M.T. Antony v. Kerala State Electricity Board

W.P(C).18365/2014 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS TUESDAY, THE 5[TH] DAY OF APRIL 2022 / 15TH CHAITHRA, 1944** **WP(C) NO. 18365 OF 2014** ## **PETITIONER/S:** M.T. ANTONY, ASSISTANT ENGINEER, 66 KV SUB STATION, KERALA STATE ELECTRICITY BOARD, EDATHALA, ALUVA, ERNAKULAM DISTRICT. BY ADVS. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY ## **RESPONDENT/S:** 1 KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004, REPRESENTED BY ITS CHIARMAN 2 THE CHIARMAN KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. 3 THE CHIEF ENGINEER H.R.M KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004. 4 THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD, PERUMBAVOOR, ERNAKULAM DISTRICT, PIN - 683 542. BY ADVS. SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED, SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2022, THE COURT ON 05.04.2022 DELIVERED THE FOLLOWING: W.P(C).18365/2014 2 ## **JUDGMENT** The petitioner was an Assistant Engineer in the establishment of the first respondent Kerala State Electricity Board. While he was serving as the Sub Engineer, on 09.02.2007, he visited the premises of consumer No. 6088 of M/s.Delta Plywoods and Boards and the reading recorded by him was 9162 units. Subsequently, on a random check conducted by the Vigilance Wing of the KSEB, which included the petitioner himself on 20.02.2007, it was found that the meter reading was 19007.93 units. Alleging that, there was wide variation noted between the actual recorded consumption in the meter and the reading posted in the meter reading register for billing purpose and that the petitioner has manipulated the readings and thereby committed dereliction of duty and caused revenue loss to the tune of Rs.11,07,513/-. Proceedings were launched against the petitioner. It was stated that, an assessment bill for Rs.9,26,684/- was issued to the customer. It was alleged that, towards the revenue loss, Rs.1,80,829/was liable to be recovered from the petitioner herein, independently and severally and will be responsible for Rs.9,26,684/- assessed, if the amount could not be recovered from the consumer. On the basis of this allegation and few other allegations, Ext.P1 memo of charges dated 30.07.2007 was served on him. A reply was given by him as Ext.P2. He W.P(C).18365/2014 3 replied that, though he had recorded the meter reading of consumer No.6088, there appeared a human error in the meter reading recorded. According to him, meter reading recorded by him was the one found at the time of inspection. When compared with the earlier readings, there was no reason for him to suspect any manipulation. It was also stated that, when the meter reading was conducted on 20.02.2007, the meter was opened and after removing the dirt, correct meter reading was taken. Hence, he explained that the mistake occurred due to a human error and there was no manipulation involved. 2. Based on Ext.P2 reply, an enquiry was conducted and Ext.P11 enquiry report dated 06.10.2010 was submitted. Thereupon, petitioner was issued with Ext.P3 show cause notice by the Chief Engineer, Electrical Wing, calling upon him to show cause as to why a penalty of barring of one increment with cumulative effect of one year and recovery of the loss sustained by KSEB shall not be imposed on him. He submitted Ext.P4 reply, inter alia, contending that he was not issued with the copy of the Enquiry report. By Ext.P5 proceedings, penalty was imposed on him barring one increment with cumulative effect. It was also proposed to recover Rs.1,80,829/- from the petitioner with interest. 3. Aggrieved by the above penalty, Ext.P6 appeal was preferred to the Chief Engineer. It was dismissed, whereupon Ext.P10 revision W.P(C).18365/2014 4 was submitted to the Chairman. It was dismissed by Ext.P12 proceedings. 4. Aggrieved by the above proceedings petitioner has approached this Court, inter alia, challenging Ext.P5 order imposing penalty, Ext.P6 the order dismissing the appeal, Ext.P11 the enquiry report and Ext.P12 the order dismissing the revision. 5. Heard the learned counsel for the petitioner and the learned standing counsel for the KSEB. 6. The essential facts are not in dispute. Since the writ petition was pursued by the learned counsel for the petitioner on a short legal question, that alone is considered. Shorn of all other details, the crux of the contention set up by the learned counsel for the petitioner was that, though Ext.P11 enquiry report was submitted, without furnishing a copy of the enquiry report, penalty was proposed to be imposed on him by Ext.P5. It was contended that, by Ext.P5, the employer concurred with the conclusions arrived at by the disciplinary authority and proposed barring of one increment with cumulative effect as penalty. This was irregular, illegal and vitiated the entire enquiry proceedings. Consequently, all other further proceedings which culminated in Exts.P6 and P12 and the enquiry report Ext.P11 are liable to be set aside, it was contented. 7. In reply, the learned standing counsel for the KSEB W.P(C).18365/2014 5 specifically contended that the petitioner was served with a copy of the enquiry report and only after consideration of his objections, the entire facts, materials gathered and after giving a reasonable opportunity to the petitioner to raise his objection, penalty was imposed on him. It was contended that in Ext.P2 reply, virtually, the petitioner had admitted the guilt. Consequently, he cannot raise a contention regarding the non supply of enquiry report. It was also contended that, no prejudice has been caused to the petitioner. 8. For a proper evaluation of the entire facts, it is essential to refer to Ext.P11 enquiry report. In the enquiry report, it was found that the first part of charge was not proved against the petitioner. Second part of the charge was that, there was a meter reading on 09.02.2007 in which the petitioner recorded as 9162 units. But in the check reading on 20.02.2007, it was found to be 19007.93 units and there was wide variation in the actual recorded consumption in the meter and the reading posted in the meter reading register for billing and thereby there was manipulation. Though the enquiry officer found that there was error in the actual consumption in the meter and the meter reading register used for billing, the chances of manipulation could not be established by the prosecution. Regarding the second charge, it was found that, it was proved only partially. Third charge was found to be not established. The fourth part of the charge was regarding the loss of W.P(C).18365/2014 6 revenue to the Board. Consequently, it was concluded that, there was a loss to the KSEB to the tune of Rs.11,07,513/- and the delinquent was also responsible for the loss. Ext.P11 report is dated 06.12.2007 of the Deputy Chief Engineer, Electrical Circle, Perumbavoor. Pursuant to the above, Ext.P3 show cause notice dated 20.04.2011 was issued to him by the Deputy Chief Engineer, Electrical Circle, Perumbavoor. After referring to the enquiry report, it was recorded as follows: “Hence, it is found on examination of the departmental enquiry report with relevant records of the issue that laxity and dereliction of duty on the part of Sri.M.T.Antony, Sub Engineer in not recording the proper meter reading of Con.No.6088/LTIV (M/s.Delta Plywoods and Board) is clear and that, Sri.M.T.Antony is responsible for the loss caused to KSEB as per the 4[th] charge along with Sri.Michael C.A., Sub Engineer (Rtd). Hence, it has been decided to recover the loss sustained by KSEB from you as per the charge proved in the departmental enquiry and to propose the punishment of barring one annual increment with cumulative effect for one year against you in the instant departmental case. Hence, you Sri.M.T.Antony, Sub Engineer is required to show cause why the proposed punishment of barring one annual increment with cumulative effect for one year and recovery of the loss sustained by KSEB as proved in the departmental enquiry should not be imposed on you. You have requested to submit your reply in this regard within 15 days from the date of receipt of this show cause notice, failing which the matter will be decided on the presumption that you W.P(C).18365/2014 7 have nothing to offer in this regard.” 9. Show cause notice was replied by Ext.P4. In the above reply, in paragraph 2, it was specifically stated that, the enquiry report was not furnished to him, despite that major penalty was proposed to be imposed against him. However, he has stated that, he has submitted reply on the basis of the materials and information available with him. He submitted that he was not guilty of the charges stated to be proved at the enquiry. Thereafter, he proceeded to give his own explanation on the basis of facts within his knowledge. Ext.P4 was followed by Ext.P5 proceedings, by which, a penalty of barring of one annual incident with cumulative effect of one year was proposed and the recovery of Rs.1,80,829/- from the petitioner was also confirmed. It was thereafter, Ext.P6 appeal and revision were submitted before the appropriate authorities. 10. The short point on which the entire proceeding is challenged is that the enquiry report was not served on the petitioner before penalty was imposed. It was contended by the learned counsel for the petitioner that Ext.P3 show cause notice undoubtedly discloses that the authority has concurred with the findings arrived at by the disciplinary authority. It also discloses that the authority has also made up its mind regarding the penalty proposed to be imposed. A reference to the quoted version in Ext.P3 clearly shows that the authority had concluded W.P(C).18365/2014 8 that, on examination of the enquiry report with relevant records, the laxity and dereliction of duty on the part of the petitioner was clear and that, he was responsible for the loss caused to the KSEB. It was also informed that, they have decided to recover the loss sustained by the KSEB from him. It was also revealed that, a penalty of barring one increment with cumulative effect of one year and recovery of the loss suffered by the KSEB was proposed to be imposed on him. These facts clearly show that, on the strength of Ext.P11 enquiry report, the superior authority had arrived at a conclusion regarding the penalty proposed to be imposed and Ext.P3 was clearly a notice calling upon him to show cause on the proposed penalty. It seems that, after Ext.P4 reply, as an after thought, enquiry report was sent to him. In Ext.P5, as 7[th] reference, the objections against enquiry report submitted by the petitioner was referred. In Ext.P3, there is absolutely no reference regarding any objection filed before Ext.P3 was issued. Evidently, petitioner was not supplied with the enquiry report before Ext.P3 was issued. 11. A reference to Ext.P5 shows that, the same authority which had issued Ext.P3 notice had arrived at the same conclusion and imposed the same penalty which was proposed in Ext.P3. There is nothing on record to show that he had specifically considered the objections raised by the petitioner. Not only that, clear non application W.P(C).18365/2014 9 of mind and that, it was only mechanically following the conclusions arrived at in Ext.P3 and to that extent, the authority was predetermined, is evident from the penultimate paragraphs of Ext.P5 which shows that, the punishment of barring one annual increment with cumulative effect for one year was “confirmed”. The proposal to recover the amount was also “confirmed”. This clearly shows that, the authority was predetermined and the objections to the enquiry report had no impact on the application of mind by the authority. 12. Regarding the legal position involved, the learned counsel for the petitioner specifically referred to the decision of the Constitution Bench in **Managing Director, ECIL, Hyderabad v. B.Karunakar [1993 KHC 995]** . In the above decision, after consideration of the entire case law on the subject of disciplinary proceeding, it was held that, on conclusion of the enquiry, the inquiry report has to be furnished to the delinquent and that mandatory compliance applies to employees in all establishments whether government or non government, public or private. It was held that, furnishing of a copy of the enquiry report, whether asked for it or not, was the right of the employee to have the report, to defend himself effectively. It was held that, denial of enquiry report vitiates the enquiry and the Courts are competent to pass appropriate orders accordingly. It was also held that, non furnishing of a copy of the report W.P(C).18365/2014 10 may have prejudiced the employee gravely and in some other case, it may not make no difference to the ultimate punishment. It was held that, the Court should appropriately mould the relief and in appropriate cases, relief can go to the extent of reinstatement with back wages. 13. The authoritative pronouncement of Honourable Supreme Court in ECIL's case was followed in several other decisions. In **Sudhakaran C.B (Dr.) v. Cochin Educational Society and Another** **[2009(1) KHC 685],** elaborating the above, the Division Bench of this Court held that the position of law was settled that furnishing a copy of the enquiry report before accepting the same by the employer and proposing a punishment, is a mandatory requirement of the principles of natural justice. As such, a report also forms part of the proceedings in a disciplinary action, based on which the management decides as to whether punishment should be imposed or not. Therefore, it is not only the materials before the enquiry, but the enquiry report also forms the basis of further action and in the light of the decision by the Apex Court, if the report is not furnished to the delinquent employee, before arriving at a conclusion as to accept or reject the finding thereof, will certainly vitiate the disciplinary action taken against him. If an opportunity is not given in the manner as laid down by the Apex Court by furnishing a report it virtually denies the delinquent a fair opportunity of being heard in the matter. In that case, Division Bench W.P(C).18365/2014 11 held that, a failure to supply a copy of the enquiry report to the delinquent employee before accepting the finding thereon has vitiated the disciplinary proceedings. 14. A learned Single Judge, in **Purushothaman A and Another** **v. State Farming Corporation of Kerala Ltd. and Others [2019 KHC 113]** following the above decision held that the imposition of penalty on the petitioners without serving a copy of the enquiry report and without giving them an opportunity to show cause against enquiry report, definitely vitiates the enquiry proceedings. 15. In the light of the above authoritative pronouncements, appreciated in the background of the facts of the case, it is evident that the non supply of the enquiry report on the petitioner has vitiated the proceedings which culminated in Ext.P3 and P5. Hence, the above is liable to be interfered. 16. Regarding the question of prejudice that is caused on the petitioner, learned counsel for the petitioner specifically invited my attention to Ext.P3 and P5. According to the learned counsel, after Ext.P5, penalty was not directly imposed. As an after thought, after serving a copy of the enquiry report and obtaining the objections from the petitioner, the authority virtually confirmed the conclusions arrived at in Ext.P3, and the very same penalty that was proposed in Ext.P3 was “confirmed” and imposed on him. It shows that the authority was W.P(C).18365/2014 12 predetermined and had a closed mind regarding the objections raised. It is to be noted that, there was a specific finding that he had not committed any manipulation. He had also explained the circumstance under which the meter reading was mistakenly recorded by him. The authority clearly did not consider these facts and mechanically arrived at Ext.P5. Ext.P6 also clearly shows that the appellate authority merely followed the lines of the lower authority. In the last paragraph of the proceedings rejecting the appeal, it was stated that, on examining the Anti-power Theft Squad Inspection Report, Vigilance Enquiry Report and Detailed Enquiry Report, the authority was satisfied that there was serious lapse on the part of the petitioner in not recording the actual meter reading, incurring huge monetary loss. These conclusions clearly show that the explanation offered by the petitioner regarding the circumstances under which the meter reading was wrongly recorded has not been appreciated. The authority also did not appreciate the fact that the enquiry officer has specifically found that there was no manipulation. Non application of mind by the appellate authority is patent from Ext.P6 and consequently, Ext.P6 is also liable to be set aside. 17. Ext.P12 is the conclusion arrived at by the Chairman and Managing Director who considered the revision petition filed by the petitioner. In Ext.P12, the authority has stated that the averments W.P(C).18365/2014 13 advanced by the petitioner are the same as adduced during the initial disciplinary proceedings and there are no new or more convincing facts to upturn the initial order. By this stray sentence the review petition was dismissed. This also clearly shows that the revisional authority did not apply its mind and did not even consider the objections raised by the petitioner and the explanation regarding the circumstances under which the mistake occurred. 18. The above facts disclose that, Exts.P5, P6 and P12 cannot be sustained in the eye of law and are liable to be set aside. The penalty imposed was of barring of one increment. At the time of hearing, learned counsel for the petitioner conceded that, petitioner had retired on 31.10.2020 as an Assistant Engineer. In the light of setting aside of Exts.P5, P6 and P12, necessarily the parties will have to be relegated to the stage where the enquiry report was submitted. The Board shall issue fresh notice to the petitioner calling upon the explanation of the petitioner regarding the conclusions arrived at by the enquiry officer in ExtP11 and pass orders therein, after giving him a reasonable opportunity in accordance with the law laid down in ECIL's case. Necessarily, the right of the petitioner to challenge any penalty, if imposed, in appeal and revision will consequentially follow. Writ petition is liable to be allowed to the above extent. In the result, writ petition is allowed. Exts.P5, P6 and P12 W.P(C).18365/2014 14 are set aside. The Board is directed to call upon the petitioner to submit his explanation regarding the conclusions arrived at by the enquiry officer and if he propose to file any fresh objection on consideration of it, and if not, based on the objections already filed, appropriate orders shall be passed, within one month from the date of receipt of this judgment. Writ Petition is allowed as above. **Sd/SUNIL THOMAS JUDGE** **Sbna/** W.P(C).18365/2014 15 ## **APPENDIX OF WP(C) 18365/2014** PETITIONER EXHIBITS EXHIBIT P1 : TRUE PHOTOCOPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION BEARING NO.GB2/DISC. ACTION/3/07-08/1836 DATED 30.07.2007 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT EXHIBIT P2 : TRUE PHOTOSTATCOPY OF THE REPLY DATED 24.10.2007 SUBMITTED BY THE PETITIONER EXHIBIT P3 : TRUE PHOTOCOPY OF THE SHOW CAUSE NOTICE BEARING NO.GV/DISC.ACTION/3/07-08/246 DATED 20.04.2011 EXHIBIT P4 : TRUE PHOTOCOPY OF THE REPLY TO EXT-P3, SUBMITTED BY THE PETITIONER EXHIBIT P5 : TRUE PHOTOCOPY OF THE ORDER BEARING NO.GV/DA/2011-2012/4751 DATED 17.02.2012 EXHIBIT P6 : TRUE PHOTOCOPY OF THE ORDER BEARING NO.EBVS.3/3/2012/841 DATED 09.11.2012 ISSUED BY THE 3RD RESPONDENT EXHIBIT P7 : TRUE PHOTOCOPY OF THE LETTER BEARING NO.VIG/AI/149/07/1114 DATED 29.05.2013 EXHIBIT P8 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 26.07.2016 FILED BY THE PETITIONER. EXHIBIT P9 TRUE PHOTOCOPY OF THE ORDER BEARING NO.EBVS.3/3/2012/273 DATED 26.04.2016. EXHIBIT P10 TRUE PHOTOCOPY OF THE REVISION/REVIEW PETITION DATED 08.01.2013 EXHIBIT P11 TRUE PHOTOCOPY OF THE ENQUIRY REPORT DATED 06.12.2007 EXHIBIT P12 TRUE PHOTOCOPY OF THE ORDER W.P(C).18365/2014 16 - NO.VIG/A1/149/2007/1016 DATED 30.05.2017 - EXHIBIT P13 TRUE PHOTOCOPY OF THE JUDGMENT DATED 26.09.2016 IN W.P.(C)NO.11526 OF 2014 (M). - EXHIBIT P14 TRUE PHOTOCOPY OF THE RELEVANT EXTRACT OF THE METER REGISTER CONTAINING THE MONTHLY ENERGY CONSUMPTION OF M/S.DELTA PLYWOODS AND BOARDS FOR 2006-2007 - EXHIBIT P15 TRUE PHOTOCOPY OF THE ORDER OF THE OMBUDSMAN DATED 28.11.2007 IN APPEAL PETITION NO.21 OF 2007 - EXHIBIT P16 TRUE PHOTOCOPY OF THE ORDER OF THE OMBUSDMAN DATED 28-11-2007 IN APPEAL PETITION NO.21 OF 2007. - EXHIBIT P17 TRUE PHOTOCOPY OF THE APPEAL DATED MARCH, 2012 FILED BEFORE THE 3RD RESPONDENT. - EXHIBIT P18 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 15.07.2020. - EXHIBIT P19 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 15.07.2020 BEFORE THE 3RD RESPONDENT. - RESPONDENT EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE LETTER DATED 08.06.2011 ADDRESSED TO THE PETITIONER.