same. The staff of the Board who visited the premises to record the readings cannot normally be expected to find erroneous connection since the seals are found in tact. It is further contended that no inspection by breaking the seals is possible in the normal course. It is W.P.(C).No.30115/13 & con.cases 7 therefore contended that on merits as well, the petitioners were not responsible for the alleged theft or illegal connection and the finding and recovery of amounts from the petitioners was illegal and injustice. 8. The learned standing counsel appearing for the respondent would contend that the contention of the petitioner in W.P.(C) No.2812 of 2014 as regards the delay in initiation of proceedings against him will not hold good in view of the fact that the error in connection had been detected in 2007 and therefore the show cause notice issued on 02.04.2008 is well within time. The 2[nd] respondent, on the strength of the counter affidavit, would contend that the disciplinary authority had the power to disagree with the findings of the enquiry officer and the grounds for such disagreement are clearly set out in the show cause notice. It is, therefore, contended that, since the petitioner had been made aware of the reasons for disagreement before the penalty was imposed, the requirement of compliance of the principles of natural justice W.P.(C).No.30115/13 & con.cases 8 had been met and there is no illegality in the order of imposition of punishment. - 9.I have considered the contentions advanced. Regulation 16 (12)(i)(a) of the Kerala State Electricity Board Employees (Classification, Control & Appeal) Regulations, 1969 reads as follows:- - “12(i)If the disciplinary authority, having regard to the findings on the charges is of the opinion that any of the penalties specified in items (v) to (vii) of regulation 11(1) should be imposed, it shall (a) furnish to the Board employee a copy of the report of the Inquiring Authority and where the disciplinary authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and (b) give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time which may not generally exceed one month such representation as he may wish to make against the proposed action.” W.P.(C).No.30115/13 & con.cases 9 10. It is submitted by the learned counsel for the petitioners that construing the provisions of the Kerala State Electricity Board Employees(Classification, Control & Appeal) Regulations, 1969, this Court has, in **Thomas C.V. v. KSEB and others** [2008 KHC 4841], held as follows:- “Judged in the light of the above principles, the action taken herein by the disciplinary authority is clearly vitiated. It is a well accepted principle of natural justice that no one shall be condemned unheard. In this case, he was exonerated of the charges by the enquiry officer. The petitioner was well in his rights to assume that no further liability could have been cast upon him. The disciplinary authority before choosing to issue Ext.P4 did not issue any notice giving opportunity to the petitioner to object to the proposals on the non acceptability of the enquiry report and also about the tentative conclusions arrived at by him to differ from the findings of the enquiry officer. This is a gross irregularity which vitiates the entire proceedings. As the petitioner was entitled to be given an opportunity at that stage, the show cause notice proposing punishment evidenced by Ext.P4 does not stand scrutiny in the eye of law.” W.P.(C).No.30115/13 & con.cases 10 In **S.Gopalakrishnan Nair v. Secretary to Government and Another** [2007 (3) KHC 660] also this Court has found as follows:- “In the case in hand, after the receipt of the Disciplinary Authority's show cause notice, the petitioner repeated all his contentions as were placed before the Enquiry Officer. Even assuming that with such an opportunity and also with further opportunity of personal hearing, the petitioner had exhausted himself of all his contentions as to any reason on which the disciplinary authority ought not to disagree with the findings of the Enquiry Officer, it is absolutely necessary that the final decision of the Disciplinary Authority, disagreeing with the findings of the Enquiry Officer reflects the reasons for such disagreement. The impugned order, by which the Disciplinary Authority disagreed with the findings of the Enquiry Officer, is the mere repetition that the entire materials have been looked into and the materials on record show that the petitioner was guilty. No specific reasons have been stated in the impugned order of the Disciplinary Authority pointing out the materials in the enquiry, on the basis of which, the findings of the Enquiry Officer is being reversed or disagreed to. The views of the Disciplinary Authority in such a proceedings on the basis of the materials on record, is something that should reflect in the ultimate decision. That speaking order should contain the specific reasons with W.P.(C).No.30115/13 & con.cases 11 reference to the materials which form the foundation of the decision of the Disciplinary Authority to disagree with the findings of the Enquiry Officer and enter a finding against the interest of the delinquent.” 11.In the instant case also, the Enquiry Officer had clearly found that the error in the connection might have happened after August 2004 when an inspection had been conducted and no tampering was noticed by the Squad. It is therefore stated that the charges levelled against the delinquent officers could not be proved. The disciplinary authority which decided to differ from the findings of the enquiry report ought to have put the delinquent officers on notice of its intention to do so. However, the disciplinary authority had straightaway decided to disagree with the findings in the Enquiry Report and had issued a show cause notice to the delinquent employees requiring them to show cause as to why the proposed punishment should not be imposed. Going by the decisions of this Court referred to above, this procedure is erroneous. The requirement of the delinquent employee being put on notice W.P.(C).No.30115/13 & con.cases 12 before the disciplinary authority decides on the question of differing from the findings of the enquiry has been given a go by in this case. 12.In that view of the matter, I am of the opinion that the orders passed by the disciplinary authority imposing the punishment of recovery of loss from the petitioner in these writ petitions are illegal and unsustainable. The orders impugned in these writ petitions are therefore set aside. In view of the fact that the allegation is with regard to the period from 2001 to 2007 and the first two writ petitioners have already retired from service as also taking note of the contention of the Board before the Electricity Ombudsman as has been recorded by Exhibit P10 order of the Ombudsman, I am of the opinion that no purpose will be served by directing the respondents to continue the action taken against the petitioners from the stage where it was vitiated. In the facts and circumstances of the instant case and the findings entered, I am of the opinion that the issue should rest without any further disciplinary 13 W.P.(C).No.30115/13 & con.cases proceedings as against the petitioners. In the result, the impugned orders are set aside. These writ petitions are allowed. sd/- **Anu Sivaraman, Judge** sj