KERALA STATE ELECTRICITY BOARD LIMITED v SAJI LAL S.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **& THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945** **WA NO.768 OF 2022 JUDGMENT IN WP(C) 7182/2020 OF HIGH COURT OF KERALA DATED 28.3.2022** **------------------** ## **- APPELLANTS/RESPONDENTS 1 AND 2 IN WPC :** 1 KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS SECRETARY (ADMINISTRATION), VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004. 2 CHAIRMAN AND MANAGING DIRECTOR KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 695 004. BY ADV ANTONY MUKKATH ## **- RESPONDENT/PETITIONER IN WPC :** SAJI LAL S., AGED 52 YEARS S/O.SWAMINATHAN CHETTIAR, T.C.29/369, THENGAPURA LANE, PETTA, THIRUVANANTHAPURAM DISTRICT - 695 024. BY SRI.JOSEPH GEORGE THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 9.1.2024 ALONG WITH WA.794/2022, THE COURT ON 14.2.2024 DELIVERED THE FOLLOWING: WA Nos.768 & 794 OF 2022 -: 2 :- **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945** **WA NO.794 OF 2022 JUDGMENT IN WP(C) 7182/2020 OF HIGH COURT OF KERALA DATED 28.3.2022** **----------------** ## **- APPELLANT/WRIT PETITIONER :** SAJILAL S, AGED 54 YEARS S/O.SWAMINATHAN CHETTIYAR, T.C 29/369, THENGAPURA LANE, PETTAH, THIRUVANANTHAPURAM, PIN - 695 024. BY ADVS. JOSEPH GEORGE P.K.HASSANKUTTY ## **- RESPONDENTS/RESPONDENTS :** 1 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY (ADMINISTRATION), VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. 2 CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. BY ADV ANTONY MUKKATH THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 9.1.2024 ALONG WITH WA.768/2022, THE COURT ON 14.2.2024 DELIVERED THE FOLLOWING: WA Nos.768 & 794 OF 2022 ## -: 3 :- ## **ANU SIVARAMAN, J. & C. PRATHEEP KUMAR, J.** **= = = = = = = = = = = = = = = = = = = W.A.Nos.768 & 794 of 2022 = = = = = = = = = = = = = = = = = = = Dated this the 14[th] day of February, 2024** ## **JUDGMENT** ## **Anu Sivaraman J.** 1. Both these appeals are directed against judgment of the learned single Judge in W.P.(C).No.7182 of 2020. The appellant in W.A.No.794 of 2022 challenges the judgment inasmuch as the learned single Judge only reduced the punishment of removal from service to one of compulsory retirement and did not direct the reinstatement of the appellant. While the Kerala State Electricity Board Limited (KSEBL for short), the appellant in W.A.No.768 of 2022, challenges the finding in the judgment that the penalty of removal from service for the proven charge of unauthorised absence from 1.05.2013 onwards was shockingly disproportionate and that the next lower punishment of compulsory retirement from service is to be substituted. 2. The parties and documents are referred to as in W.P(C).No.7182 of 2020 for the sake of convenience and clarity. - 3.The facts necessary for consideration of the issue are as follows:The petitioner in the writ petition, joined service as Assistant WA Nos.768 & 794 OF 2022 -: 4 :- Engineer in the KSEBL on 18.3.1993. He was promoted as Assistant Executive Engineer in 1996 and as Executive Engineer on 17.8.2011. He availed 7 days of leave on 3.4.2013 and the leave was sanctioned. Thereafter, on 10.4.2013, he sought extension of leave for 21 days and the same was sanctioned. It is the contention of the petitioner that he submitted an application for leave on 1.5.2013 and 'proceeded on leave'. It is stated that while so, a substitute was appointed as Executive Engineer in the petitioner's vacancy. On 23.10.2013, Exhibit P2 memo of charges was issued on the ground that he had absented from duty unauthorisedly from 1.5.2013 and had neither attended calls nor made available his phone number for contact for the authorities and that he left India without obtaining permission from the Board and thereby committed grave misconduct and dereliction of duty. On 16.11.2013, a written objection was filed by the petitioner to the memo of charges. By order dated 24.11.2014, a detailed enquiry was ordered, based on which Exhibit P4 report of enquiry was submitted on 7.3.2015. It is the contention of the appellant that the said enquiry report, while finding that the charges stood proved, recommended a lenient view to be taken in the matter. However, show-cause notices were issued and an order imposing the penalty of removal from service was issued WA Nos.768 & 794 OF 2022 -: 5 :- against the petitioner. He filed Exhibit P8 appeal, which was dismissed by Exhibit P9 by the Chairman of the KSEBL, who passed Exhibit P7 termination order. Thereupon, Exhibit P10 review petition was also filed, which was dismissed by Exhibit P11 without stating any reasons. Exhibit P14 mercy petition filed was also dismissed, pursuant to which the writ petition was filed. 4. The learned counsel appearing for the appellant in W.A. No.794/2022 contends that there were clear procedural irregularities as contained in the proceedings of the respondents as evident from the materials on record. It is stated that after Exhibit P4 enquiry report was submitted, Exhibit P5 show cause notice was issued in the letter head of the Chief Vigilance Officer though it was signed by the Chairman and the Managing Director. Though a reply was submitted before the Chairman and the Managing Director, Exhibit P7 proceedings were issued imposing the major penalty of removal from service after finding that he had wilfully absented from duty of KSEB for five years without availing any kind of leave for taking up another job abroad. It is submitted that the memo of charges issued to the appellant did not contain any such allegations and that the findings of the disciplinary authority are, therefore, completely WA Nos.768 & 794 OF 2022 ## -: 6 :- unfounded. Thereafter, the appellant preferred an appeal as Exhibit P8, which was considered by the very same authority and rejected by Exhibit P9. Further, Exhibit P10 review petition submitted by the employee was considered and rejected by the Board. The learned counsel for the appellant-employee contends that these aspects were urged in his writ petition but were not considered by the learned Single Judge. 5. Relying on a decision reported in **Shri Bhagwan Lal Arya vs Commissioner of Police Delhi & Ors** [(2004) 4 SCC 560], the learned counsel for the petitioner contended that extension of leave beyond the leave duly sanctioned on medical grounds cannot be considered as unauthorised absence, _per se,_ and that in such cases the High Court can direct the authorities to reconsider the punishment on cogent reasons. 6. Relying on **Krushnakanth B Paramar v. Union of India and others** [(2012) 3 SCC 178] it is contended that even in the case of unauthorised absence, disciplinary proceedings have to be conducted and there has to be a specific finding that the employee in question had wilfully absented from duty. WA Nos.768 & 794 OF 2022 -: 7 :- 7. A decision of the Apex Court in **Union of India v. Subrata Nath** [2022 (6) KLT online 1136 (SC)] is also relied on to contend that though the High Court or the Tribunal cannot ordinarily reappreciate evidence to arrive at its own conclusion in respect of the penalty imposed, when the penalty imposed is found to be so disproportionate to the offence that it would shock the conscience of the Forum/Tribunal, it would be justified in interfering with the penalty. The decision in **Union of India and others v. P. Balasubrahmanayam** [2021 KHC 6129] is also relied on. 8. The learned counsel appearing for the employer KSEBL would, on the other hand, contend that the petitioner in the writ petition was working as an Executive Engineer, which is the highest post in the relevant wing of the KSEBL in the district and that his irresponsible action in having left his station and even the country without leave applied for by him having been sanctioned was clearly a case of dereliction of duty and was a serious offence, in view of the responsible post held by him. It is contended that it has come out specifically in the enquiry that he had not been granted any leave, that the application for leave had been rejected, that he had left the country without informing the employer that he had not left any means for the employer to WA Nos.768 & 794 OF 2022 ## -: 8 :- contact him and had refused to attend calls or to contact the employer to explain his conduct in any manner. It is submitted that the enquiry officer, under the scheme of the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1969 has the limited role of conducting the enquiry to find out from the evidence adduced whether the delinquent officer is guilty of the charges raised against him or not and nothing further. It is stated that the paragraph included in the enquiry report with regard to the lenient view to be taken in the matter was not liable to be considered in any manner either by the disciplinary authority or by the learned single Judge, since it was irrelevant and unnecessary for the consideration of the case on hand. It is further submitted that there was absolutely no material other than the leniency recommended in an enquiry report for the learned single Judge to come to the conclusion that the punishment imposed was disproportionate to the proved charges. 9. With regard to the contentions raised by the appellant at the time of hearing, it is contented that no such contentions as to the procedural lapses have been raised either in reply to the showcause notice issued to the employee or in the appeal or review WA Nos.768 & 794 OF 2022 -: 9 :- petition preferred by the employee or even in the writ petition. It is, therefore, contended that the appellant cannot rely on such contentions raised for the first time in a writ appeal, since the learned single Judge had considered the contentions and had found that the enquiry had been properly conducted. 10.Reliance is placed on the decisions of the Apex Court in **B.C.Chaturvedi v. Union of India and others** [(1995) 6 SCC 749], **State of Uttaranchal and others v. Kharak Singh** [(2008) 8 SCC 236]., **Lucknow Kshetriya Gramin Bank and another v. Rajendra Singh** [(2013) 12 SCC 372] and **M/s.Indian Oil Corporation Ltd. v. Shri.Rajendra D.Harmalkar** [2022 SCC Online SC 486]. - 11.Having considered the contentions advanced, we notice the contention of the employer that the petitioner was working as Executive Engineer (Civil) in the KSEBL as on the relevant dates. From 1.5.2013 onwards, he had not attended duty even in spite of the fact that the leave applied by him had not been sanctioned by the higher authorities. The leave sought for had later been rejected by order dated 8.5.2013. WA Nos.768 & 794 OF 2022 ## -: 10 :- - 12.The charge memo issued to the employee raised the following charges:- “(1) Absented from duty unauthorizedly with effect from 01-05-2013, - (2) Neither attended the calls made from the headquarters on your available phone contact, nor contacted the authorities concerned, for reporting your inability to return to duty and the reasons thereof, - (3) Left India without obtaining permission of the Board and - (4) Committed grave misconduct and dereliction of duty.” The reply of the employee was considered. A disciplinary enquiry was conducted and after considering evidence on record, the enquiry officer found that the charges stood proved. On the enquiry report, the employee was given a show-cause notice and after considering his explanations including the leniency called for by the enquiring authority, the punishment of removal from service was awarded. 13.The decisions relied on by the learned counsel for the Board are authority on the point that a mere observation that the penalty imposed is grossly disproportionate is insufficient for the Court or Tribunal exercising the power of judicial review to substitute the penalty imposed by a competent authority after valid disciplinary proceedings. In the instant case, it is after rejecting the challenge against the disciplinary proceedings and the orders WA Nos.768 & 794 OF 2022 -: 11 :- imposing penalty that the learned Single Judge has proceeded to hold that a lesser penalty would suffice. Apart from a recommendation made by the enquiring authority, there was no reason for the learned Single Judge to hold that the penalty imposed was shockingly disproportionate. Since the only role of the enquiring officer is to enquire into the charges to decide whether the charges are proved or not, we are of the opinion that the recommendation contained in the report, to the effect that the employee should be dealt with in a lenient manner, is completely misconceived and could not have been relied on. 14.However, we notice that the appellant has raised several contentions with regard to the procedural lapses which occurred in the imposing of the punishment. It appears that Exhibit P5 show-cause notice was issued to the employee in the letter head of the Chief Vigilance Officer, KSEB, who is not the appointing authority. The show-cause is signed by the Chairman and Managing Director. The order of penalty is also imposed by the Chairman and Managing Director. The appeal preferred by the employee under Regulation 24 of the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations was considered and dismissed by the WA Nos.768 & 794 OF 2022 -: 12 :- Chairman and Managing Director. Though a review under Regulation 35 has been preferred by the employee to the Board pointing out the reasons for the alleged misconduct and seeking the imposition of a lighter penalty, the same has also been dismissed without considering the same on merits. 15.In the facts and circumstances of the instant case, we are of the opinion that the question whether the alleged misconduct is one which justifies the imposition of the ultimate penalty of removal from service requires a consideration, at least at the hands of the ultimate reviewing authority, that is, the Board of the KSEBL. The contentions of the appellant employee with regard to the procedural irregularities also require a consideration. In the above circumstances, without going into the merits of the contentions of the parties, these appeals are disposed of as under :- The judgment of the learned Single Judge directing imposition of the lower penalty shall stand set aside. Ext.P11 order of the Board in review shall also stand set aside. The writ petition is disposed of with a direction to the Board of the KSEBL to take up the review petition filed by the appellant employee WA Nos.768 & 794 OF 2022 -: 13 :- under Regulation 35 of the of the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations and to consider and pass orders on the same, taking note of the contentions raised by the employee on facts and in law. The employee will be permitted to file a detailed argument note before the Board and produce any material that he wishes to rely on in support of his contentions. Such contentions shall be considered and an appropriate order passed by the Board within a period of three months from the date of receipt of a copy of this judgment. The question with regard to the proportionality of the punishment shall also be duly considered by the Board. **Sd/Anu Sivaraman, Judge** **Sd/C. Pratheep Kumar, Judge** jvt/2.2.24