SREEKUMAR v. KERALA STATE ELECTRICITY BOARD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **THURSDAY ,THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940** ## **WP(C).No. 30369 of 2016** ## **PETITIONER/S:** **SREEKUMAR AGED 48 YEARS S/O.RAVEENDRAN, SUB ENGINEER TRAINEE, ELECTRICAL SECTION, CHULLIMANOOR, NEDUMANGAD ELECTRICAL DIVISION, THIRUVANANTHAPURAM.** **BY ADV. SRI.R.V.SREEJITH** ## **RESPONDENT/S:** - **1 KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM PALACE.P.O., THIRUVANANTHAPURAM-695004.** - **2 THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM PALACE.P.O., THIRUVANANTHAPURAM-695004.** - **3 CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM PALACE.P.O., THIRUVANANTHAPURAM-695004.** - **4 DEPUTY CHIEF ENGINEER TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM PALACE.P.O., THIRUVANANTHAPURAM-695004. BY ADV. SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY BOARD LIMITED** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 30369 of 2016 2** ## **JUDGMENT** The petitioner has approached this Court seeking the following prayers:- _a) Call for the records leading upto exhibits P11 and to quash Exhibit P7, P9 and P11 by a writ of certiorari or any other appropriate writ order or direction._ _b) issue a writ order or direction directing the respondent to treat regularize the period of suspension of petitioner._ _c) to issue a writ of mandamus or any other appropriate writ order or direction staying all further proceedings pursuant to P7, P9 and P11 orders._ 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Kerala State Electricity Board. 3. The learned counsel for the petitioner submits that the petitioner had jointed service of the 1[st] respondent as worker in 1995. He was later promoted as lineman, overseer and is presently working as Sub Engineer (Trainee). It is stated that in the year 2011, while the petitioner was working as overseer in Malappuram, disciplinary proceedings were initiated against him on the ground that he had misbehaved with an operator on contract by name Ambiliy K. and had also left the sub station without handing over the charge to anybody else. The petitioner was suspended from service by Ext.P2 order dated 26.9.2011. He was issued with ## **WP(C).No. 30369 of 2016 3** memo of charges dated 01.10.2011 and an enquiry had been conducted. A lady officer conducted a detailed enquiry and filed Ext.P3 report finding that there was no evidence to prove the guilt of the petitioner. The petitioner had been reinstated in service. 4. Though Ext.P3 enquiry report was duly forwarded, the 4[th] respondent had issued Ext.P5 show cause notice proposing to disagree with the findings in the enquiry. The petitioner had submitted Ext.P6 reply stating that there was no evidence in the enquiry as against him and that there is no merit in the contention that the circumstantial evidence points to the guilt of the petitioner. It is contended that there is absolutely no scrap of evidence as against the petitioner except hearsay evidence which could not have been relied upon by the disciplinary authority. However, Ext.P7 order dated 19.03.2015 was passed imposing punishment of bar of two increments with cumulative effect on the petitioner. Though Ext.P8 appeal was preferred by the petitioner before the 3[rd] respondent, the same was also partly allowed by reducing the punishment to barring of one increment with cumulative effect by Ext.P9. Further appeal preferred by the petitioner before the 2[nd] respondent also came to be dismissed by Ext.P11. 5. The learned counsel for the petitioner would submit that ## **WP(C).No. 30369 of 2016 4** the petitioner's specific contention that the enquiry officer, on examination of entire evidence found that there was absolutely no material to hold that the petitioner had committed the offence as charged against him was not properly considered by any of the authorities in the impugned orders. It is stated that the fragments of hearsay evidence are relied on by the respondents and it is held that there is circumstance to suspect that the petitioner “may have committed the offence” as charged against him. It is stated that the contentions raised by the petitioner in the reply to the first show cause notice by Ext.P6 and in the appeal preferred by him have not been considered at all and the respondents have mechanically held that the petitioner is guilty of the offence without considering the contentions advanced. The learned counsel for the petitioner would also contend that the imposition of the penalty of bar of one increment with cumulative effect is a major penalty by its nature and that it ought not to have been imposed in the casual manner as has been done in the impugned orders. It is contended that the disciplinary authority and the appellate authorities have not cared to consider the evidence which was available before the enquiry officer and the specific findings in the enquiry report which exonerated the petitioner. It is contended that in the absence of any written complaint by the officer against ## **WP(C).No. 30369 of 2016 5** whom the petitioner is alleged to have misbehaved and in the absence of any scrap of information which implicated the petitioner, the imposition of the penalty was completely misconceived. 6. A detailed counter affidavit has been placed on record by the Board. It is contended that the petitioner had been implicated of the offence of misbehaving with a lady officer and leaving the sub station without permission. It is stated that the Manual of Disciplinary Proceedings says that “a fact is said to be not proved when it is neither proved nor disproved.” It is further contended by the learned counsel for the Board that the penalty of bar of one increment with cumulative effect which now stands imposed against the petitioner is a minor penalty going by the provisions of KSE Board Standing Order 1996/ CC & A Regulations 1969 and that, as such, the procedure followed by the board is well in order. 7. Relying on a decision of the Apex Court in _**Lalit Popli v. Canara Bank and Others [(2003) 3 SCC 583],**_ the learned Standing Counsel would also contend that the strict standards of proof required in a criminal trial are not to be expected in a disciplinary proceedings and penalty can be imposed by the appropriate authority on a preponderance of probabilities and on consideration of materials on record as are necessary to arrive at a ## **WP(C).No. 30369 of 2016 6** conclusion whether or not the delinquent has committed the offence. 8. I have considered the contentions advanced. Ext.P3 is the enquiry report of the domestic enquiry. Ext.P3 specifically states that Smt.K. Ambily who alleged that the petitioner had misbehaved her, had not submitted any written complaint. It is stated that inspite of repeated requests, the said officer had not turned up to give evidence in the domestic enquiry. It seems that the security guard who was available in the sub station had also expressed his inability to attend the domestic enquiry proceedings. The prosecution had offered three witnesses who stated that Smt.Ambily had told them that the petitioner had misbehaved with her. After considering their evidence, the enquiry officer came to the conclusion that there is no material to implicate the petitioner. 9. By Ext.P4, the petitioner was put on notice that the disciplinary authority, after examining the enquiry report and the related records, was of the opinion that even though there is no eyewitness and that the aggrieved employee had not turned up to give evidence, '' it is evident from the circumstantial evidences that the delinquent had misbehaved towards the lady operator during the night shift” . It is in the above circumstances, that the decision has been taken to inflict the punishment on the petitioner. The ## **WP(C).No. 30369 of 2016 7** petitioner had submitted a reply. However, by Ext.P5 proceedings the disciplinary authority states that the reply furnished by the petitioner is not “worthy for consideration”. No reference is made to the evidence adduced in the enquiry. The petitioner thereafter submitted Ext.P6 appeal. It is contended in Ext.P6 that there was absolutely no material available before any of the authorities to implicate the petitioner. It is stated that nobody had given evidence against the petitioner and that all that is before the enquiry officer was hearsay evidence offered by two employees, who had allegedly come to the scene after the incident. However, Ext.P9 order also states that circumstantial evidence revealed that the petitioner had misbehaved the lady operator. However, the punishment awarded was reduced to barring of one increment. The petitioner's further appeal was also rejected by Ext.P11. Ext.P11 order also does not refer to any specific evidence which was available in the enquiry proceedings as against the petitioner. 10. After having considered the materials on record, I am of the opinion that while it is not for this Court to re-appreciate the evidence adduced in a domestic enquiry, it is clear that any finding of guilt in a domestic enquiry is to be entered into on the basis of the evidence adduced in the enquiry. The petitioner has a specific case that there is absolutely no evidence as against him. Ext.P4 ## **WP(C).No. 30369 of 2016 8** also refers only to some hearsay evidence which appears to have been adduced by PW1 and PW2. The show cause notice issued to the petitioner or the consequent orders passed do not also refer to any circumstantial evidence which was adduced in the enquiry proceedings as against the petitioner. The specific case of the petitioner that there is no such evidence available in the file has also not been refuted by the findings in the impugned orders, since there is no mention what material has been relied on by the authorities to conclude that the petitioner was guilty of the charges framed against him. I am of the opinion that the findings to the effect that the petitioner was guilty of the offences charged by virtue of circumstantial evidence available against him is liable to be reconsidered. In view of the fact that the matter has been pending before this Court for considerably long time, I am of the opinion that interest of justice will be served by directing a reconsideration of the matter by the 1[st] respondent after considering the entire records of the case including the evidence adduced before the enquiry officer. To facilitate such course of action, Ext.P11 order is set aside. The 2[nd] respondent shall take up Ext.P10 appeal preferred by the petitioner and pass a speaking order in the matter after hearing the petitioner also. The specific case of the petitioner **WP(C).No. 30369 of 2016 9** that there was no evidence available as against him will be considered by the 2[nd] respondent taking note of the evidence adduced before the enquiry officer and the findings in Ext.P4. Orders shall be passed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. **Sd/-** ## **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No. 30369 of 2016 10** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPORT NO.DB-3/TSDPH/LA COMPLEX/11-12/119 DATED 26.9.2011.** - **EXHIBIT P2 TRUE COPY OF THE REPORT NO.EB3/TCT/SUSPENSION/2011 DATED 26.9.2011.** - **EXHIBIT P3 TRUE COPY OF THE MEMO OF CHARGES NO.EB3/TCT/DISC. ACT/2011/04 DATED 1.10.2011.** - **EXHIBIT P4 TRUE COPY OF REPORT DATED 28.6.2014 SUBMITTED BY THE ENQUIRY OFFICER OBTAINED BY PETITIONER UNDER RIGHT TO INFORMATION ACT.** - **EXHIBIT P5 TRUE COPY OF SHOW CAUSE NOTICE NO.EB3/4085/2014/TCT/DIS.A3/1743 ISSUED TO PETITIONER BY 4TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE REPLY TO EXHIBIT P5 NOTICE SUBMITTED BY PETITIONER DATED 10.10.2014.** - **EXHIBIT P7 TRUE COPY OF ORDER NO.EB3/4085/2014/TCT/DIS. ACT PASSED BY THE 4TH RESPONDENT DATED 19.3.2015.** - **EXHIBIT P8 TRUE COPY OF APPEAL DATED 29.4.2015 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF ORDER NO.EBVS.6/18/2015 PASSED BY THE 3RD RESPONDENT DATED 3.3.2016.** - **EXHIBIT P10 TRUE COPY OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 16.7.2016.** - **EXHIBIT P11 TRUE COPY OF ORDER NO.VIG/BIV/6081/2011/1651 PASSED BY THE 2ND RESPONDENT DATED 4.7.2016.** - **RESPONDENTS EXHIBITS NIL** ## **// TRUE COPY //** **P.A TO JUDGE**