Sajith Kumar D.S. v. Kerala State Electricity Board Ltd. & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 22ND DAY OF JANUARY 2020 / 2ND MAGHA, 1941** ## **WP(C).No.36168 OF 2018(U)** ## **PETITIONER:** **SAJITH KUMAR D.S., AGED 42 YEARS S/O R.C DIVAKARAN NADAR, SUB-ENGINEER, KSEB, KOTTUKAL ELECTRICAL SECTION, NEYYATINKARA DIVISION, THIRUVANANTHAPURAM, RESIDING AT 'THEKKE BUNGLOW', KANNARAVILA, NELLIMOODU P.O, THIRUVANANTHAPURAM.** **BY ADVS.** **SRI.S.MUHAMMED HANEEFF SRI.M.H.ASIF ALI SRI.ROHIT NANDAKUMAR SMT.SHAIMA VAHAB** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD LTD. REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695004.** - **2 THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM , THIRUVANANTHAPURAM- 695004.** - **3 THE CHIEF ENGINEER (HUMAN RESOURCE MANAGEMENT), OFFICE OF THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695004.** - **4 THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL CIRCLE, VADAKARA- 673104.** WP(C).No.36168 OF 2018(U) 2 **5 THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL DIVISION, VADAKARA- 673104.** **BY ADV.** **R1-5 BY SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.36168 OF 2018(U) 3 ## **JUDGMENT** The petitioner who was working as a Sub Engineer is aggrieved by the orders Exts.P1 to P6 by which a punishment of barring of one increment with cumulative effect was awarded. 2. It is stated that while the petitioner was working as a Sub Engineer at Koyilandi South Section, a lineman who was working under him suffered an accident and passed away due to electrocution on 30.12.2011. Consequent to this petitioner was placed under suspension on 30.12.2011 and thereafter a memo of charge was issued to him on 16.02.2012, alleging that he committed serious dereliction of duty by not ensuring that HT side of the circuit was earthed properly before starting work and that he committed supervisory lapses. The reply submitted by the petitioner was not satisfactory and thereupon an enquiry officer was appointed. It is stated that an Assistant Executive Engineer was appointed as enquiry officer and he submitted Ext.P1 enquiry report on 24.11.2014. Along with the petitioner an Overseer was also subjected to disciplinary proceedings. Petitioner was found guilty of the charges. The enquiry officer found that the reason for electrocution could have been improper earthing, though the petitioner deposed that earthing was WP(C).No.36168 OF 2018(U) 4 proper. 3. On receipt of enquiry report the Executive Engineer, Electrical Division Vadakara who is the disciplinary authority issued a show cause notice Ext.P2 on 01.04.2015. In this show cause notice it was stated that the disciplinary authority was convinced that the charges against the petitioner were proved and therefore, petitioner was found liable to be punished under K.S.E.B Employees (CC&A) Regulations, 1969. It was found that K.S.E.B lost the life of an employee on account of the lapses on the part of the petitioner by improperly earthing the line. It was further found that the lapse on the part of the petitioner amounts to serious indiscipline and dereliction of duty and therefore, it was proposed to award a punishment of barring one increment with cumulative effect and to regularise the period of his suspension as leave without allowance which would not be counted for any service benefits. The petitioner was directed to show cause if any, against the confirmation of the proposal within a period of 15 days. Thereafter the proposal in Ext.P2 was confirmed by Ext.P3 order dated 20.07.2015 of the 5[th] respondent. Aggrieved by Ext.P3 petitioner submitted an appeal before the Deputy Chief Engineer and Deputy Chief Engineer reduced the punishment to that of barring of his next WP(C).No.36168 OF 2018(U) 5 annual increment without cumulative effect for a period of three years. Petitioner submitted a Revision Petition before the Chief Engineer (H.R.M) and thereupon the 3[rd] respondent, after issuing a show cause notice to petitioner, passed Ext.P5 order restoring the punishment which was awarded by the disciplinary authority -that is- barring of increment for one year with cumulative effect. It is stated that on receipt of the Review Petition from the petitioner the Chief Engineer examined the connected documents and found that the punishment imposed by the Deputy Chief Engineer was disproportionate to the gravity of the offence and decided to review the case under Clause 32(2) (1) of CCA Regulations, 1969. A show cause notice dated 27.11.2017 was issued to the petitioner proposing the punishment of barring one increment with cumulative effect. Petitioner thereupon submitted his reply on 13.12.2017 denying the allegations against him stating that he had taken all possible safety measures before the commencement of the work. However, the Chief Engineer (H.R.M.) found that there were serious supervisory lapses and dereliction of duty on the part of the petitioner and that punishment imposed by the Deputy Chief Engineer was inadequate. Accordingly, it was decided to confirm punishment proposed in the show cause notice and ordered WP(C).No.36168 OF 2018(U) 6 barring of one increment with cumulative effect for a period of one year and to regularise the period of suspension as eligible leave. Aggrieved by the same petitioner submitted a Review petition before the Chairman and Managing Director which was disposed of as per Ext.P6 order confirming order passed by the Chief Engineer. It is stated that in the Review Petition petitioner requested for a full-fledged fresh enquiry. However, the Review Petition was rejected as per Ext.P6 order. The petitioner challenges the enquiry report and the orders of punishment alleging violation of procedural formalities under the K.S.E.B (Classification Control and Appeal) Regulations, 1969 before entering into the findings against him. It is argued that once disciplinary authority decided to conduct an enquiry, that enquiry should have been conducted in accordance with the procedure prescribed in part V of the Kerala State Electricity Board (Classification, Control and Appeal) Regulations, 1969. 4. The learned counsel for the petitioner points out that the petitioner was not given a copy of the enquiry report and he was not informed of the findings arrived at by the disciplinary authority at least along with the show cause notice or even the final order. 5. Learned standing counsel points out that the petitioner is WP(C).No.36168 OF 2018(U) 7 awarded only a minimum punishment after issuing a memo of charges and after conducting an enquiry in accordance with law. According to him the punishment awarded is minor, compared to the gravity of the dereliction of duty committed by the petitioner . It is stated that a detailed full-fledged formal departmental enquiry was conducted by the Board with the Engineers of KSEBL and that report was based on oral evidence but also based on inspection of the sight on 06.10.2013. According to the respondents the non feeding end of the pole No.TH 83 was not properly earthed before commencement of work. This lead to the fatal accident. Petitioner who was a Supervisor Officer should have ensured that there would not be any flow of current to the worksite and he should have supervised the work taking adequate safety measures. Counter affidavit supports punishment awarded to the petitioner. 6. It was pointed out that barring of one increment is a minor penalty under the Regulations. However, in this case the 5[th] respondent resorted to a departmental enquiry appointing an enquiry officer. Departmental enquiry is to be conducted before imposing major penalties and the procedure for imposing major penalty is provided in Regulation 16. Under Note 2 Clause 16(7) it is provided as follows: WP(C).No.36168 OF 2018(U) 8 _“if the Inquiry Authority proposes to rely on the oral evidence of any witness, the authority should examine such witness and give an opportunity to the accused Board employee to cross-examine the witness. Any previous written record of a statement made by a witness shall not be used or relied on and shall not form part of the record of the inquiry except where the Board employee agrees in writing to treat it as such.”_ Sub- clause 7 provides for the facility to be provided to the Board employee to cross-examine the witnesses examined in support of the charges. Sub- clause 11 provides that on receipt of the enquiry report, the disciplinary authority shall consider the report of the enquiry and shall record its findings on each charge. Sub clause 13 provides that when an enquiry is conducted involving recording of evidence, procedure in respect of such evidence as laid down in the Regulations relating to imposition of major penalties shall be observed. 7. In the present case Ext.P1 enquiry report shows that the enquiry officer has miserably failed to observe any of the procedural formalities. It is seen that certain statements were recorded. There is nothing to show that the delinquent employee was asked whether he wants to cross examine any of the witnesses. In fact even the witnesses were not examined; only the statements were taken. Apparently the procedure was observed in violation. The enquiry was WP(C).No.36168 OF 2018(U) 9 thus conducted in violation of Sub Regulation 13 of Regulation 16. It would appear that the petitioner has also not objected to this procedure during the course of enquiry or even in his appeal or revision. However fact remains that none of the witnesses was examined in accordance with the provisions contained in K.S.E.B (Classification Control and Appeal) Regulations, 1969. 8. Though the penalty imposed is barring of increment which would have been inflicted without conducting an enquiry, in this case when the respondents resorted to conduct an enquiry it was necessary to follow the Note under Regulations 16(7) and the penalty could have been imposed only in accordance with Clause 17(3) of the Regulations. Similarly, the disciplinary authority did not enter into any finding to the charges alleged against the petitioner before proposing a punishment. 9. Having heard the contentions raised on either side it is seen that consequent to the death of lineman Sri. Suraj P.K. on 30.12.2011 an enquiry was ordered on 24.04.2012. An enquiry report was submitted thereafter only on 29.11.2014 that too without conducting any examination of the witnesses properly. It is the fundamental requirement in conducting an enquiry that the prosecution witnesses should be examined first and it shall be followed by cross-examination WP(C).No.36168 OF 2018(U) 10 by the delinquent employee so as to ensure the principles of natural justice to either side. A reading of Ext.P1 enquiry report shows that such fundamental requirements are not at all observed while conducting the enquiry. On account of the procedural lapses committed by the enquiry officer, which the respondents Nos.2 to 5 never choose to take up, the delinquent employee happens to escape from the clutches of the disciplinary proceedings. 10. Punishment is seen awarded to the petitioner without observing procedural formalities and in the absence of legal evidence on record. Statement taken by the enquiry officer cannot be treated as legal evidence except when the said statement is made known to the delinquent employee and he is given an opportunity to cross examine the person who gave the statement. As contended by the learned counsel for the petitioner, the judgment dated 16.02.16 in W.P.(C) No.18249 of 2005 rendered by this Court squarely applies to the factual circumstances arising in this case. Relying on the judgment in **Nirmala J. Jhala v. State of Gujrat and Another** [2013(4) SCC 301] this Court held that the evidence adduced in a preliminary enquiry cannot be used in the regular enquiry without examining the witnesses. In the present case no witness is put to examination. My judgments in WP(C).No.36168 OF 2018(U) 11 **Venkatapathi L v. Assistant commandant, CISF Unit And Others** [2019(4) KHC 52], **Abdul Azeez T.A. v. Union of India And Others** [2018(4) KLJ 799], etc would also fortify the position. In the above circumstances, when even the enquiry is not seen conducted properly and there is no evidence on record, the orders of punishment Ext P3 to P6 shall stand set aside. In the result, the petitioner would be entitled to the benefit of increments withheld from him. Even though learned counsel for the petitioner sought for a direction to respondents to regularise the period of suspension as duty, I find that the suspension was ordered on sufficient reasons and it cannot be said that it was wholly unjustified. Therefore, the said prayer is declined. The Writ Petition is allowed to the above extent. **Sd/P.V.ASHA JUDGE** ## **SCS** WP(C).No.36168 OF 2018(U) 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE ENQUIRY REPORT DATED 29.11.2014.** **EXHIBIT P2 A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 01.04.2015 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P3 A TRUE COPY OF THE ORDER BEARING NO.G.B.1/DISCIPLINARY ACTION/SUB ENGINEER/KOYILANDY SOUTH/15-16/48 DATED 20.07.2015 ISSUED BY THE 5TH RESPONDENT.** **EXHIBIT P4 A TRUE COPY OF THE ORDER BEARING NO.GB1/DA/FA/16-17/24 DATED 16.07.2016 ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P5 A TRUE COPY OF THE ORDER BEARING NO.EBVS 5/10/2016/221 DATED 23.03.2018 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P6 A TRUE COPY OF THE ORDER BEARING NO.VIG/B1/2095/2012/2888 DATED 04.09.2018 ISSUED BY THE 2ND RESPONDENT.** **//TRUE COPY// PA TO JUDGE**