Sibi Thomas v. Kerala State Electricity Board Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** ## **THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942** ## **WP(C).No.25635 OF 2015(D)** ## **PETITIONER :** **SIBI THOMAS, AGED 46 YEARS, S/O. THOMAS T THAYYIL, NOW RESIDING AT 4G, HOUSE NO. 27, LUIZ GARDEN, SOUTH KALAMASSERY, ERNAKULAM (ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION, MALIPPURAM, VYPEEN.** **BY ADVS. SMT.SINDHU SANTHALINGAM SRI.A.D.SHAJAN** ## **RESPONDENTS :** |**1**|**THE KERALA STATE ELECTRICITY BOARD LTD.,**| |---|---| ||**THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING**| ||**DIRECTOR – 695 001.**| |**2**|**CHAIRMAN AND MANAGING DIRECTOR,**| ||**KERALA STATE ELECTRICITY BOARD LTD,**| ||**THIRUVANANTHAPURAM – 695 001.**| |**3**|**CHIEF ENGINEER (DISTRIBUTION CENTRAL),**| ||**KERALA STATE ELECTRICITY BOARD,**| ||**ERNAKULAM – 695 001.**| |**4**|**DEPUTY CHIEF ENGINEER**| ||**ELECTRICAL CIRCLE, KERALA STATE ELECTRICITY BOARD,**| ||**THODUPUZHA – 685 564.**| |**5**|**ENQUIRY OFFICER AND EXECUTIVE ENGINEER**| ||**ELECTRICAL DIVISION, PEERUMED – 685 531.**| ||**R1 BY SRI.K.S.ANIL, SC, KSEB**| ||**BY ANCHALA C., SC FOR ADV.SMT.ANEETHA A.G., SC,**| ||**KERALA STATE ELECTRICITY BOARD LIMITED**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-11-2020, THE COURT ON 19-11-2020 DELIVERED THE FOLLOWING:** WP(C).No.25635 of 2015 2 ## **JUDGMENT** Dated this the 19[th] day of November, 2020 A departmental proceeding was initiated against the petitioner alleging six separate charges. Two of the charges related to delay in forwarding of bills, while two other charges related to acts of dereliction of duty and two others related to demand and acceptance of bribe. The enquiry officer found the petitioner guilty of charges of delay in forwarding bills and dereliction of duty. Charges for alleged demand and acceptance of bribe was found in favour of the petitioner and he was exonerated from those charges. Though a punishment of barring of two increments was proposed, pursuant to the reply notice submitted by the petitioner, by Ext.P8, a lenient view was taken and barring of only one increment with cumulative effect was imposed upon the petitioner by the 3[rd] respondent. In appeal by Ext.P10 order, the 2[nd] respondent rejected petitioner's appeal. The petitioner challenges the said orders imposing punishment of barring one increment with cumulative effect against him. 2. Petitioner is an Assistant Executive Engineer with KSEB. While so, according to him, on the basis of anonymous complaints, proceedings were initiated against him after placing him WP(C).No.25635 of 2015 3 under suspension. Even though a disciplinary proceeding was conducted, by Ext.P6 report, the enquiry officer came to a wrong conclusion that petitioner was guilty of four out of the six charges levelled against him. Petitioner contends that the findings entered into in Ext.P6, which are prejudicial to him are totally without any basis or evidence. Petitioner thus challenges Ext.P6 enquiry report along with the orders imposing punishment upon him which are produced as Ext.P8 and Ext.P10. 3. A counter affidavit has been filed by the respondents stating that the petitioner was reported to have committed grave irregularities and misconduct and the bills of the specific works which were delayed was specified in the memo of charges and enquiry was conducted only after his explanations were found to be unsatisfactory. It was also stated that the delay in forwarding bills could not have been caused by a responsible officer and the same were proved in the enquiry proceedings. In fact, since the allegation of demand and acceptance of bribe had not been proved and the enquiry officer himself had found the petitioner not guilty of the said two charges it was pleaded that, that itself shows fairness in the enquiry conducted. Referring to the minimal punishment imposed respondents pleaded that no serious prejudice is caused to the WP(C).No.25635 of 2015 4 petitioner. 4. In the reply affidavit, petitioner stated that he alone was targeted for punishment while others against whom evidence was available for the very same allegations were never proceeded with, which itself, according to the petitioner, shows the approach, attitude and conduct of respondents 2 and 3 as irregular. 5. I have heard Adv.Sindhu Santhalingam, who forcefully and with great persuasive skill argued that, there was no evidence of any nature whatsoever, to come to the conclusion that petitioner had committed misconduct. According to Adv.Sindhu, the jurisdiction under Article 226 of the Constitution of India though limited, could be exercised in the instant case since there was absolutely no evidence to show any type of delay or dereliction of duty on the part of the petitioner. She further contended that even though, the punishment imposed was not disproportionate, still, in a case where there was no evidence of any misconduct, the punishment imposed in the present case could still be termed as disproportionate. 6. Adv.Aneetha, the learned Standing Counsel, on the other hand submits that this is not a case where jurisdiction under Article 226 of the Constitution of India could be invoked since the zone of interference lies in a very narrow compass. According to her, WP(C).No.25635 of 2015 5 the degree of proof required in departmental proceedings is not as high as that in a criminal proceeding and insistence on proof beyond reasonable doubt is not required in a departmental enquiry. She relied upon the decision in _**Secretary, Managing Committee BSM (PG) College, Roorkee v. Samrat Sharma and Others [(2019)**_ _**16 SCC 56]**_ and argued that sufficiency of evidence for proof of charges is not within the domain of judicial review and that courts cannot re-appreciate the evidence. 7. I have considered the arguments raised at the bar. It is true that the petitioner was proceeded against on the basis of six charges and the allegations of demand and acceptance of bribe was not proved. However, the enquiry officer in his report Ext.P6 found that charge Nos.1 and 3, which related to delay in forwarding of bills stood proved. Adv.Sindhu Santhalingam repeatedly drew my attention to the finding in Ext.P6 that 'the exact date of submission of the bills to the Sub Division Office cannot be extracted from the available documents' and contended that the said finding relating to charge No.1 shows that there was no evidence to prove the delay in submission of bills. Even though the aforesaid observation is made in Ext.P6, this Court finds that one solitary sentence cannot be culled out from the report to arrive at a finding that there was no evidence. WP(C).No.25635 of 2015 6 In charge No.1 as well as in charge No.3, specific instances of delayed submission of bills have been mentioned and the delay in such submission have also been narrated. In fact, instances have been mentioned where the bills had to be recovered by the Deputy Chief Engineer from the office causing delays of three months and upwards for re-submitting the bills. It has been found in Ext.P8 also that the petitioner had kept the bills with him for more than three months. Even in relation to Point No. 3, the enquiry officer has found that there was delay in resubmitting the bills. Merely because the enquiry officer found responsibility upon the delay in another officer also, does not mean there was total absence of evidence against petitioner. Non-initiation of proceedings mentioned in Ext.P6 against the other officer is not a factor that petitioner can rely upon to claim exoneration. That is a matter for the department to decide separately. Thus relating to the charge of delay in submitting bills, it cannot be said that there was no evidence. 8. On the charge of dereliction of duty, the petitioner contends that since the duties have not been specified, he cannot be fastened with the charge of dereliction of duty. According to the learned counsel, when the duties are not clear, casting of burden on the officer is not proper and without identifying what the duties are, WP(C).No.25635 of 2015 7 the petitioner cannot be found to have committed any misconduct. The learned counsel also cited the decision reported in _**A.L.Kalra v.**_ _**Project and Equipment Corporation of India Ltd. [(1984) 3 SCC 316]**_ and an unreported decision in W.A.No.1315/2011, wherein a Division Bench of this Court had held that _“unless one knows what exactly were the duties and responsibilities assigned to the respondent herein, certainly cannot allege that he violated the duties and responsibilities assigned to him”._ An adverse inference was drawn in the said case due to the absence of the material indicating duties and responsibilities. 9. Adherence to all legal directions of the superiors is unquestionably an inherent duty of every subordinate officer. At no point of time during the enquiry, had the petitioner raised a contention that it was not his duty to forward the bills or to abide by the lawful directions of his superiors. In such circumstances, the contention that there was no such specific duty assigned to him to obey lawful directions of the superiors or to process the bill are both, not only an afterthought, but also duties inherently embedded in the position which the petitioner holds. 10. The jurisdiction under Article 226 of the Constitution of India as declared in several decisions of this Court as well as that WP(C).No.25635 of 2015 8 of the Supreme Court including **Samrat'** s case (supra) is that it is not the decision which is the subject matter of judicial review, but it is the decision making process. Sufficiency of evidence for proof of the charges against the delinquent officer is completely within the domain of the administrative authority. Courts cannot re-appreciate evidence to come to a different conclusion. Interference by the courts can only be in cases where there is no evidence and when there is some evidence, the courts must keep its hands off, unless the punishment imposed shocks the conscience of the court. In the decision reported in _**State of Bihar and Others v. Phulpari Kumari [(2020) 2 SCC 130**_ , it has been held as follows :- _6.1 :- It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of “no evidence”. Sufficiency of evidence is not within the realm of juridical review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge._ _6.2 :- The High Court ought not to have interfered with the order of dismissal of the respondent by re-examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the inquiry officer._ WP(C).No.25635 of 2015 9 11. Even in the decision relied upon by the learned counsel for the petitioner in _**Narinder Mohan Arya v. United India Insurance Co.Ltd. [(2006) 4 SCC 713]**_ it is _stated that “interference on the findings of a domestic enquiry by a writ court is limited and only in certain circumstances”._ Thus the scope of interference in a departmental proceeding is very limited. There is some evidence atleast against the petitioner. It is not a case of no evidence. The sufficiency of the evidence is not a matter for judicial review. 12. It is also relevant to note that the punishment imposed is also only one of barring one increment. Punishment imposed is a minor punishment. The punishment imposed is also a factor that has to be borne in mind by this Court while deciding whether an interference is called for. In view of the above, I do not find any reason to interfere with Ext.P6, P8 and P10. Hence, this writ petition is dismissed. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM WP(C).No.25635 of 2015 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE SUSPENSION ORDER ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT DT. 25.11.2011.** - **EXHIBIT P2 TRUE PHOTOCOPY OF THE MEMO OF CHARGES AND STAEMENT OF ALLEGATIONS ISSUED FROM THE OFFICE OF THE 3RD RESPONDENT TO THE PETITIONER DT. 24.12.2011.** - **EXHIBIT P3 TRUE PHOTOCOPY OF THE EXPLANATION GIVEN BY THE PETITIONER DT. 28.12.2011 TO EXT. P2.** - **EXHIBIT P4 TRUE PHOTOCOPY OF THE DETAILED ARGUMENT NOTE PREFERRED BY THE PETITIONER BEFORE THE 5TH RESPONDENT, DT. 20.12.2012.** - **EXHIBIT P5 TRUE PHOTOCOY OF THE SHOWCAUSE NOTICE ISSUED TO THE PETITIONER FROM THE OFICE OF THE 3RD RESPONDENT DT. 09.10.2013.** - **EXHIBIT P6 TRUE PHOTOCOPY OF THE ENQUIRY REPORT DT. 08.4.2013.** - **EXHIBIT P7 TRUE PHOTOCOPY OF THE EXPLANATION PREFERRED BY THE PETITIONER DT. 22.11.2013 TO THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE PHOTOCOPY OF THE ORDER NO. CE(DC)/GBI/DISC/2014-15/196 DT. 30.4.2014 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P9 TRUE PHOTOCOPY OF THE APPEAL PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT. 08.08.2014.** **EXHIBIT P10 TRUE PHOTOCOPY OF THE IMPUGNED ORDER ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT DT. 02.12.2014.**