V.Sureshkumar vs Kerala State Electricity Board ...
2021 Latest Caselaw 15889 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
            THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
        MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                       WP(C) NO. 14353 OF 2020
PETITIONERS:
     1     V.SURESHKUMAR
           OVERSEER (ELECTRICAL) KERALA STATE ELECTRICITY BOARD
           LIMITED, 66 KV SUBSTATION, VIZHINJAM,
           THIRUVANANTHAPURAM,RESIDING AT KALAYAMKURICHI VEEDU,
           KAZHIVOOR P.O.THIRUVANANTHAPURAM-695 526.

    2       CARMELUS P.V,
            SUPERINTENDENT, KERALA STATE ELECTRICITY BOARD LIMITED,
            ELECTRICAL CIRCLE, THIRUVANANTHAPURAM (URBAN), RESIDING
            AT ASHA NIVAS, HIGH SCHOOL ROAD, INDUSTRIAL ESTATE
            P.O.THIRUVANANTHAPURAM-695 019

            BY ADVS.
            DEEPU LAL MOHAN
            SRI.MURALI PURUSHOTHAMAN


RESPONDENTS:

    1       KERALA STATE ELECTRICITY BOARD LIMITED
            REPRESENTED BY ITS SECRETARY (ADMINISTRATION), VYDYUTI
            BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004.

    2       THE CHAIRMAN AND MANAGING DIRECTOR,
            KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTI
            BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004.

    3       THE CHIEF ENGINEER (HUMAN RESOURCE MANAGEMENT)
            KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTI
            BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004.

            BY ADV SRI.M.K.THANKAPPAN, SC, KERALA STATE ELECTRICITY
            BOARD LIMITED


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14353 OF 2020
                                     2

                               JUDGMENT

At the time when this writ petition was filed, the petitioners

working as Overseer (Electrical) and Superintendent respectively,

in the services of the Kerala State Electricity Board Ltd. (KSEB).

It is today admitted that the 2nd respondent has since retired.

2. It transpires that while the petitioners were in service,

there were chargesheeted through Ext.P1, imputing certain

misconduct against them and they say that since their replies

were found to be not satisfactory, an enquiry was initiated against

them and certain others, which led to Exts.P4 and P5

proceedings, whereby, they were completely exonerated, while

four others were found guilty. The petitioners say that the matter

thus went up to the Disciplinary Authority who, however, without

concluding any proceedings on the same, has now issued Ext.P6

order, cancelling the Enquiry for the reason that she has been

directed to do so by the Chairman and Managing Director of the

KSEB, because she had been a witness in the criminal case with WP(C) NO. 14353 OF 2020

respect to the same incident.

3. The petitioners say that Ext.P6, thereafter, led to

Exts.P7 and P8, whereby fresh imputations have been made

against them and new witnesses attempted to be added; and they

assert that this is wholly improper and illegal since the

Disciplinary Authority had no power to have disregarded Exts.P4

and P5 and to have then ordered a fresh enquiry on the dictates of

the Chairman and Managing Director of the KSEB.

4. The petitioners, therefore, pray that Ext.P6 and the

consequent Exts.P7 and P8 proceedings be set aside,

5. I have heard Sri.Deepu Lal Mohan - learned counsel

for the petitioners and Sri.M.K.Thankappan - learned Standing

Counsel appearing for the respondents.

6. The facts involved in this case are in a very narrow

compass.

7. It is undisputed that the petitioners were proceeded

against on various allegations, as are available from Ext.P1 series

Charge Memos. The Enquiry Officer, thereafter, found them not WP(C) NO. 14353 OF 2020

guilty in Exts.P4 and P5 Reports and placed the same before the

Disciplinary Authority for further action.

8. It appears that at this time, a new incumbent assumed

the office of the Disciplinary Authority, namely Smt.Mini

George, and she then issued notices to show cause to the four

persons found guilty in the Enquiry, when they asserted that she

cannot continue as the Disciplinary Authority, since she was a

witness against them in the criminal case. The records reveal

that she, resultantly, took up the matter with the Chairman and

Managing Director of the KSEB, who appears to have directed

her to set aside the entire Enquiry proceedings and to initiate a

fresh one. It is in such circumstances, that the Disciplinary

Authority has now issued Ext.P6.

9. There are several questions involved in this case: the

primary among them being whether, pending an Enquiry

proceeding, a fresh one can be initiated, based on the same set of

allegations, after obliterating the earlier proceedings. The second

corollary question is whether if the Disciplinary Authority faces WP(C) NO. 14353 OF 2020

any legal inhibition in continuing, should the Enquiry

proceedings itself be scrapped, or should another Officer,

without such an inhibition take over.

10. As far as the first issue is concerned, there can be no

doubt - it being expressly conceded - that the petitioners were

proceeded under an Enquiry, leading to Exts.P4 and P5 reports

exonerating them. Obviously, therefore, they obtained a right to

be heard before the Disciplinary Authority took any action

against them, as per the well-established canons of

Administrative Law. However, instead of doing so, the

Disciplinary Authority has now issued Ext.P6 proceedings,

setting aside the entire Enquiry, but without affording any

opportunity to the petitioners and without hearing their version.

11. It is now settled, without requirement for

reinstatement, that in Administrative Law, the Disciplinary

Authority has a right to either concur or dissent from the

findings of the Enquiry Officer. In the former case, obviously,

the proceedings would conclude; while in the latter, the WP(C) NO. 14353 OF 2020

Disciplinary Authority becomes obligated to issue notices to the

delinquents and seek their version, before taking any further

action, after the dissent is recorded. However, in the case at

hand, the Disciplinary Authority has done neither and appears to

have issued Ext.P6, setting aside the Enquiry proceedings in

toto, based on the dictates of the Chairman and Managing

Director of the KSEB, who, it is admitted, is the Appellate

Authority, is in the designated hierarchy.

12. It is, therefore, ineluctable that the action now

proposed the Disciplinary Authority, through Ext.P6, at least as

against the petitioners, are completely improper because, even

though they were enjoying a report in their favour, namely

Exts.P4 and P5, the said Authority is seem to have disregarded

them, to order a fresh enquiry, without even issuing them any

notice, which, in my firm view, is egregiously impermissible and

unheard of in Administrative Law.

13. On the second issue, even if it is held that the

Disciplinary Authority had acquired any legal inhibition in WP(C) NO. 14353 OF 2020

further proceeding on account of the fact that she had appeared

as a prosecution witness before a Criminal Court, the competent

Authority of the KSEB was obligated to substitute her with a

competent Officer, and but could not have directed the said

Authority to scrap the Enquiry proceedings, in the manner as has

been recorded in Ext.P6. This is more so in this case because it

is expressly conceded that the earlier Disciplinary Officer, who

initiated the Enquiry had no legal incapacity and that it was

solely Smt.Mini George, who assumed office much later, who

suffered from such, for the reasons seen above

In the afore circumstances, I am clear in my mind that

Ext.P6 cannot obtain legal imprimatur.

In summation, I set aside Ext.P6, as also the consequent to

Exts.P7 and P8, as against the petitioners alone; however, leaving

full liberty to the competent Disciplinary Authority to continue

further proceedings against them however, implicitly adverting to

Exts.P4 and P5 reports of the Enquiry Officer and after following

due procedure, as is required under the applicable Rules and WP(C) NO. 14353 OF 2020

Regulations, as also the tenets of Administrative law.

Needless to say, the Disciplinary action against the

petitioners, based on Exts.P4 and P5, will be concluded by the

Disciplinary Authority, in the manner as directed above, as

expeditiously as is possible, but not later than three months from

the date of receipt of a copy of this judgment and the resultant

order will communicated to them without any avoidable delay

thereafter.

This Writ Petition is thus ordered.

Sd-

                                         DEVAN RAMACHANDRAN
   SAS/02/08/2021                              JUDGE
 WP(C) NO. 14353 OF 2020


                   APPENDIX OF WP(C) 14353/2020

PETITIONERS' EXHIBITS

EXHIBIT P1              THE PHOTOCOPY OF THE MEMO OF CHARGES AND

STATEMENT OF ALLEGATION NO EBVS 2/23/2016 DATED 25.10.2016 ISSUED BY THE 3RD RESPONDENT TO THE 1ST PETITIONER

EXHIBIT P2 THE PHOTOCOPY OF THE EXPLANATION DATED 7.12.2016 SUBMITTED BY THE 1ST PETITIONER TO EXHIBIT P1 MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS

Exhibit P3 THE PHOTOCOPY OF THE ORDER NO EBVS.2/23/2016/238 DATED 24.3.2017 ISSUED BY THE 3RD RESPONDENT

Exhibit P4 THE PHOTOCOPY OF THE ENQUIRY REPORT 20.10.2018 SUBMITTED BY THE ENQUIRY OFFICER IN RESPECT OF THE 1ST PETITIONER

Exhibit P5 THE PHOTOCOPY OF THE ENQUIRY REPORT 20.10.2018 SUBMITTED BY THE ENQUIRY OFFICER IN RESPECT OF THE 2ND PETITIONER

Exhibit P6 THE PHOTOCOPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT NO EBVS 2/23/2016/2009 DATED 21.4.2020

Exhibit P7 THE PHOTOCOPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION NO V.G./B3/5845/2020/1077 DATED 20.5.2020 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER

Exhibit P8 THE PHOTOCOPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION NO V.G./B3/5845/2020/1078 DATED 20.5.2020 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER

Exhibit P9 THE PHOTOCOPY OF THE REPLY DATED 29.6.2020 SUBMITTED BY THE 2ND PETITIONER TO EXHIBIT-P8

Exhibit P10 THE PHOTOCOPY OF THE JUDGMENT DATED WP(C) NO. 14353 OF 2020

04/01/2021 OF THE COURT OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE , THIRUVANANTHAPURAM IN C.C.NO.1985/2016.

//TRUE COPY//

P.A. TO JUDGE