Santosh Jitendra Kshirsagar vs Superintending Engineer, ...
2023 Latest Caselaw 10146 Bom

2023:BHC-NAG:14453-DB




              Judgment

                                                                      109 wp6599.18

                                              1

                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR

                            WRIT PETITION NO.6599 OF 2018

              Santosh Jitendra Kshirsagar,
              aged about 42 years,
              occupation service, r/o at post Viwara,
              taluka Patur, district Akola.         ..... Petitioner.

                                     :: V E R S U S ::

              1. Superintending Engineer,
              Maharashtra State Electricity
              Distribution Company Limited,
              Washim Circle, Civil Lines,
              Vidhyut Bhavan, Washim.

              2. Chief Engineer, Maharashtra State
              Electricity Distribution Company
              Limited, Akola Zone, Akola,
              Vidhyut Bhavan, Ratanlal Plot,
              Akola, taluka and district Akola.

              3. Regional Director, Maharashtra State
              Electricity Distribution Company
              Limited, Nagpur Region, Nagpur,
              Vidyut Bhavan, Katol Road, Nagpur. ..... Respondents.
              ======================================
              Shri A.B.Patil, Counsel for the Petitioner.
              Shri S.V.Purohit, Counsel for Respondents.
              ======================================
              CORAM : AVINASH G.GHAROTE & URMILA JOSHI-PHALKE, JJ.
              CLOSED ON : 15/09/2023
              PRONOUNCED ON : 03/10/2023

              JUDGMENT (Per : Urmila Joshi-Phalke, J.)

1. Heard learned counsel Shri Amol Patil for the

petitioner and learned counsel Shri S.V.Purohit for the

.....2/-

Judgment

109 wp6599.18

respondents. Rule. Heard finally by consent of learned

counsel appearing for parties.

2. The challenge is to imposition of punishment on

the petitioner by respondent No.1 by order 28.2.2013 and

recovery consequent to the said order by issuing show cause

notice dated 2.2.2013. The petitioner has also challenged

orders of first appellate authority dated 21.6.2016 and

second appellate authority dated 15.3.2018 as well as

suspension order dated 1.9.2012.

3. The petitioner was initially appointed as Junior

Engineer in the year 2003 and continued in service. He was

served with order of suspension dated 1.9.2012 when he was

working at Washim Sub Division. He was also served with

chargesheet on an allegation that due to dereliction in duties

by him damage was caused to the respondent/company

which is a misconduct under Employees' Service Regulation

of the Maharashtra State Electricity Distribution Company

Limited (the Regulation) in view of Regulation No86(3).

4. The facts on record show that consumer namely

owner of "Hotel Maniprabha" has obtained electricity

.....3/-

Judgment

109 wp6599.18

connection in the category of commercial consumer.

However, bill charged to him was at the rate of industrial

consumers. As per allegations, while issuing the bill, the

petitoiner has not taken due care and caused damage to the

Maharashtra State Electricity Distribution Company Limited

(the distribution company). Regarding the alleged incident,

an offence was registered against the consumer for

committing theft.

5. After receipt of the chargesheet, the petitioner

had denied all allegations made in the chargesheet. An

enquiry was conducted against the petitioner and Enquiry

Officer exonerated the petitioner from charge no.2 and held

guilty for two charges. The copy of the enquiry report was

served on the petitioner along with show cause notice for

imposing punishment. The punishment was imposed by

which recovery of Rs.29,42,012/- was directed and annual

increment was withheld for three years. In addition to that,

suspension period was directed to be treated as punishment

and salary and allowances, during the suspension period,

have been withheld. The suspension of the petitioner was

withdrawn by imposing the said punishment. It is further

.....4/-

Judgment

109 wp6599.18

contention of the petitioner that during the pendency of the

enquiry, respondent No.1 appointed a two-member

committee to fix responsibility of persons who charged bill as

per the Industrial Tariff though consumer was charged as per

the commercial tariff. The committee held the persons

responsible are the administrative officer and from divisional

accountant and UDC billing department. Another committee

was constituted to identify responsible persons. Thus, the

petitoiner was not held liable for the loss caused to the

company by these two committees.

6. Against the imposition of punishment, the

petitioner had preferred an appeal before respondent No.2 -

Chief Engineer, Maharashtra State Electricity Distribution

Company Limited, Akola Zone, Akola on 4.3.2013, which was

first appellate authority, but the same was dismissed on

21.6.2016. The petitioner had preferred second appeal

before the Second Appellate Authority. During the pendency

of the second appeal, the consumer had deposited entire

amount of Rs.29,42,012/-. Considering the same, the second

appellate authority modified the punishment directing to

withhold two increments and stopped the recovery from

.....5/-

Judgment

109 wp6599.18

March 2018. However, the second appellate authority

maintained the punishment treating the suspension period as

a punishment.

7. The petitioner challenged the order of the second

appellate authority on the ground that though the entire

amount is recovered from the consumer, the amount was

recovered from the petitioner to the tune of Rs.6,46,910/-

illegally though he was not responsible for the said damage.

The respondents after imposing punishment had granted

promotion to the petitioner from Assistant Engineer to the

Deputy Executive Engineer by order dated 6.8.2016 and,

thereafter, posted him as Additional Executive Engineer by

order dated 27.6.2017. Thus, by this fact it can be inferred

that the respondents have condoned the act of the petitioner.

In the above circumstances, the petitioner claimed that the

order imposing the punishment is wrong, illegal, and liable to

be set aside and prayed for quashing of the other orders

consequent of imposing the punishment.

8. The respondents by way of affidavit denied the

contentions and submitted that the punishment has been

.....6/-

Judgment

109 wp6599.18

imposed upon the petitioner after conducting proper

departmental enquiry against the petitioner and by affording

sufficient opportunity to him. It is not denied that the

petitioner was serving as Junior Engineer and he was served

with the chargesheet and punishment was imposed on him.

As per contentions of the respondents, it was responsibility of

the petitioner to charge the bill by considering the consumer

as per the commercial tariff, but consumer was charged by

applying the Industrial Tariff which had caused loss to the

respondent/company and, therefore, action of imposing

punishment is legal and proper one and prays for dismissal of

the petition.

9. Heard learned counsel Shri A.B.Patil for the

petitioner and learned counsel Shri S.V.Purohit for the

respondents.

10. Learned counsel for the petitioner submitted that

the chargesheet was issued to the petitioner on three

charges; (1) negligence which caused loss to the company

which had two parts, (a) theft by consumer, and (b) charging

of wrong tariff; (2) breach of companies rules and

.....7/-

Judgment

109 wp6599.18

regulations; and (3) negligence and ignorance towards work.

The petitioner was exonerated of charge No.2 and charge

Nos.1 and 3 are held to be proved. Though the Enquiry

Officer recorded a finding that the petitioner cannot be held

responsible for theft and exonerated him, still contradictory

finding is recorded that charge No.1 is proved. At the

relevant time, the disciplinary authority had also constituted

expert committee to enquire into the matter to ascertain the

responsibility of the persons and the said committee

exonerated the present petitioner and came to the conclusion

that one Rajesh Sule, Deputy Manager (Finance and

Accounts) is responsible for the same and had imposed

punishment on him. The disciplinary authority without

considering these aspects held the petitioner liable and

imposed the punishment of barring three increments with

cumulative effect and recovery of Rs.29,42,012/- and

suspension period is treated to be punishment period.

Despite the disciplinary committee had full knowledge of the

fact that expert committee exonerated the petitioner, the

disciplinary authority held the petitioner liable. The said

action is arbitrary. The first appellate authority in a very

.....8/-

Judgment

109 wp6599.18

cryptic manner rejected the appeal. The second appellate

authority without considering the entire controversy by an

unreasoned order modified the punishment and partly

allowed the second appeal and erroneously held the

petitioner liable by modifying the punishment barring two

increments with cumulative effect and continued suspension

period as punishment period. The entire exercise is carried

out by the disciplinary authority, the first appellate authority,

and the second appellate authority without considering the

material on record. They ought to have considered that the

petitioner was exonerated by the expert committee which

was constituted to ascertain the person responsible and to fix

the responsibility. Thus, the orders passed by the

disciplinary authority, first appellate authority, and the

second appellate authority suffer from perversity and,

therefore, the present petition is filed by the petitioner.

11. In support of his contentions, learned counsel for

the petitioner placed reliance on the decisions of the

Honourable Apex Court in the cases of :

.....9/-

Judgment

109 wp6599.18

1. State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya1;

2. Managing Director, ECIL, Hyderabad and ors vs. B.Karunakar and ors 2

3. Allahabad Bank and ors vs. Krishna Narayan Tewari3.

12. Per contra, learned counsel for the respondents

submitted that the evidence on record especially Form-MR9

would show that the petitioner, who was taking meter reading

for more than six years, was negligent and was not doing his

job properly. Every Engineer basically knows that the tariff

applicable to the hotel is commercial and despite the fact

being within the knowledge of the petitioner he never

communicated or reported to the office about the incorrect

tariff applied to the hotel and, therefore, the petitioner is

liable for the loss caused to the company. The internal

committee was formed to investigate the matter and findings

recorded were used for identifying the guilty persons. The

said report does not deal and consider the aspect of Junior

Engineer/petitioner's duty and denied that the committee had

exonerated the petitioner as claimed. Thus, the orders

1 (2011)4 SCC 584 2 (1993)4 SCC 727 3 (2017)2 SCC 308

.....10/-

Judgment

109 wp6599.18

passed by the disciplinary committee, first appellate

authority, and second appellate authority are in pursuance of

the settled law and no judicial review is permissible. Hence,

the writ petition is devoid of merits.

13. In support of his contentions, learned counsel for

the respondents placed reliance on the decisions of the

Honourable Apex Court in the cases of

1. Union of India and ors vs. P.Gunasekaran 4

2. Union of India and ors vs. Subrata Nath5

14. Having heard learned counsel for the parties,

there is no dispute as to the fact that initially the petitioner

was serving as Junior Engineer. In the year 2012, he was

working at Washim Sub Division wherein he was served with

order of suspension and the chargesheet. The Enquiry

Officer held him guilty after conducting the departmental

enquiry. He preferred the appeal before the first appellate

authority and the second appellate authority. The first

appellate authority maintained the punishment imposed on

him, whereas, the second appellate authority modified the

4 (2015)2 SCC 610 5 2022 SCC OnLine SC 1617

.....11/-

Judgment

109 wp6599.18

said punishment by holding that the petitioner is guilty,

however reduced the punishment by barring two increments

and treating the suspension period as his punishment.

However, the said authority set aside the punishment to the

extent of recovery of amount from March 2018. The order

passed by the second appellate authority is under challenge

in this petition.

15. The chargesheet was issued to the petitioner on

19.9.2012. Following three charges were framed against the

petitioner:

(i) negligence which caused loss to the company (misconduct under Employees' Service Regulation of the Maharashtra State Electricity Distribution Company Limited in view of Regulation No86(3);

(ii) breach of companies rules and regulations (misconduct under Employees' Service Regulation of the Maharashtra State Electricity Distribution Company Limited in view of Regulation No.86(3), and

(iii) negligence and ignorance towards work (misconduct under Employees' Service Regulation of the Maharashtra State Electricity Distribution Company Limited in view of Regulation No.86(3).

16. Admittedly, by this petition, the petitioner has

challenged the findings of the Enquiry Officer and orders

.....12/-

Judgment

109 wp6599.18

passed by the disciplinary authority, first appellant authority,

and second appellate authority by invoking the writ

jurisdiction. This court has limited jurisdiction in exercise of

powers under Article 226 of the Constitution of India. It is

well settled that in exercise of judicial review, the court does

not act as an Appellate Forum over findings of disciplinary

authority. The Court does not re-appreciate evidence on the

basis of which finding of misconduct has been arrived at in

the course of a disciplinary enquiry. The court in exercise of

judicial review must restrict its examination to determine,

whether (a) rules of natural justice have been complied with,

(b) finding of misconduct is based on some evidence, (c)

statutory rules governing conduct of disciplinary enquiry have

been observed, and (d) findings of disciplinary authority

suffer from any perversity or the punishment is

disproportionate to the proven misconduct.

17. Learned counsel for the petitioner has taken us

through the entire material and pointed out that it was not

the petitioner who was responsible for applying the wrong

tariff, but the official, who was working in the Finance and

Accounts Department, who was responsible for the same.

.....13/-

Judgment

109 wp6599.18

The enquiry was conducted against the petitioner wherein the

Enquiry Officer specifically observed that the petitioner was

taking meter reading and on Form MR9 it was specifically

mentioned that tariff of industrial was applied to the

consumer when consumer has obtained the connection under

the commercial category. Despite the petitioner was knowing

about the same, he neither taken any action nor reported the

said fact to the respondents. Thus, there was dereliction in

the duty by the petitioner and, therefore, the petitioner is

held liable for causing loss to the company. The findings of

the Enquiry Officer specifically show that it was the petitioner

who was taking meter reading on Form MR9 and, therefore, it

was his duty to verify whether the billing is as per the

industrial tariff or commercial tariff as tariff code specifically

is mentioned on the said form. There is no dispute as far as

the exoneration of the petitioner from charge No.2. However,

by making the above said observations, the petitioner was

held responsible for non reporting of the said fact to the

office and for not taking the action against the concerned

consumer.

.....14/-

Judgment

109 wp6599.18

18. There is no dispute that internal committee was

constituted to ascertain and fix the responsibility of the

persons who are responsible to charge the consumer who is

the owner of the "Hotel Maniprabha" by applying the wrong

industrial tariff instead of commercial tariff. The

investigation was carried out by the said committee and the

report of the said committee shows that the consumer "Hotel

Maniprabha" at Washim was provided with commercial

connection with consumer No.326010100430 having load

8kw. The consumer further applied for enhancement of load

with additional 27kw load by furnishing an affidavit on

9.10.2007. The load was sanctioned vide NO.EEWSM/07-08/

LS/61 dated 10.12.2007 for CL and F Connection by the then

Executive Engineer. The additional load was sanctioned to

the consumer and since the total load was more than 20KW,

new consumer number 326019082200 was allotted and the

billing was transferred in the division office as per the

prevailing practice. After release of the connection, the form

to be fed to the industrial tariff for billing purpose are

prepared by the Junior Engineer and signed by the Dy

Executive Engineer and Executive Engineer, Washim. It is

.....15/-

Judgment

109 wp6599.18

further observed that from the forms it can be seen that the

tariff code is 701 and description of the load shows the

purpose of hotel consumption is commercial. While feeding

the NSC Report, the tariff code was changed and the tariff

applied as the industrial category. While feeding the NSC by

the account section, it was necessary to compare first bill

with the parameters entered in the form received from the

field which was not done by the revenue stamp of the

division office. It is specifically held by the committee that

since proper details are given by Junior Engineer, Deputy

Executive Engineer and Executive Engineer, responsibility of

changing tariff does not lie on them. Feeding of proper tariff

is not discharged by the then officials of the accounts section

and concerned UDC Billing Section. They have also not

checked applicable tariff after printing of first bill. Hence,

they are responsible. The said committee further constituted

another committee of three persons. Thus, by these reports

the committee specifically observed that the petitioner, who

was Junior Engineer at the relevant time, is not responsible

for applying the wrong tariff. However, it was the person,

who fed NSC Report, who has changed the tariff code and,

.....16/-

Judgment

109 wp6599.18

therefore, the persons from Finance and Account Department

are responsible for the loss caused to the company.

19. Though learned counsel for the respondents

placed reliance on work norms of Sub Engineer/Junior

Engineer of section office, the said document does not bear

either date or signature or seal to show authenticity of the

document. It further reveals from the record that the

amount of loss caused to the respondents is recovered from

the consumer and penal action was also taken against the

consumer. Employee namely Rajesh Sule was held

responsible for changing the code of tariff and was held guilty

for the same and enquiry was conducted against him and the

punishment was imposed.

20. The enquiry report was submitted by the

concerned Enquiry Officer on 24.12.2012. Whereas, the

committee report was submitted on 29.12.2012 subsequent

to enquiry report. However, the said report was available

when the first appellate authority confirmed the punishment

imposed by the disciplinary authority. The first appellate

authority had passed a very cryptic order and confirmed the

.....17/-

Judgment

109 wp6599.18

punishment. The second appellate authority had also not

considered these aspects though modified the punishment.

It is pertinent to note that admittedly, the tariff code was fed

by the accounts department. From the record, it is crystal

clear that the connection form for the billing purpose was

prepared by the petitioner and signed by the Deputy

Executive Engineer and they have given proper details by

mentioning the correct tariff. However, the said tariff code

was subsequently changed while feeding the NSC report by

the accounts section. The accounts section had not

compared the first bill while feeding the NSC Report. Thus,

it was the official of the accounts department who was

responsible for the said act. The Enquiry Officer though

considered the nature of the duties of the petitioner, held him

guilty only because he has obtained subsequent meter

reading on MR9 Forms wherein it was specifically mentioned

the activity as industrial activity. Whereas, it is contention of

the petitioner that in MR9 Form he has only mentioned the

meter reading and he was not concerned regarding the

details which are fed by the accounts department. The

Enquiry Officer has also considered the aspect that it was

.....18/-

Judgment

109 wp6599.18

difficult for the petitioner to check all minute details on MR9

Form as he has to record readings of several consumers, but

not considered these aspects while giving the reasons and

held him guilty. Admittedly, these observations are sufficient

to hold that the findings recorded by the Enquiry Officer are

perverse. The first appellate authority had also not

considered these aspects and passed a cryptic order. While

modifying the punishment, the second appellate authority

had also not considered these aspects and maintained the

punishment of suspension period as his punishment. The

second appellate authority also barred the petitioner from

getting two annual increments. It is well settled that

punishment is to be imposed appropriately by considering the

nature of misconduct. After appreciating the entire material,

only role attributed to the petitioner is that he has not done

his duty with due care and caution. He was under obligation

to check all details while taking the meter reading. However,

he ignored the fact that though the consumer was under the

category of commercial use, the tariff applied to him was

industrial use. This aspect definitely covers dereliction of the

duties.

.....19/-

Judgment

109 wp6599.18

21. Learned counsel for respondents vehemently

submitted that this court is not empowered to re-appreciate

the evidence as the scope of judicial review is very limited.

He placed reliance on the decision of the Honourable Apex

Court in the case of Union of India and ors vs. Subrata Nath

cited supra wherein it is held that "it is well settled that

courts ought to refrain from interfering with findings of facts

recorded in a departmental inquiry except in circumstances

where such findings are patently perverse or grossly

incompatible with the evidence on record, based on no

evidence. However, if principles of natural justice have been

violated or the statutory regulations have not been adhered

to or there are malafides attributable to the Disciplinary

Authority, then the courts can certainly interfere." There is

no dispute as far as well settled legal position is concerned.

As observed earlier, there is no dispute that the courts will

not act as an appellate court and reassess the evidence led in

the domestic enquiry nor interfere on the ground that

another view is possible on the material on record.

22. It is held by the Honourable Apex Court in the

case of State Bank of Bikaner and Jaipur vs. Nemi Chand

.....20/-

Judgment

109 wp6599.18

Nalwaya cited supra, as relied by learned counsel for the

petitioner, that if the enquiry has been fairly and properly

held and the findings are based on evidence, the question of

adequacy of the evidence or the reliable nature of the

evidence will not be grounds for interfering with the findings

in departmental enquiries. Therefore, courts will not interfere

with findings of fact recorded in departmental enquiries,

except where such findings are based on no evidence or

where they are clearly perverse. The test to find out

perversity is to see whether a tribunal acting reasonably

could have arrived at such conclusion or finding, on the

material on record. Courts will however interfere with the

findings in disciplinary matters, if principles of natural justice

or statutory regulations have been violated or if the order is

found to be arbitrary, capricious, mala fide or based on

extraneous considerations.

23. Integrity and honesty are the essence of

organizations and employees working in organizations are

expected to work for welfare and beneficial purpose of

organizations and, therefore, it is duty of employees to take

utmost care while discharging their official duties.

.....21/-

Judgment

109 wp6599.18

24. Though the petitioner is not responsible for

changing the tariff or applying the wrong tariff, he has not

taken care to see details while taking the meter reading

which is definitely a negligence on his part.

25. When the court is considering an aspect of

punishment, it is necessary to see whether punishment

imposed is excessive or disproportionate to the gravity of

proved misconduct.

26. Admittedly, the petitioner was not responsible for

the loss caused to the respondent/company and, therefore,

contrary findings as recorded on that ground can definitely be

said to be perverse as a result of which recovery from the

petitioner by the disciplinary authority is excessive and

disproportionate punishment. Till March, 2018, amount of

Rs.6,46,910/- was recovered which is required to be

refunded to him. The punishment barring the petitioner from

getting two annual increments is also disproportionate and

requires to be modified by barring the petitioner from getting

annual increment for one year only.

.....22/-

Judgment

109 wp6599.18

27. For the reasons as aforesaid, the writ petition is

partly allowed by modifying the punishment imposed on the

petitioner by restricting the same to the petitioner from

getting one annual increment. The respondents are also

directed to refund amount of Rs.6,46,910/- with interest @

6% from August 2013 to March 2018. The respondents are

directed to refund the said amount within a period of six

weeks from today.

The writ petition stands disposed of.

(URMILA JOSHI-PHALKE, J.) (AVINASH G.GHAROTE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 05/10/2023 10:53:49