K.R. Appukuttan v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938** **WP(C).No. 11825 of 2009 (W) ----------------------------** ## **PETITIONER:** ## **-----------** **K.R.APPUKUTTAN,S/O.LATEG.RAGHAVAN PILLAI, SRI KARTHIKA,T.C.NO.51/512,MANGULAM LANE,, PAPPANAMCODE,THIRUVANANTHAPURAM DISTRICT-689018.** **BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW** **RESPONDENT(S):** - **--------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY,VYDYUTHI BHAVANAM,, PATTOM, THIRUVANANTHAPURAM DISTRICT.695004.** **2. THE CHIEF ENGINEER (HRM),KERALA STATE ELECTRICITY BOARD,VYDYUTHI BHAVANAM,PATTOM,, THIRUVANANTHAPURAM DISTRICT-695004.** **3. THE EXECUTIVE ENGINEER,ELECTRICAL DIVISION,THIRUVANANTHAPURAM.** **4. THE ACCOUNTS OFFICER,PENSION SANCTION** - **KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM,, PATTOM, THIRUVANANTHAPURAM DISTRICT-695004.** **5. THE ACCOUNTS OFFICER,BILLING SUPERVISION UNIT, POWER HOUSE, THIRUVANANTHAPURAM-23.** **R1-R5 BY ADVS. SRI.SUDHEER GANESH KUMAR, SC, SRI.K.S.ANIL, SC, KSEB SRI.PULIKOOL ABUBACKER, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-12-2016, THE COURT ON 9-01-2017 DELIVERED THE FOLLOWING:** **K.V.** **WPC NO 11825 OF 2009: ---------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** ## **---------------------** - **P1: COPY OF THE RETIREMENT MEMO NO CE(HRM)821/GEN/RET/37/2008-09 DATED 30.11.2008 ISSUED BY THE ACCOUNTS OFFICER,OFFICE OF THE 2ND RESPONDENT.** - **P2: COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS NO GBI/DA/98-99 DATED NIL ISSUED BY THE 3RD RESPONDENT.** - **P3: COPY OF THE ADDITIONAL MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS NO GBI/DA/98,1162/982/23.03.1999 DATED 23.3.1999 ISSUED BY THE 3RD RESPONDENT.** - **P4: COPY OF THE REPLY DATED 22.10.1998 FILED BY THE PETITIONER TO THE INSPECTION REPORTS.** - **P5: COPY OF THE JUDGMENT DATED 4.2.1999 IN OP NO 2967 OF 1999-C BEFORE THIS HONOURABLE COURT.** - **P6: COPY OF THE LETTER DATED 31.8.1999 ISSUED BY THE 5TH RESPONDENT REDUCING AN AMOUNT OF RS 73,787,90/-FROM THE TOTAL LIABILITY AND FIXING THE FINAL LIABILITY AS RS,2,11,164.90/-.** - **P7: COPY OF THE ORDER DATED 31.1.2000 ISSUED BY THE DEPUTY CHIEF ENGINEER,ELECTRICAL CIRCLE,THIRUVANANTHAPURAM.** - **P8: COPY OF THE AMENDED MEMO CHARGES NO LA & DEO.6/99 DATED 25.6.2001 ISSUED BY THE LEGAL ADVISOR AND DISCIPLINARY ENQUIRY OFFICER.** - **P9: COPY OF THE REPLY DATED 23.7.2001.** - **P10: COPY OF THE JUDGMENT DATED 27.11.2003 IN C C NO 351 OF 2000 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE -111, THIRUVANANTHAPURAM.** - **P11: COPY OF THE ENQUIRY REPORT DATED 11.5.2004 PASSED BY THE LEGAL ADVISOR AND DISCIPLINARY ENQUIRY OFFICER GIVEN TO THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT,2005.** - **P12: COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE CHAIRMAN OF THE KERALA STATE ELECTRICITY BOARD.** - **P13: COPY OF THE ORDER N O GB/DA/PUTCHA /8/09/3119 DATED 20.3.2009 ISSUED BY THE 3RD RESPONDENT.** - **P14: COPY OF THE ORDER NO EBVS.2/32/98/302 DATED 17.4.2009 ISSUED BY THE 2ND RESPONDENT.** - **P15: COPY OF THE SHOW CAUSE NOTICE NO.EBVS.2/32/98/362 DATED 6.5.2009.** - **P16: COPY OF THE PETITION DATED 22.7.2009 ISSUED BY THE PETITIONER TO THE DEPUTY CHIEF ENGINEER, APPELLATE AUTHORITY.** **-2-** **-2-** **WPC NO 11825 OF 2009:** **--------------------** - **P17: COPY OF THE ORDER NO G.B/RIA/09-10/4062 DATED 21.8.2009 ISSUED BY THE DEPUTY CHIEF ENGINEER,APPELLATE AUTHORITY.** - **P18: COPY OF THE ORDER OF THE STATE INFORMATION COMMISSION,KERALA AS PER FILE NO.14088/SIC-GEN 1/2009 DATED 19.7.2011.** ## **RESPONDENTS EXHIBITS:** - **---------------------** **R1(A) COPY OF THE SHOW CAUSE NOTICE DATED 6.5.2009.** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = = = = = = = = =** **W.P.(C).No.11825 of 2009** **= = = = = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of January, 2017** ## **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 retired from service as Senior Assistant on 30.11.2008. 2.It is submitted that Exhibit P2 Memo of Charges was issued to the petitioner alleging that while he was working as Cashier in the Electrical Major Section, Puthenhantha during the period from 29.06.1989 to 25.03.1998, he had caused revenue loss to the tune of Rs.1,82,730.10. Another memo dated 23.03.1999 was also served alleging further revenue loss of Rs.1,08,747.70 for the period from 01.02.1997 to 17.04.1998. Disciplinary proceedings were initiated on the basis of Exhibits P2 and P3. Petitioner was also kept under suspension. Though copies of the documents relied upon to implicate the petitioner were sought for, those were not furnished to him, it W.P.(C).No.11825/09 2 is contended. The petitioner approached this Court and by judgment dated 04.02.1999 in O.P.No.2967 of 1999, the respondents were directed and to review the suspension to give copies of records to the petitioner. By Exhibit P6 order dated 31.08.1999, after considering the petitioner's reply to the show cause notice, an amount of Rs.73,787.90 was waived and the liability was fixed at Rs.2,11,164.90. 3.Thereafter, a detailed enquiry was conducted against fourteen persons who were allegedly involved in causing revenue loss to the Board to the tune of Rs.2,11,164.90. A criminal case lodged on the same allegations ended in aquittal by Exhibit P10 judgment dated 27.11.2003. Exhibit P11 Enquiry Report was submitted by the Enquiry Officer on 23.7.1999 exonerating the petitioner of the charges. The petitioner was reinstated in service in August 2003. However, no orders were passed on the Enquiry Report by the Disciplinary Authority. Disciplinary action taken against other miniserial employees was dropped on the basis of Exhibit P11 report. The petitioner made requests before the Disciplinary Authority to absolve him of the charges. However, long thereafter, by W.P.(C).No.11825/09 3 Exhibit P13 proceedings dated 20.03.2009, the 3[rd] respondent, Executive Engineer informed the petitioner that the Board had decided to make good the financial loss of Rs.2,11,164.90 from the petitioner. Exhibit P3 order was later cancelled by Exhibit P14 letter dated 17.4.2009 on the ground that it was issued without issuing a show cause notice and was therefore not in accordance with the Rules. Soon thereafter, Exhibit P15 notice was issued requiring the petitioner to show cause why the proposed punishment/recovery should not be inflicted. After narrating the facts, Exhibit P15 reads as follows: “The Legal Adviser and Disciplinary Enquiry Officer, K.S.E.Board issued an amended Memo of Charges vide reference cited 14[th] and the loss sustained to the Board was amended as Rs.2,11,164.90 for the period from 29.6.2989 to 17.4.1998. The Legal Adviser and Disciplinary Enquiry Officer, K.S.E.Board submitted the report vide reference cited 15[th] . After perusing the enquiry report and inspection report of the Regional Audit Officer, Thiruvananthapuram, the Board had ordered to make good the financial loss of Rs.2,11,164.90 sustained to the Board from the delinquent vide reference cited 17[th] . The undersigned has examined the connected files and reports and found that there is some serious lapses and dereliction W.P.(C).No.11825/09 4 of duty on your part, by which the Board has sustained huge financial loss. Hence, it is decided to recover an amount of Rs.2,11,164.90 from your DCRG and other pensionary benefits and balance, if any, be recovered through Revenue Recovery Action invoking Public Accountants Act, 1963. Therefore, you, Shri.K.P.Appukuttan, Senior Assistant (Rtd) are required to show cause why the proposed punishment/recovery should not be inflicted upon you. Your reply, if any, should reach this Office within 15 days from the date of receipt of othis Notice, failing which the case will be finalised on the presumption that you have nothing to offer.” This is under challenge in this writ petition and an order of stay of recovery was issued by this Court. 4. Heard the learned counsel for the petitioner and the learned standing counsel appearing for the Board. - 5.It is submitted by the learned counsel for the petitioner in these cases that the proposal for imposition of penalty of recovery of alleged loss on the petitioner 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) W.P.(C).No.11825/09 5 Regulations 1969. It is submitted by the learned 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 proceeded to impose the penalty of recovery. In that view of the matter, it is contended that the action of the disciplinary authority was vitiated. The learned counsel for the petitioner places reliance on the decisions of this Court reported in **S.Gopalakrishnan Nair v. Secretary to Government and another** [2007 (3) KHC 660] , **Thomas C.V. v. KSEB and others** [2008 KHC 4841], **Joseph C.K. v. Kerala State Electricity Board and others** [2015 (4) KHC 701]. The decision in **Kerala State Electricity Board, Thiruvananthapuram and Another v. K.Kesavan** [2014(3) KHC 167] is relied upon to contend that W.P.(C).No.11825/09 6 where amounts are not quantified with notice to the pensioner within three years of retirement, no amounts can be recovered. Learned counsel for the petitioner also placed reliance on **Steel Authority of India Ltd., New Delhi and others v. M.R.Surendradas** [2014 (2) KHC 474], **SBI and others v.Arvind K.Shukla** [2004 KHC 2079] and **Punjab National Bank v. S.P.Geol** [1998 KHC 561] to 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. 6. The learned standing counsel appearing for the respondent would contend that Exhibit P15 is only a show cause notice proposing penalty and the petitioner has also submitted his reply. It is, therefore, contended that the challenge would be maintainable only as against a final order in disciplinary proceedings. 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 W.P.(C).No.11825/09 7 out in the show cause notice. It is contended that the finding in the enquiry report that the charges stand disproved does not amount to exoneration. 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 had been met and there is no illegality in the order of imposition of punishment. - 7.It is further contended that findings of fact recorded by the enquiry officer are not binding on the disciplinary authority (see **Union of India v. H.C.Goel** [1964 KHC 445]. The decision in **State of Haryana and another v. Rattan Singh** [1977 KHC 558] is relied on to contend that sophisticated rules of evidence do not apply in a domestic enquiry. The decision of the Apex Court in **Sharma R.C. v. Union of India** [1976 KHC 865] is also relied on to contend that the power of othis Court to interfere in disciplinary matters is limited to examining the procedure followed. - 8.I have considered the contentions advanced. Regulation 16 (12)(i)(a) of the Kerala State Electricity Board Employees W.P.(C).No.11825/09 8 (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.” 9. 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:- W.P.(C).No.11825/09 9 “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.” 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 W.P.(C).No.11825/09 10 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 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.” 10.In the instant case also, the Enquiry Officer had clearly found that the charges levelled against the petitioner that he caused W.P.(C).No.11825/09 11 revenue loss to the Board by his conduct stands disproved and that he is liable to be exonerated of the charges. This conclusion is reached after a fullfledged enquiry and after considering the evidence adduced. It is not in dispute that it is for the disciplinary authority to consider the enquiry report and decide as to the imposition of a penalty. However, the disciplinary authority cannot altogether discard the enquiry report and pass orders inflicting penalty without even adverting to the report. The issuance of a show cause notice which does not even refer to the findings in the report of the formal enquiry would render the entire exercise of formal enquiry a farce and an eye wash. If power is conceded to the disciplinary authority to ignore the enquiry report, the entire procedure prescribed for the imposition of major penalty would be rendered redundant. The disciplinary authority would be enabled to issue orders in major penalty proceedings also, only on the basis of its subjective satisfaction on the reply furnished to the memo of charges. This, according to me, is definitely not the intention of the authorities in framing detailed procedure for the imposition of major penalties. These W.P.(C).No.11825/09 12 procedures are intended as safeguards against arbitrary exercise of disciplinary power. As such, this court is obliged to see that the procedures are followed while passing orders in disciplinary matters. - 11.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, from Exhibit P15, it is clear that the disciplinary authority had completely disregarded the findings in the Enquiry Report and had issued a show cause notice to the petitioner requiring him to show cause as to why the proposed punishment should not be imposed. The requirement of the delinquent employee being put on notice before the disciplinary authority decides on the question of differing from the findings of the enquiry has also been given a go by in this case. - 12.It is clear from a perusal of the documents produced that the proceedings for imposition of major penalty had been initiated against the petitioner. After having conducted a full fledged enquiry, the disciplinary enquiry cannot short circuit the said proceedings by ignoring the enquiry report and imposing a W.P.(C).No.11825/09 13 punishment of recovery on the retired employee. The allegation of causing loss having been found not proved in the enquiry, the disciplinary authority was duty bound to forward a copy of the enquiry report and inform him why the findings are being differed from. On finding that the enquiry report is not to its liking, the disciplinary authority cannot change the procedure mid-way and impose a minor penalty without following due procedure. This Court has in **Vaijayanthi v. State of Kerala** [2003(3) KLT 1055] held that after having initiated proceedings for imposition of major penalty, the disciplinary authority cannot make a short cut and inflict a minor penalty without following due procedure. Earlier decisions on the point reported in **Raveendranath v. District Collector, Palghat** [1984 KLT 564] and **Eacharan Ittiath v. State of Kerala** [1970 KLT 1069] have been relied on in the judgment. Going by the decisions of this Court referred to above, the procedure followed in the instant case is erroneous. 13.In that view of the matter, I am of the opinion that the show cause notice issued by the disciplinary authority proposing the W.P.(C).No.11825/09 14 punishment of recovery of loss from the petitioner in this writ petition is illegal and unsustainable. The show cause notice impugned in this writ petition is therefore set aside. In view of the fact that the allegation is with regard to the period from 1989 to 1998 and the writ petitioner has already retired from service on 30.11.2008 as also taking note of the fact that no steps had been taken by the Board pursuant to Exhibit P15 show cause notice dated 6.5.2009, I am of the opinion that no purpose will be served by directing the respondents to continue the action taken against the petitioner 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 proceedings as against the petitioner. In the result, the impugned show cause notice is set aside. The writ petition is allowed. sd/- **Anu Sivaraman, Judge** sj