N.V. Sunil v. Kerala State Electricity Board Ltd. & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 17TH DAY OF NOVEMBER 2017/26TH KARTHIKA, 1939 WP(C).No. 21569 of 2017 (U) ---------------------------- PETITIONER : ---------------- N.V.SUNIL AGED 40 YEARS, S/O. VELUTHA, ASSISTANT ENGINEER (ELECTRICAL), KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, PALARIVATTOM AND NOW AT ELECTRICAL SECTION NEDUMKANDOM ON WORKING ARRANGEMENT (RESIDING AT NIKARTHIL, EZHUPUNNA PO., NEENDAKARA, CHERTHALA BY ADVS.SMT.SHAMEENA SALAHUDHEEN SMT.S.SIMY RESPONDENTS : - ------------------- 1. KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM PIN-695004 2. CHAIRMAN AND MANAGING DIRECTOR KERALA STATE ELECTRICITY BOARD LTD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM PIN-695004 3. CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD LTD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM PIN-695004 4. CHIEF VIGILANCE OFFICER KERALA STATE ELECTRICITY BOARD LTD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM PIN-695004 5. CHIEF INTERNAL AUDITOR KERALA STATE ELECTRICITY BOARD LTD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM PIN-695004 WP(C).No. 21569 of 2017 (U) --------------------------------- 6. REGIONAL AUDIT OFFICER - KERALA STATE ELECTRICITY BOARD LTD POWER HOUSE ROAD, ERNAKULAM PIN-682018 7. DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD LTD ELECTRICAL CIRCLE, ERNAKULAM PIN-682018 8. FINANCE OFFICER RESIDENT CONCURRENT OFFICE O/O CHIEF INTERNAL AUDITOR, KERALA STATE ELECTRICITY BOARD LTD VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM PIN-695004 (ENQUIRY OFFICER APPOINTED DBY ORDER DATED 25.02.2017) R1 to R8 BY ADV. SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMIT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-11-2017, THE COURT ON 17-11-2017 DELIVERED THE FOLLOWING: WP(C).No. 21569 of 2017 (U) --------------------------------- ## APPENDIX PETITIONER'S EXHIBITS : ----------------------------- EXHIBIT P1: A TRUE COPY OF THE JUDGMENT DATED 29.01.2014 IN WRIT PETITION (CIVIL) NO.2835/2014 EXHIBIT P2: TRUE COPIES OF THE FINAL ORDERS OF ASSESSMENT DATED 28.02.2014, 02.09.2013 AND 02.08.2013 ISSUED BY THE PETITIONER IN HIS CAPACITY AS ASSESSING OFFICER UNDER SECTION 126(3) OF THE ACT OF 2003 EXHIBIT P3: A TRUE COPY OF THE MEMO OF CHARGES ANDSTATEMENT OF ALLEGATIONS DATED 30/08/2016 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P4: A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT EXHIBIT P5: A TRUE COPY OF THE ORDER DATED 25.02.2017 ISSUED BY THE 3RD RESPONDENT EXHIBIT P6: A TRUE COPY OF THE NOTICE DATED 08.06.2017 ISSUED BY THE 8TH RESPONDENT TO THE PETITIONER RESPONDENTS' EXHIBITS : ------------------------------- EXT.R3(A) : TRUE COPY OF THE LETTER RAO/EKM/GENL/2014-15/188 DATED 27.03.2015 ISSUED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT. - EXT.R3(B) : TRUE COPY OF THE REPORT DATED 12.01.2015 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXT.R3(C) : TRUE COPY OF THE REGISTERED NOTICE NO.RCA/FO/ENQUIRY NOTICE - 1/2017-18 DATED 10.05.2017. ttb /TRUE COPY/ PA TO JUDGE ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.21569 of 2017 ----------------------------------------------Dated this the 17[th] day of November, 2017** ## **JUDGMENT** It is a well-settled legal position in service jurisprudence that an appellate authority is entitled to initiate disciplinary action against an employee, however, the exercise of such power shall not prejudice the right of appeal of the delinquent employee. 2. This is a case where Ext.P3 is issued by the Chief Engineer against the petitioner, initiating disciplinary action and also serving the charge sheet on the petitioner, under various circumstances including financial loss caused to the KSEB on account of alleged illegal reduction of penalty, and colluding with the contractor to remove materials belonging to the KSEB other than the one permitted to be removed. Material facts for the disposal of the writ petition are as follows: 3. Petitioner is an Assistant Engineer (Electrical) in Kerala State Electricity Board (KSEB), working at Electrical Section, Nedumkandom , on working arrangement. During his **W.P.(C) No.21569 of 2017** 2 incumbency at Electrical Section, Thoppumpady, petitioner has discharged the duties as the Assessing Authority in contemplation of Sec.126(3) of the Electricity Act, 2003 (hereinafter called, 'the Act, 2003'). According to the petitioner, by virtue of Notification dated 02.03.2005 published in the Gazette dated 03.03.2005, Government of Kerala has designated and appointed Assistant Engineers of the concerned electrical distribution Section Offices as Assessing Authorities. 4. Pursuant to inspections carried out by various authorities in the Board, provisional assessment orders were issued to various consumers under Sec.126(1) of the Act, 2003. The assessees have preferred objections, which were considered by the petitioner in his capacity as the Assessing Officer under Sec.126(3) of the Act. According to the petitioner, on consideration of facts and circumstances raised by the respective parties, petitioner issued final orders of assessment as per Sec.126(3) of the Act, either modifying or accepting the provisional assessment. It is also submitted that, as per Ext.P1 judgment dated 29.01.2014, this Court has quashed an order passed by the petitioner. It is further submitted that, final orders were passed by the petitioner after 3 **W.P.(C) No.21569 of 2017** considering the objections filed by the assessees and some of them are produced as Ext.P2 series. The contention of the petitioner is that, while exercising the said duties cast upon him, acted in good faith and in accordance with law, and therefore, he is entitled for protection as contemplated under Sec.168 of Act, 2003. 5. However, all on a sudden, petitioner is served with Ext.P3 memo of charges and statement of allegations dated 30.08.2016. According to the petitioner, Ext.P3 is manifestly erroneous, as the 3rd respondent is not the authority competent to issue statement of allegations and memo of charges. In so far as the petitioner is concerned, the 3rd respondent is not his disciplinary authority, and the 7th respondent is the disciplinary authority. Therefore, it is the contention of the petitioner that Ext.P3 is vitiated by inherent lack of jurisdiction. 6. The 3rd respondent in accordance with the KSEB Employees (CC&A) Regulations, 1969 (hereinafter called, 'the Regulations, 1969') is the appellate authority, who has taken disciplinary action against the petitioner, and by doing so, the 3rd respondent precisely shuts down the statutory remedy of 4 **W.P.(C) No.21569 of 2017** the petitioner to prefer appeal as against any adverse orders passed, pursuant to allegations raised in Ext.P3. 7. It is also contended that, the factual circumstances mentioned in Ext.P3 cannot be sustained under law, and various explanations are offered by the petitioner in the writ petition, traversing through the factual circumstances mentioned in Ext.P3. However, fact remains, petitioner has submitted Ext.P4 against Ext.P3 charge memo issued to the petitioner. The 3rd respondent has appointed the 8th respondent as the enquiry officer to conduct the enquiry into the allegations made in the charge memo. 8. A detailed counter affidavit is filed by the respondents, stating that the legal contentions raised by the petitioner cannot be sustained under law, in view of the specific provisions contained under Regulations, 1969, and the 3rd respondent is vested with all powers to initiate action against the petitioner. The factual circumstances raised by the petitioner in the writ petition in respect of Ext.P3 charge memo are dealt with in the counter affidavit. According to the respondents, Ext.P3 charge memo is justified, since the Board, consequent on the action of the petitioner, suffered huge loss 5 ## **W.P.(C) No.21569 of 2017** running to lakhs of rupees, and therefore, unless and until an enquiry is conducted, the truth and reality cannot be unravelled. 9. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and denying the statements made in the counter affidavit. 10. Heard learned counsel for the petitioner and the learned Standing Counsel appearing for the KSEB. Perused the documents on record and the pleadings put forth by the respective parties. 11. The first and formost contention advanced by learned counsel for the petitioner is that, the 3rd respondent is not the appointing authority of the petitioner, and therefore, the 3rd respondent is not empowered to take action against the petitioner. Moreover, it is contended that, since the 3rd respondent is the appellate authority, consequent to initiation of action by the said respondent as per Ext.P3, petitioner has lost the right of appeal, which is deprecated by the apex court in the judgments in _**'Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank and others'**_ [1995 (2) SCC 474 : 1995 KHC 793] and _**'Electronics**_ 6 **W.P.(C) No.21569 of 2017** ## _**Corporation of India v. G. Muralidhar'**_ [2001 (10) SCC 43 : 2001 KHC 1204] 12. “Appointing Authority” is defined under Regulation 2 - (a) of Regulations, 1969, in relation to a Board employee means: _“(i) the authority empowered to make appointments to the service, class or category of which the Board employee is for the time being a member; or_ _(ii) the authority empowered to make appointments to the post which the Board employee for the time being holds; or_ _NOTE: Where the power of appointment is delegated to any authority that authority will be deemed to be the Appointing Authority._ _(iii) the authority which appointed the Board employees to such service, class, category or post, as the case may be; or (iv) Where the Board employee having been a permanent or temporary member of any other service, class or category or having substantively x x x x x x”._ 13. 'Disciplinary Authority' is defined under Regulation 2 (b) to mean, “in relation to the imposition of a penalty on a Board employee, means the authority competent under these regulations to impose on him that penalty”. As per Regulation 3, the regulations shall apply to all employees under the service of the Board, except the persons exempted thereunder. **W.P.(C) No.21569 of 2017** 7 14. 'Appointing Authorities' are specified under Regulation 9, which read thus: _“All appointments to the Board services and Board subordinate services shall be made by the Board._ _Provided that the Board may, by general or special orders or regulations and subject to such conditions as they may specify delegate to any other authority the power to make such appointments”._ 15. According to the petitioner, in accordance with the power so conferred for delegation, Board has issued an order dated 26.11.1997, bearing B.O.No.2627/97 TC2(B) 1071/96, wherein, as per clause 1.1.3, the Deputy Chief Engineer (Administration)/Electrical is delegated with power to function as the appointing authority to all the categories of posts, up to and including Assistant Engineer and Senior Superintendent. Therefore, according to the petitioner, the Deputy Chief Engineer is the appointing authority of the petitioner and the Chief Engineer is the appellate authority. In that view of the matter, when Ext.P3 action is initiated by the 3rd respondent, petitioner has lost the remedy of appeal to the 3rd respondent. 16. However, Regulation 23 of Part-VI of Regulations, 1969 deals with appeals against orders of suspension, which read thus: “A Board employee may appeal against the order of 8 **W.P.(C) No.21569 of 2017** suspension to the authority to which the authority which made or is deemed to have made the order is immediately subordinate”. 17. Regulation 24 deals with appeals against order imposing penalties, which read thus: _“Every member of service Board or subordinate shall be entitled to appeal as hereinafter provided, against an order,_ _(a) imposing upon him any of the penalties specified in regulation 11(1); or_ _(b) discharging him in accordance with the terms of his contract if he has been engaged on a contract for a fixed or for an indefinite period and has rendered under either form of contract continuous service for a period exceeding five years at the time when his services are terminated; to the authority to which the authority imposing the penalty is immediately subordinate._ _Provided that where an order is passed by the Board, there shall be no appeal”._ 18. Therefore, the afore-quoted provisions make it clear, an appeal lies to an immediate superior authority. Nowhere under Regulations, 1969, it is stipulated that the appointing authority alone is vested with power to initiate disciplinary action against an employee of the Board. On the contrary, regulation 24 makes it clear that, an appeal can be preferred against any punishment to the immediate superior **W.P.(C) No.21569 of 2017** 9 authority. Therefore, if and when the Chief Engineer passes an order of punishment on Ext.P3 proceedings, the remedy of the petitioner is to prefer an appeal to the Board, who is the immediate superior authority of the Chief Engineer. The proviso contained under Regulation 24 makes it amply clear that, if the Board has passed any order, there shall be no appeal, which thus also means that, only an appeal is contemplated from the order passed by the disciplinary authority, and there is no power of revision. Therefore, the contention raised by the petitioner that petitioner has lost right of remedy of appeal consequent to the action taken by the 3rd respondent cannot be sustained under law. Moreover, regulation 12(1) empowers the Board or any other disciplinary authority competent under the regulations to impose on a Board employee any of the penalties specified in regulation 11. 19. Even though petitioner has canvassed the proposition by heavily relying upon the afore-quoted judgments, in my considered opinion, they are rendered under different factual and legal circumstances, wherein clear cut remedies are provided under the relevant statutes for preferring appeal etc. etc. In view of the specific provisions **W.P.(C) No.21569 of 2017** 10 contained under Regulations, 1969, quoted above, petitioner is not entitled to get the benefit of the proposition of law laid down by the apex court in the afore-quoted judgments. Therefore, the legal circumstances reckoned is a clear indicia to arrive at a safe conclusion that, there can be no hard and fast rule to apply the legal principle in question, or rather it depends on law, and facts and circumstances of each case. 20. The next contention advanced by learned counsel for the petitioner is that, petitioner is entitled to get protection as per Sec.168 of the Electricity Act, 2003, which read thus: _**“168. Protection of action taken in good faith:** --No suit, prosecution or other proceeding shall lie against the appropriate Government or Appellate Tribunal or the Appropriate Commission or any officer of Appropriate Government, or any Member, Officer or other employees of the Appellate Tribunal or any Members, officer or other employees of the Appropriate Commission or the assessing officer or any public servant for anything done or in good faith purporting to be done under this Act or the rules or regulations made thereunder.”_ 21. It is true that any action taken in good faith, petitioner is entitled to get protection. However, in this case, the action taken by the petitioner allegedly in good faith is suspected, consequent to various factual circumstances pointed out in Ext.P3 charge memo. Moreover, petitioner is not entitled to get any benefit based on Ext.P1 judgment, for 11 **W.P.(C) No.21569 of 2017** the reason that, in Ext.P1 judgment, this Court has set aside the assessment since without considering the objection submitted by the petitioner, order of assessment was passed. Be that as it may, on a perusal of Ext.P3, it is evident, it is issued not only based on assessment, but also on various other factors, like, helping a contractor to remove various materials of the KSEB in the pretext of removing scrap permitted to be removed by the contractor. 22. When the issue involved is based on factual circumstances, this Court will be reluctant to sit over the same, and attempt to decipher the issues, in order to grant any relief to the petitioner, exercising the power of judicial review. An enquiry is ordered against the petitioner not as a punishment, but to unravel the truth in respect of various aspects mentioned in Ext.P3 charge memo. It is also done, providing an opportunity to prove the innocence of the petitioner also. Therefore, the petitioner cannot be heard to say that, the charge memo issued is creating any adverse legal consequence to the petitioner, other than to face the same in accordance with law. 12 **W.P.(C) No.21569 of 2017** 23. Taking into account the factual and legal circumstances pointed out above, I am of the considered opinion that there is no illegality or arbitrariness in Ext.P3 order passed by the 3rd respondent, justifying interference of this Court under Article 226 of the Constitution of India. Resultantly, writ petition fails and accordingly, it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/10.11.2017