K.K. Venkitachalam and A.R. Sukumaran v. The Chairman, Kerala State Electricity Board, The Chief Engineer (HRM), Kerala State Electricity Board, The Deputy Chief Engineer Electrical Circle, Kerala State Electricity Board, The Executive Engineer (Electrical Division), Kerala State Electricity Board, Chittur, Palakkad, The Chief Vigilance Officer, KSEB, and The Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 12TH DAY OF MARCH 2021 / 21ST PHALGUNA, 1942** ## **WP(C).No.2874 OF 2014(H)** ## **PETITIONERS:** - **1 K.K.VENKITACHALAM,AGED 63 YEARS RETD. ASSISTANT EXECUTIVE ENGINEER, KSEB, S/O.K.S.KRISHNA IYER (LATE), BRINDAVAN, 24/42, THONDIKULAM VILLAGE, NOORANI, PALAKKAD - 678 004.** - **2 A.R.SUKUMARAN AGED 63 YEARS** - **RETED. ASSISTANT ENGINEER, KSEB, S/O.RAMAN C (LATE), AMBAD HOUSE, P.O.PALLAMCHATHANUR, PALAKKAD - 678 571.** **BY ADV. SHRI.U.BALAGANGADHARAN** ## **RESPONDENTS:** - **1 THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, THIRUVANANTHAPURAM - 695 001.** - **2 THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, THIRUVANANTHAPURAM - 695 001.** - **3 THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, KERALA STATE ELECRICITY BOARD, VAIDYUTHI BHAVANAM, THIRUVANANTHAPURAM - 678 001.** - **4 THE EXECUTIVE ENGINEER (ELECTRICAL DIVISION) KERALA STATE ELECTRICITY BOARD, CHITTUR, PALAKKAD - 678 101.** - **5 THE CHIEF VIGILANCE OFFICER KSEB, THIRUVANANTHAPURAM - 695 001.** - **6 THE KERALA STATE ELECTRICITY BOARD** - **REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, THIRUVANANTHAPURAM - 695 001.** ## **R1 BY SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.2874 OF 2014(H)** **2** ## **JUDGMENT** ## **Dated this the 12th day of March 2021** The petitioners say that they have retired from the services of the Kerala State Electricity Board (KSEB) as Assistant Executive Engineer and Assistant Engineer on 31.03.2005 and 31.03.2006, respectively; but that more than nine or ten years later, they have been issued with Exts.P5 and P5A notices alleging that an amount of Rs.31,386/- each have been fixed as liability against them, thus directing them to pay the same, failing which action under the Public Accounts Code has been threatened. The petitioners say that both Exts.P5 and P5A are egregiously improper, since the alleged incident, based on which the liability has been fixed, happened as early as in the year 1998 and because no action to recover the same had been taken for more than 25 years later. 2. Sri. U. Balagangadharan – learned counsel for the **WP(C).No.2874 OF 2014(H)** **3** petitioners, submitted that even on the merits, no recovery is possible because all which is stated in Exts.P5 and P5A, as allegations against his clients, is that they had given two connections to one consumer on the same tariff, thus, making it clear that no loss had been occasioned to the Board. He submitted that, in any event of the matter, a recovery after three years of his clients' retirement, under the provisions of the Revenue Recovery Act, is impermissible as per the judgment of this Court in _**R.S.Sainudheen v. Deputy Tahsildar**_ [2008 (2) KLJ 485] and _**State of Kerala v. Purushothaman**_ [2009 KHC 1344]. He further asserted that the recovery now sought to be made is also in violation of Note 3 to Rule 3 of the Part III of the Kerala Service Rules (KSR). He therefore, prayed that Exts.P5 and P5A be set aside. 3. In response, the learned Standing Counsel for the KSEB - Sri. M.K. Thankappan, submitted that Exts. P5 and P5A have been issued under the provisions of the Public Accounts Code and that the Board can also always recover the amounts by **WP(C).No.2874 OF 2014(H)** **4** suing the petitioners under the Civil Procedure Code. He submitted that since a liability has been fixed against the petitioners validly, the KSEB may be given liberty to do so; however, conceding to a pointed question from the Court, that, on account of efflux of time, recovery under the provisions of the Revenue Recovery Act may not be possible. 4. When I consider the afore submissions and examine Exts. P5 and P5 A, it is clear that the only allegation against the petitioners is that they had given two connections to one consumer on the same tariff. However, it does not indicate as to how this has caused any loss to the Board; and in any event, no enquiry or a valid quantification processes is seen to have been conducted prior to these notices being issued, mulcting the petitioners with the liability as mentioned therein. The Board has unilaterally held that there is a liability and has directed the petitioners to pay the same, threatening them with recovery action, if they do not do so. 5. It is pertinent that the petitioners were in service for **WP(C).No.2874 OF 2014(H)** **5** over 20 years after the alleged incident mentioned in Exts.P5 and P5A. Therefore, even if any liability could have been fixed, I fail to understand why the KSEB did not take any action until the year 2005 and 2006, when the petitioners retired from service and as to why they waited for another nearly ten years to issue Exts.P5 and P5A notices, in the year 2015. This inordinate delay certainly would go against the case of the KSEB and I cannot, therefore, permit any recovery based on the impugned notices, being guided by the judgment of the Hon’ble Supreme Court in _**State of Panjab and others vs. Rafiq Masih (White Washer) and others**_ [(2015) 4 SCC 334]. Though I am aware that the petitioners are not Last Grade Servants but Engineers, I am of the certain view that the intrinsic spirit of the said judgment would apply in full force to the case of the petitioners also, because Exts. P5 and P5A have been issued more than ten after years they superannuated and more than 30 years after the incident mentioned therein had taken place. In the afore circumstances, I allow this writ petition and set **WP(C).No.2874 OF 2014(H)** **6** aside Exts.P5 and P5A. After I dictated this judgment, Sri. M.K. Thankappan prayed that, as per the ratio in the judgment in _**Pappachan v. State of Kerala**_ [O.P. No.4528/1996] the KSEB may be permitted to initiate recovery action against the petitioners under the provisions of the Civil Procedure Code, after excluding the period when this writ petition has been pending before this Court. I am afraid that this is not a request that can be acceded by this Court because, as I have already said, above the alleged incident happened as early as in the year 1998; while the Board waited for more than 25 years thereafter to issue Exts.P5 and P5A notices. Therefore, even if the request of Sri. M.K. Thankappan is accepted and the period when this writ petition has been pending before this Court is excluded, _prima facie,_ the KSEB may not be in a position to file a civil suit for recovery based on the cause of action which arose in the year 1998. I, therefore, do not deem it appropriate to accede to the afore request of the learned Standing Counsel for the KSEB; though leaving open **WP(C).No.2874 OF 2014(H)** **7** their contentions on this aspect. This writ petition is thus disposed of. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** SAS/12/03/2021 **WP(C).No.2874 OF 2014(H)** **8** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1** **EXHIBIT P1. A TRUE COPY OF THE NOTICE NO.VG/B(1)69/2013/1882 DATED 24.09.2013 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER NO.1.** **EXHIBIT P1A EXHIBIT P1(A). A TRUE COPY OF THE NOTICE NO.VG/B(1)/69/2013/1881 DATED 24.09.2013 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONER NO.2.** - **EXHIBIT P2 EXHIBIT P2. A TRUE COPY OF THE EXPALANATION SUBMITTED BY THE FIRST PETITIONER DATED 25.10.2013.** **EXHIBIT P2A EXHIBIT P2(A). A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE SECOND PETITIONER DATED 15.10.2013.** **EXHIBIT P3 EXHIBIT P3. A TRUE COPY OF THE ORDER NO.VG.B(1)/69/2013/2305 OF 1ST RESPONDENT DATED 06.12.2013.** - **EXHIBIT P4 EXHIBIT P4. A TRUE COPY OF THE LETTER DATED 06.01.2014 SUBMITTED BY THE 2ND PETITIONER.** **EXHIBIT P5 EXHIBIT P5. A TRUE COPY OF THE NOTICE NO.EB4/VD/DA/13-14/1848 DATED 10.01.2014 ISSUED TO THE PETITIONER.** - **EXHIBIT P5A EXHIBIT P5(A). A TRUE COPY OF THE NOTICE NO.EB4/VG/DA/13-14/1849 DATED 10.01.2014 ISSUED TO THE PETITIONER.** - **EXHIBIT P6 EXHIBIT P6. A TRUE COPY OF THE NLC NO.EB1 (A)NLC/724 DATED 13.07.2004 ISSUED TO THE 1ST PETITIONER SHOWING THE DIFFERENT PERIODS OF SERVICE RENDRED BY THE 1ST PETITIONER.** **EXHIBIT P7 EXHIBIT P7. A TRUE COPY OF THE RELEVANT PAGE OF THE SERVICE CONNECTION REGISTER OF K.S.E. BOARD.** **RESPONDENTS' EXHIBITS:NIL** //TRUE COPY// P.A. TO JUDGE