Sainulabdheen A.S v. Kerala State Electricity Board Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** ## **WP(C).No. 7022 of 2017** ## **PETITIONER:** ## **SAINULABDHEEN A.S.** **S/O ABDUL SATHAR AHAMED, AGED 50 YEARS, SENIOR SUPERINTENDENT, KERALA STATE ELECTCRICITY BOARD LTD, ELECTRICAL SECTION, THANALUR, MALAPPURAM. RESIDING PERMANENTLY AT HOUSE NO.23/703 B, NEAR SALAFI MASJID, MADHURA COMPANY ROAD, PALLURUTHY.P.O, KOCHI.682006.** **BY ADVS. SMT.SHAMEENA SALAHUDHEEN SMT.S.SIMY** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 695004.** - **2 CHIEF ENGINEER HRM (MEMBER COVENOR, OF THE DEPARTMENTAL PROMOTION COMMITTEE), KERALA STATE ELECTRICITY BOARD LTD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.695004.** - **3 DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL CIRCLE, ERNAKULAM.682018.** - **4 ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD LTD, CONTROL ROOM, ERNAKULAM.682018, (ENQUIRY OFFICER APPOINTED AS PER ORDER DATED 11.5.2015)** - **5 ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL SUB DIVISION, CENTRAL, ERNAKULAM-682011, (ENQUIRY OFFICER APPOINTED AS PER ORDER DATED 9.12.2016).** [ WP(C) 7022/2017 ,WP(C).19428/2018 ] 2 - **6 REGIONAL AUDIT OFFICER** **O/O THE REGIONAL AUDIT OFFICE, KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL CIRCLE, ERNAKULAM.682018.** - **7 THE CHIEF VIGILANCE OFFICER KERALA STATE ELECTRICITY BOARD LTD, VYDYUDHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM.695004.** - **8 C. SURESH KUMAR** **AGE AND NAME OF HIS FATHER ARE NOT KNOWN TO THE PETITIONER, DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD LTD, ELECTRICAL CIRCLE, ERNAKULAM.682018.** ## **BY ADV. SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.04.2019, ALONG WITH WP(C).19428/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 [ WP(C) 7022/2017 ,WP(C).19428/2018 ] ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **WEDNESDAY, THE 03RD DAY OF APRIL 2019 / 13TH CHAITHRA, 1941** **WP(C).No. 19428 of 2018** ## **PETITIONER:** ## **SAINULANDHEEN A.S** **S/O.ABDUL SATHAR AHAMED, AGED 51 YEARS, SENIOR SUPERINTENDENT, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, TIRUR EAST, MALAPPURAM. (RESIDING PERMANENTLY AT HOUSE NO.23/703 B, NEAR SALAFI MASJID, MADHURA COMPANY ROAD, PALLURUTHY P.O., KOCHI-682006)** **BY ADVS. SMT.SHAMEENA SALAHUDHEEN SMT.S.SIMY** ## **RESPONDENTS:** |**1**|**KERALA STATE ELECTRICITY BOARD LTD.**| |---|---| ||**REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVANAM,**| ||**PATTOM, THIRUVANANTHAPURAM-695004.**| |**2**|**CHIEF ENGINEER HRM, KERALA STATE ELECTRICITY BOARD**| ||**LTD.,VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-**| ||**695004.**| |**3**|**DEPARTMENTAL PROMOTION COMMITTEE LOWER FOR**| ||**ADMINISTRATIVE AND FINANCIAL OFFICERS OF KSE BOARD**| ||**REPRESENTED BY ITS MEMBER CONVENER, CHIEF ENGINEER**| ||**(HRM), KERALA STATE ELECTRICITY BOARD LTD.,**| ||**VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-**| ||**695004.**| [ WP(C) 7022/2017 ,WP(C).19428/2018 ] 4 - **4 CHAIRMAN AND MANAGING DIRECTOR KERALA STATE ELECTRICITY BOARD LTD.** - **VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM695004.** - **5 SURESH KUMAR V.G. ASSISTANT ACCOUNTS OFFICER, KERALA STATE ELECTRICITY BOARD LTD., REGIONAL AUDIT OFFICE, TIRUR-676107.** - **6 JAISE ZACHARIA ASSISTANT ACCOUNTS OFFICER,KERALA STATE ELECTRICITY BOARD LTD.,REGIONAL AUDIT OFFICE, KANNUR-670701.** - **7 MANOJ KUMAR M.S.** - **ASSISTANT ACCOUNTS OFFICER,KERALA STATE ELECTRICITY BOARD LTD.,REGIONAL AUDIT OFFICE, KOTTARAKARA691532.** - **8 JOLLY MATHAI M.** - **ASSISTANT ACCOUNTS OFFICER,KERALA STATE ELECTRICITY BOARD LTD., O/O.THE CHIEF VIGILANCE OFFICER-I, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM695004.** **BY ADV. SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03.04.2019, ALONG WITH WP(C).7022/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 5 [ WP(C) 7022/2017 ,WP(C).19428/2018 ] ## **JUDGMENT** [ WP(C) 7022/2017 ,WP(C).19428/2018 ] The petitioner in both the writ petitions are one and the same. He is currently working as a Senior Superintendent of the Kerala State Electricity Board. He was proceeded under disciplinary action. The enquiry officer exonerated him. Thereafter, on same set of allegation, a second enquiry was initiated as per Ext.P7. These aspects are not in dispute before this Court in the writ petition. Original enquiry appears to have been concluded as early as on 25.10.2014. Ext.P7 proceedings dated 01.02.2016, the petitioner has been asked to answer the charges as referred in Ext.P7. Ext.P9 is the order of the Board directing a detailed re- enquiry, after affording natural justice to the delinquent officer. It is stated that this was to avoid financial loss to in KSEB. [ WP(C) 7022/2017 ,WP(C).19428/2018 ] 6 2. The petitioner challenges Ext.P7 and P9 in WP(C)No.7022/2017. In the meanwhile, the petitioner was denied the promotion to the category of the Assistant Accounts Officer from the category of Senior Superintendent. This was due to the pendency of the disciplinary action. Accordingly, the petitioner filed WP(C) No.19428/2018 challenging denial of promotion. 3. Heard the learned counsel for the petitioner, Smt. Shameena Salahudheen and Sri.M.K. Thankappan, the learned Standing Counsel for the Kerala State Electricity Board. 4. The learned counsel for the petitioner questioned propriety of initiating second enquiry without entering into dissatisfaction with the earlier enquiry and giving an opportunity to the petitioner against the proposed action. **==> picture [381 x 13] intentionally omitted <==** Kerala State Electricity Board submits that the second enquiry is almost completed and because of [ WP(C) 7022/2017 ,WP(C).19428/2018 ] **==> picture [7 x 8] intentionally omitted <==** the stay granted by this Court, they are not able to conclude the proceedings. It is submitted that the petitioner had caused heavy financial loss to the Board. 6. It is settled legal position that if an employer is not satisfied with the enquiry report, the employer can enter disagreement with the enquiry and show cause petitioner to answer such disagreement and proceed further. [See the judgments of the Apex Court in _**Punjab National Bank v. S.P. Goel [1998 KHC 561](SC), Yoginath D. Bagde v. State of Maharashtra [1999 KHC 796](SC)** and_ _**Malhotra S.P. v. Punjab National Bank and Others [2013 KHC 4524](SC)** and of this Court in_ _**Kesavan Namboodiri v. State of Kerala [1982 KLT 512], Baby v. State of Kerala [1999 KHC 156] and Thomas C.V. Vs. K.S.E.B and Others**_ ## _**[MANU/KE/0901/2007].]**_ In this case, however, without following any procedure and without discarding the earlier [ WP(C) 7022/2017 ,WP(C).19428/2018 ] 8 enquiry report, second enquiry was ordered on same set of allegations. This cause of action is legally unsustainable. The employer is free to proceed if it not satisfied with the enquiry report, by recording disagreement and thereafter, proceed with the disciplinary action. The employer cannot proceed with the second enquiry on same set of allegations unless such enquiry is vitiated for any known reasons under law. Therefore, in such circumstances, I am of the view that the impugned proceedings in WP(C) No.7022/2017 will have to be set aside, accordingly I do so. If there is no disciplinary action pending in the light of setting aside of the proceedings by this Court in WP(C)No.7022/2017,consequentially, the petitioner would be entitled for promotion in accordance with the seniority. If the promotion was due based on seniority, necessarily, the petitioner shall be promoted without any delay, at any rate, [ WP(C) 7022/2017 ,WP(C).19428/2018 ] **==> picture [7 x 8] intentionally omitted <==** within a period of one month from the date of receipt of a copy of this judgment. These writ petitions are disposed of as above. **Sd/-** ## **A.MUHAMED MUSTAQUE** **JUDGE** [ WP(C) 7022/2017 ,WP(C).19428/2018 ] 10 ## **APPENDIX OF WP(C) 7022/2017** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE MEMO OF CHARGES TOGETHER WITH STATEMENT OF ALLEGATION ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 5.11.2014. EXHIBIT P2 A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT ON 28.11.2014.** - **EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 13.1.2015 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P4 A TRUE COPY OF THE ORDER DATED 11.5.2015 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P5 A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ON 18.6.2015 WITHOUT EXHIBITS.** - **EXHIBIT P6 A TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P7 A TRUE COPY OF THE MEMO OF CHARGES TOGETHER WITH STATEMENT OF ALLEGATION ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P8 A TRUE COPY OF THE STATEMENT OF DEFENSE/EXPLANATION DATED 19.2.2016 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT WITHOUT EXHIBITS.** - **EXHIBIT P9 A TRUE COPY OF THE ORDER DATED 9.12.2016 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION DATED 2.2.2017 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P11 A TRUE COPY OF THE MEDICAL CERTIFICATE AND OTHER TREATMENT DETAILS PERTAMINING TO THE SON OF THE PETITIONER ABDUL SATHAR S.** - **EXHIBIT P12 A TRUE COPY OF THE ORDER DATED 6.1.2016** [ WP(C) 7022/2017 ,WP(C).19428/2018 ] 11 ## **ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P13** **EXHIBIT P14** **EXHIBIT P15** **EXHIBIT P16** **A TRUE COPY OF THE RELEVANT EXTRCT OF THE KSEB EMPLOYEES (CC & A) REGULATIONS, 1969.** **A TRUE COPY OF THE SELECT LIST OF SENIOR SUPERINTENDENTS PREPARED BY THE 2ND RESPONDENT** **A TRUE COPY OF PROMOTION ORDER DATED 20/11/2017 ISSUED BY THE 2ND RESPONDENT** **A TRUE COPY OF THE LIST OF CONSUMERS AND THEIR RESPECTIVE DETAILS OF BILLS WHICH WERE REVISED BY THE PETITIONER DURING HIS INCUMBENCY AT ELECTRICAL SECTION, PALLURUTHY.** [ WP(C) 7022/2017 ,WP(C).19428/2018 ] 12 ## **APPENDIX OF WP(C) 19428/2018** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS DATED 03-102015 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 A TRUE COPY OF ORDER DATED 20-11-2017 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE INTERIM ORDER IN WRIT PETITION (CIVIL)NO.7022 OF 2017.** **EXHIBIT P4 A TRUE COPY OF ORDER DATED 05-03-2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P5 A TRUE COPY OF THE PROCEEDINGS DATED 08-032018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P6 A TRUE COPY OF THE SUBMISSION MADE BY THE PETITIONER. EXHIBIT P7 A TRUE COPY OF THE APPRAISAL REPORT PERTAINING TO THE PETITIONER, TOGETHER WITH APPRECIATION LETTER DATED 30-01-2017 ISSUED IN FAVOUR OF THE PETITIONER, FORWARDED BY THE REPORTING OFFICER.** **EXHIBIT P8 A TRUE COPY OF JUDGMENT DATED 20-12-2015 IN WRIT PETITION (CIVIL) NO.35424 OF 2005. EXHIBIT P9 A TRUE COPY OF INTERIM ORDER DATED 05-092005 IN WRIT PETITION (CIVIL)NO.24963 OF 2005. EXHIBIT P10 A TRUE COPY OF THE JUDGMENT DATED 02-112015 IN WRIT APPEAL NO.2362 OF 2005.** - **RESPONDENTS' EXHIBITS: EXHIBIT R2A TRUE COPY OF THE B.O(FB) NO.395/2012(ESTT.II/CR-RULES/2006) DATED 18/02/2012** **EXHIBIT R2B TRUE COPY OF THE NOTE DATED 13/03/2017 OF CHIEF VIGILANCE OFFICER** SAS/03/04/2019 //TRUE COPY// P. A TO JUDGE