Joseph Froid Periara v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942** ## **WP(C).No.32287 OF 2019(I)** ## **PETITIONER:** **JOSEPH FROID PERIARA AGED 52 YEARS S/O. LATE FRANCIS PERAIRA, OVERSEER (REMOVED FROM SERVICE, 66 KV SUB STATION, NJARAKKAL VYPIN, UNDER TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD, KALAMASSERY, RESIDING AT KALAVARAMPARAMBIL, 44/1074/B/5, N. KALOOR, POTTAKUZHY, KOCHI 682 017.** **BY ADVS. SRI.C.UNNIKRISHNAN (KOLLAM) SRI.M.R.SUDHEENDRAN SRI.JOHNSON GOMEZ SMT.UTHARA A.S** ## **RESPONDENTS:** |**1**|**THE KERALA STATE ELECTRICITY BOARD**| |---|---| ||**REPRESENTED BY ITS SECRETARY, VYUDYUTHI BHAVAN,**| ||**PATTOM, PATTOM PALACE P.O.**| ||**THIRUVANANTHAPURAM 695 004.**| |**2**|**THE CHAIRMAN AND MANAGING DIRECTOR,**| ||**KERALA ELECTRICITY BOARD, VYUDYUTHI BHAVAN PATTOM,**| ||**PATTOM PALACE P.O. THIRUVANANTHAPURAM 695 004.**| |**3**|**THE CHIEF ENGINEER (HRM),**| ||**KERALAL STATE ELECTRICITY BOARD, VYUDYUTHI BHAVAN,**| ||**PATTOM, PATTOM PALACE, P.O.**| ||**THIRUVANANTHAPURAM 695 004.**| |**4**|**THE CHIEF ENGINEER**| ||**(DISTRIBUTION CENTRAL), KERALA STATE ELECTRICITY BOARD**| ||**ERNAKULAM, KOCHI 682 011.**| |**5**|**THE EXECUTIVE ENGINEER,**| ||**ELECTRICAL DIVISION,**| ||**KERALA STATE ELECTRICITY BOARD ERNAKULAM,**| ||**KOCHI 682 018.**| ||**R1-5 BY SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY**| ||**BOARD LIMITED**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-122020, THE COURT ON 19-01-2021 DELIVERED THE FOLLOWING:** W.P.(C).No.32287/2019 2 ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = = =** ## **W.P.(C).No.32287 of 2019** **= = = = = = = = = = = = = = = = Dated this the 19[th] day of January, 2021** ## **JUDGMENT** ## 1. This writ petition is filed with the following prayers:- “i.To declare that the entire disciplinary proceedings culminated in the orders Exts.P7 and P20 are violative of Article 14,16,19 and 21 of Constitution of India and rules pertaining to the disciplinary proceedings. ii.Call for the records leading up to Exts.P7 and P21 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction. iii.To issue a Writ of Mandamus commanding the respondents to reinstate the petitioner in service forthwith, with all consequential benefits including seniority and salary arrears.” 2. Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents. - 3.The petitioner challenges Exhibit P20 order passed in appeal on the ground that the specific directions contained in Exhibit - P17 judgment of this Court have been ignored while issuing the same. W.P.(C).No.32287/2019 3 4. It is submitted that the petitioner had challenged the order imposing the punishment of removal from service by filing an appeal in terms of the Kerala State Electricity Board Employees (Classification, Control & Appeal) Regulation. By Exhibit P9 order, the appellate authority rejected the specific contentions raised by the petitioner, but decided to modify the punishment as compulsory retirement. The said order was again challenged by the petitioner by filing W.P.(C).No.27655 of 2015. The said writ petition was disposed of by Exhibit P13 judgment directing the second respondent to reconsider the appeal preferred by the petitioner, considering his specific contentions. Thereafter, Exhibit P14 order was passed, which was again challenged before this Court. This Court found that there was no proper consideration of the appeal. On the said finding, Exhibit P14 was set aside and a fresh consideration of the appeal was ordered. Thereafter, Exhibit P16 order was passed, upholding the punishment, which again came to be challenged. By Exhibit P17 judgment, the entire aspects of the matter were examined by this Court. The specific W.P.(C).No.32287/2019 4 contentions of the petitioner were recorded and the appellate authority was directed to reconsider the appeal on the specific ground pointed out by the petitioner. Exhibit P20 is the order passed in appeal pursuant to Exhibit P17 judgment. The petitioner challenges Exhibit P20 on the ground that the specific grounds directed to be considered in Exhibit P17 have not been considered even while passing Exhibit P20 order. It is submitted that in Exhibit P17 judgment, especially paragraph 17 to 24 thereof, would show that the specific contentions of the petitioner with regard to bias, non supply of the material which was relied on in the enquiry to the petitioner, reliance on material which was never put to the petitioner in the enquiry, reliance placed on a confession statement of another employee, who had not been cited as a witness in the enquiry, and the absence of specific charges had not been considered by the appellate authority in Exhibit P20. It is contended that the finding that there was no procedural irregularity or violation of the principles of natural justice is completely against the facts. It is stated that the finding in Exhibit P20 is to the effect that the slight deviations in the procedure did not W.P.(C).No.32287/2019 5 prejudice the petitioner and therefore, the petitioner cannot rely on those aberrations to challenge the punishment imposed on him. It is submitted by the learned counsel for the petitioner that the valid contentions urged by the petitioner as against the enquiry and the procedure followed for imposing punishment had been accepted by this Court in Exhibit P17 judgment. This Court had held that the enquiry authority and the disciplinary authority have to record their findings on each of the charges with the reasons thereof and that the said procedure had not been complied with by either of the said authorities, apart from highlighting the specific contentions of the petitioner. This Court in Exhibit P17 had held as follows:- “The inquiry authority in the conclusive part of his report has made a general statement that for the reasons and facts noted above and detailed above, all the charges against both the accused are proved. Obviously, such general finding by the enquiry officer does not satisfy the mandate of the Regulations. The disciplinary authority also in his Exhibit P7 order imposing penalty, has not come to the conclusion of the guilt of the petitioner on each of the charges. To that extent, there is violation of the Regulations 1969.” W.P.(C).No.32287/2019 6 5. It was further found that the appellate authority, in spite of repeated directions, had not considered the specific grounds raised in the appeal by the petitioner as against the enquiry report and the order imposing penalty. It was with the said observations that this Court in Exhibit P17 judgment directed a reconsideration of the appeal. However, in Exhibit P20 appellate order also, the appellate authority continues to take an extremely casual view of the matter. It is again found that the enquiry was conducted in substantial compliance with the principles of natural justice and that in view of the serious nature of the allegations raised against the petitioner, the punishment of compulsory retirement was valid and legal. - 6.The learned counsel for the petitioner places reliance on the provisions of the Kerala State Electricity Board Employees (Classification, Control & Appeal) Regulation as also on the decision of the Apex Court in **State of Andhra Pradhesh and others v. Sree Rama Rao** [AIR 1963 SC 1723], **State of Bihar and others v. Phulpari Kumari** (2020) 2 SCC 130 and **State of Karnataka and another v. N.Gangaraj** (2020) 7 ## W.P.(C).No.32287/2019 3 SCC 423, **Pokken v. Jessie Estate** [2001 KHC 589], **Roop Singh Negi v. Punjab National Bank and others** [2009 KHC 4143] in support of his contentions. - 7.A counter affidavit has been placed on record by the respondents. It is contended therein that the specific grounds raised by the petitioner in the appeal have been considered by Exhibit P20 and that the enquiry authority had come to conclusion that the petitioner was guilty of all the charges leveled against him. It is submitted that the enquiry was conducted in substantial complaince with the procedure provided in the Regulations and that the finding of guilt recorded against the petitioner was, therefore, fully sustainable. It is further submitted that the attempt of the petitioner is to rely on minor procedural infractions to get over the substantiated findings of guilt as against him. - 8.Several decisions of this Court and of the Apex Court are relied on to contend that the scope of interference by this Court in departmental enquiry matters is extremely limited W.P.(C).No.32287/2019 8 and that this Court should not embark on a fact finding enquiry in such matters. 9.I have considered the contentions advanced. The incident, which led to the initiation of the disciplinary proceedings, occurred in the year 2006. A full fledged enquiry appears to have been conducted against the petitioner. It is not in dispute before me that the enquiry report was not served on the petitioner along with show cause notice. It is also not in dispute at this point in time that Exts.10(d), 10(e), 10(f) and 10(g), which were additional documents produced by the respondents and which were not served to the petitioner have been relied on to find the petitioner guilty on at least some of the charges. The respondents in Exhibit P20 order itself admit to some procedural infractions in the matter of the conduct of the enquiry as well as the imposition of the penalty. However, the contention appears to be that the infractions are not so grievous as to vitiate the proceedings or the imposition of the penalty. W.P.(C).No.32287/2019 9 10.Having considered the findings in Exhibit P17 judgment, I am of the opinion that the contentions raised by the respondents that the petitioner is not prejudiced by the findings in the enquiry and resultant imposition of penalty without giving him a due opportunity to meet the contentions raised against him cannot be accepted. This is more so in view of the fact that the specific failings in the procedure had been examined by this Court in Exhibit P17 judgment and the matter was remanded to the appellate authority to consider those aspects on their merits. The continued generalization and vague statements, relying on the nature of the allegations against the petitioner, cannot be accepted. In view of the specific findings contained in Exhibit P17, I am of the opinion that Exhibit P20 also does not amount to a proper consideration of the appeal preferred by the petitioner on the specific grounds raised by him as has been directed by this Court on repeated occasions. 11.In the above view of the matter, this Court is compelled to set aside Exhibit P20 order and direct a reconsideration of the appeal on its merits. The specific contention of the petitioner W.P.(C).No.32287/2019 10 that additional documents, copies of which were never served on the petitioner, had formed the basis for the findings of guilt against him on the charges and that the enquiry report and the imposition of the penalty were vitiated by procedural infractions are liable to be considered by the appellate authority in accordance with law. - 12.In the above view of the matter, Exhibit P20 is set aside. There will be a direction to the appellate authority to reconsider the appeal in accordance with the directions contained in Exhibit P17 judgment and pass appropriate orders on the same, within a period of two months from the date of receipt of a copy of this judgment. Writ petition is ordered accordingly. **==> picture [27 x 12] intentionally omitted <==** ## **Anu Sivaraman, Judge** sj/11/1/2021 W.P.(C).No.32287/2019 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE MEMO OF CHARGES DATED 16/12/2006.** - **EXHIBIT P2 A TRUE COPY OF THE REPLY DATED 12/1/2007 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P3 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 4/6/2013.** - **EXHIBIT P4 A TRUE COPY OF THE REPLY DATED 11/9/2013 SUBMITTED BY THE PETITIONER.** - **EXHIBIT P5 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER.** - **EXHIBIT P6 COPY OF THE ENQUIRY REPORT DATED NIL.** - **EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS DATED 7.11.2014 OF THE 3RD RESPONDENT.** - **EXHIBIT P8 A TRUE COPY OF THE APPEAL DATED 10/12/2014.** - **EXHIBIT P9 A TRUE COPY OF THE APPELLATE ORDER DATED 6/8/2015.** - **EXHIBIT P10 TRUE COPIES OF THE PROGRESS REPORT. EXHIBIT P11 TRUE COPIES OF THE PROGRESS REPORT. EXHIBIT P12 A TRUE COPY OF THE LEGAL OPINION. EXHIBIT P13 A TRUE COPY OF THE JUDGMENT DATED 14/11/2017 IN WPC NO. 27655/2015.** **EXHIBIT P14 A TRUE COPY OF THE ORDER DATED 20/1/2018 OF THE 2ND RESPONDENT.** 12 W.P.(C).No.32287/2019 **EXHIBIT P15** **A TRUE COPY OF THE JUDGMENT DATED 9/3/2018.** **EXHIBIT P16 A TRUE COPY OF THE ORDER DATED 4/5/2018 OF THE 2ND RESPONDENT.** **EXHIBIT P17** **A TRUE COPY OF THE JUDGMENT DATED 19/2/2019 IN WPC NO. 19016/2018.** **EXHIBIT P18 TRUE COPY OF THE REVIEW PETITION. EXHIBIT P19 TRUE COPY OF THE ORDER DATED 4/4/2019 IN THE RP.** **EXHIBIT P20 TRUE COPY OF THE ORDER DATED 20/6/2019. EXHIBIT P21 A TRUE COPY OF THE NOTICE DATED 1/1/2019 ISSUED BY THE ENQUIRY OFFICER.** True copy PS to Judge