T.G. David v Kerala State Electricity Board & The Chairman, Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 18TH DAY OF FEBRUARY 2021 / 29TH MAGHA,1942** ## **WP(C).No.18434 OF 2020(D)** ## **PETITIONER:** **T.G.DAVID** **AGED 75 YEARS** **EXECUTIVE ENGINEER (RETIRED) ELECTRICAL CIRCLE , KASARGODE, THONDANVALIL HOUSE, NEAR NSS HIGH SCHOOL, KALPETTA 673 121, WAYANAD DISTRICT.** **BY ADVS.** **SRI.GEORGE POONTHOTTAM (SR.) SRI.A.L.NAVANEETH KRISHNAN SMT.NISHA GEORGE** ## **RESPONDENTS:** - **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 001.** - **2 THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 001.** **R1-2 BY SRI. ASOK M.CHERIYAN, SC, KSEB** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.18434 OF 2020(D) 2** ## **JUDGMENT** While the petitioner was working as an Executive Engineer in the services of the Kerala State Electricity Board, he was proceeded against with respect to an incident that happened in the year 1993. The records show that the enquiry report against him was settled by the competent Enquiry Authority on 08.04.1997, finding him to be guilty of certain charges; but that no action was taken thereon until 31.08.2000, when the petitioner retired. 2. Pertinently, subsequent to the petitioner's retirement on 31.08.2000, Ext.P8 order dated 16.07.2003 was issued finding that he is guilty of all charges and thus imposing a punishment of reduction of pension by 20%, with effect from August 2003. The petitioner challenged this order before this Court, by filing W.P.(C).No.27341/2003, which culminated in Ext.P9 judgment dated 27.01.2016, finding that it is improper, going by the provisions of Rule 59(b) of Part III Kerala Service Rules (KSR) and thus setting it aside. This judgment was confirmed by a learned Division Bench of this ## **WP(C).No.18434 OF 2020(D) 3** Court, through Ext.P11 judgment, thereafter. 3. The petitioner contends that, in view of the afore factual situation, the period when he had been placed under suspension between 01.11.1995 and 18.08.1996, was liable to be treated as duty under the provisions of Rule 56 (B) of Part III of the KSR, but that when he made a request for the same, it has been rejected through Ext.P13 order of the Board dated 22.06.2000, treating the said period only as “eligible leave” and not as duty. The petitioner, therefore, impugn Ext.P13, asserting that this has been issued contrary to the provisions of law and in particular, Rule 56 B of Part I KSR. 4. I have heard Sri.George Poonthottam, learned Senior Counsel, instructed by Sri.A.L.Navaneeth Krishanan, learned counsel appearing on behalf of the petitioner and Sri. Asok M. Cherian, learned Standing Counsel appearing for the Kerala State Electricity Board. 5. The provisions of Rule 56B of Part II of the KSR is unmistakable that when an officer, who has been suspended, is reinstated or would have been so reinstated but for his retirement and superannuation, the competent Authority shall ## **WP(C).No.18434 OF 2020(D) 4** pass a specific order regarding the pay and allowances during the period of his suspension and whether or not the said period shall be treated as one spent on duty. Thereafter, sub-rule (3) of Rule 56B makes it mandatory for the competent Authority to order the payment of full pay and allowances to the employee, if, to his opinion, the suspension was wholly unjustified. 6. Therefore, under the scheme of Rule 56B of Part I of the KSR, in cases where the suspension of an employee was found completely irregular and totally unjustified, then he becomes entitled to his full pay and allowances; in other words, he is entitled to have the said period treated as duty. 7. The question in this case is whether the petitioner's suspension can be found to be wholly unjustified, thus warranting him full pay and pension for the said period; or whether the competent Authority was justified in reckoning the said period to be only “eligible leave”, as has been done through Ext.P13. 8. For me to obtain an answer to the afore question, I will have to go through the facts that are relevant to this ## **WP(C).No.18434 OF 2020(D) 5** case. 9. It is undisputed that the incident, which lead to the disciplinary action against the petitioner, happened in the year 1993 and that he was placed under suspension on 01.11.1995, to be reinstated only on 18.08.1996. Subsequently, the disciplinary enquiry proceedings against him culminated in an enquiry report dated 08.04.1997; but pertinently, no action was taken on it for the next three years and four months, until the petitioner retired, on attaining the age of superannuation on 31.08.2000. 10. The KSEB, however, still did not complete the proceedings against the petitioner and finally, on 16.07.2003, which is nearly three years after the petitioner retired, he was served with Ext.P8 order imposing upon him the punishment of reduction of pension by 20%. This was evidently done invoking the provisions of Rule 59B of Part I of the KSR, but a learned Single Judge of this Court found the same to be illegal and quashed the punishment through Ext.P9 judgment. This judgment was confirmed by the learned Division Bench of this Court through Ext.P11. ## **WP(C).No.18434 OF 2020(D) 6** 11. Therefore, as matters now stand, there is no punishment against the petitioner, even though the KSEB asserts that the enquiry report had found him guilty of the charges imputed against him. Furthermore, no explanation is forthcoming from the KSEB as to why the punishment had been imposed on the petitioner for three years and four months, when he was in service until 31.08.2000; and why it took a further nearly three years for them to impose the same through Ext.P8 order. 12. When I examine the claim of the petitioner that the period of his suspension must be treated as duty in the afore factual background, one thing becomes unmistakable-that the KSEB waited for more than 6 years and 5 months to impose punishment upon him, even though they say that the enquiry report was settled as early as 08.04.1997. This luculently shows that even the KSEB did not deem it opposite to proceed against the petitioner through a punishment, which they certainly could have done much before he retired on 31.08.2000. The only inferential presumption that can be arrived at by any reasonable person at this juncture, is that ## **WP(C).No.18434 OF 2020(D) 7** the KSEB did not find reason to impose punishment on the petitioner until he superannuated and this is forfited by the fact that they still waited for another three years to do so, through Ext.P8 order. 13. It is in this afore scenario that the provisions of Rule 56B of Part I of the KSR, and in particular clause (iii) thereof, becomes very vital. 14. As already said above, the afore provision enjoins the competent Authority to pay the full pay and allowances to an employee, if it is found that his suspension was wholly unjustified. Obviously, therefore, such an assessment was necessary and imperative to have been made by the competent Authority, before Ext.P13 order could have been issued. 15. However, when I examine Ext.P13, there is not even a whisper therein if the Authority has even considered the afore aspect. All which it is stated in the said order, is that the Chairman and Managing Director has declined his representation for treating the suspension period as duty; but no reasons whatsoever are recorded therein in support of the ## **WP(C).No.18434 OF 2020(D) 8** same. The provisions of sub-rule (iii) of Rule 56B of Part I of the KSR certainly obligates the Authority to have considered the petitioner's claim on the touchstone of the provisions contained therein, but this has not been done at all when Ext.P3 has been issued, rejecting the petition's request. 16. Of course, when I say as afore, I am fully cognizant of the submissions of Sri.Asok Cherian, learned Standing Counsel for the KSEB, that the competent Authority has issued the said order, being guided by the judgment of a learned Division Bench of this Court in **Mesaya Das v. State of Kerala [1978 KLT 160]** , which has declared the law, that the question whether the suspension of an officer was wholly unjustified or otherwise is to be determined with reference to the time when he was so placed under suspension and based on an evaluation of the facts and circumstances of each case. 17. I have no cause to object to the afore contention of Sri.Asok M. Cherian, since I am also of the firm view that the Authority ought to have considered the matter in the manner as postulated in **Mesaya Das** (supra) this while issuing Ext.P13. The fact that this has not been done is implicit from ## **WP(C).No.18434 OF 2020(D) 9** the said order and consequently, I cannot find favour with it. 18. That said, even if I am to independently assess whether the petitioner's suspension was unjustified at the time when he was so placed, since the Board decided not to impose any punishment nearly 3 and a half years before petitioner's retirement and for nearly 3 years after it, it can only lead to a _prima facie_ presumption – which I am certain is strong in the facts of this case – that even the KSEB did not find sufficient cause to impose any punishment, based on the enquiry report dated 08.04.1997. 19. In the afore circumstances and for the reasons above, I allow this writ petition and set aside Ext.P13; with a consequential direction to the competent Authority of the KSEB to reconsider the petitioner's representation dated 11.03.2020 and issue appropriate orders thereon, implicitly adhering to the provisions of Rule 56B of Part I of KSR and adverting to my observations above, as expeditiously as is possible, but not later than two months from the date of receipt of a copy of this judgment. Needless to say, all benefits consequent to the afore **WP(C).No.18434 OF 2020(D) 10** exercise shall be paid and disbursed to petitioner, within a period of two moths thereafter. This writ petition is thus ordered. **Sd/-** ## **DEVAN RAMACHANDRAN** **JUDGE** **LEK** ## **WP(C).No.18434 OF 2020(D) 11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE NO. EB1/DISC.ACTION/SAB/93/2544 DATED 29-10-1993 ISSUED BY THE RESPONDENT BOARD. EXHIBIT P2 TRUE COPY OF THE LETTER NO. EB20/9394/45/4.2.94 DATED 04-02-1994 ISSUED BY THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE MEMO OF CHARGES NO. EBVS.5/16/91 DATED 12-01-1996 ISSUED BY THE RESPONDENT BOARD.** **REPLACED. MEMO OF CHARGES NO. EBVS.5/16/91 DATED 12-01-1996 REPLACED WITH MEMO OF CHARGES NO. EBVS.5/21/95 DATED 31-05-1996 AS PER ORDER DATED 19.11.20 IN I.A.NO.1/20 IN WP(C) NO.18434/20 EXHIBIT P4 TRUE COPY OF THE REPLY DATED 17-06-1996 SUBMITTED BY THE PETITIONER. EXHIBIT P5 TRUE COPY OF OF THE ENQUIRY REPORT DATED 08-04-1997 EXHIBIT P6 TRUE COPY OF THE NOTICE NO. VIG/BVI/2053/95 DATED 19-03-2003 ISSUED BY THE RESPONDENT BOARD** **EXHIBIT P7 TRUE COPY OF THE EXPLANATION DATED 05-05-2003 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT BOARD. EXHIBIT P8 TRUE COPY OF THE ORDER NO. VIG.BVI/2053/95 DATED 16-07-2003 ISSUED BY THE RESPONDENT BOARD.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 27-01-2016 IN W.P(C) NO. 27341/2003 PASSED BY THIS HON'BLE COURT.** **WP(C).No.18434 OF 2020(D) 12** **EXHIBIT P10** **TRUE COPY OF THE REPRESENTATION DATED 02-03-2016 ISSUED BY THE PETITIONER BEFORE THE CHAIRMAN OF KSEB.** **EXHIBIT P11** **TRUE COPY OF THE JUDGMENT DATED 03-12-2019 IN W.A NO. 2202/2016 PASSED BY THIS HON'BLE COURT** **EXHIBIT P12 TRUE COPY OF THE RPERESENTATION DATED 11-03-2020 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF THE KSEB** **EXHIBIT P13 TRUE COPY OF THE COMMUNICATION NO. VIG/A3(B6)/2053/1995/1932 DATED 22-06-2020 ISSUED BY THE CHIEF VIGILANCE OFFICER OF KSEB.**