T.Zainudheen vs Kerala State Electricity Board
2021 Latest Caselaw 1198 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                      WP(C).No.18421 OF 2011(C)


PETITIONER:

               T.ZAINUDHEEN, SUB ENGINEER (Rtd.),
               THENVARKALATHIL HOUSE, PULINKAVU, CHERUKARA,,
               MALAPPURAM.

               BY ADVS.
               SRI.K.MOHANAKANNAN
               SMT.A.NALINI KUMARI
               SMT.A.R.PRAVITHA
               SRI.CHANDRASEKHARA MENON

RESPONDENTS:

      1        KERALA STATE ELECTRICITY BOARD,
               REP.BY ITS CHAIRMAN, VYDYUDHI BHAVAN, PATTOM PO,,
               THIRUVANANTHAPURAM-695 001.

      2        THE CHIEF ENGINEER, HRM, KSEB
               VYDHYUTHI BHAVAN, PATTOM.P.O.,
               THIRUVANANTHAPURAM-695001.

      3        THE DEPUTY CHIEF ENGINEER,
               ELECTRICAL CIRCLE, KSEB MANJERI-676121.

      4        STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY
               TO GOVT., POWER DEPARTMENT, THIRUVANANTHAPURAM.

               BY ADVS. SRI.M.K.THANKAPPAN, SC,
                        KERALA STATE ELECTRICITY BOARD LIMIT
                        SRI.K.S.ANIL, SC, KSEB
                        SRI.SUNIL KUMAR KURIAKOSE - GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD          ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.18421 OF 2011(C)

                                             -2-



                                    JUDGMENT

Dated this the 13th day of January 2021

The petitioner, who is stated to have

been working as a Sub Engineer in the

services of the Kerala State Electricity

Board (KSEB), says that he retired on

attaining the age of superannuation on

31.07.2004.

2. The petitioner alleges that more

than three years after he retired from

service, he received a memo of charges from

the second respondent-Chief Engineer of

KSEB, alleging that certain irregularities

had been committed by him while he was in

service during the period from 26.03.2002

to 26.3.2003. He says that this finally

led to the imposition of an amount of

Rs.61,878/- (Rupees sixty one thousand

eight hundred and seventy three only), as WP(C).No.18421 OF 2011(C)

being amounts to be recovered from him and

that he challenged this, finally leading to

Ext.P11 order, wherein the liability was

confirmed against him.

3. The petitioner, therefore, impugns

Ext.P11, as also the earlier orders, namely,

Exts.P7, P9 and P10 issued by the

Competent Authorities of the KSEB and prays

that the same be set aside.

4. Sri.K.Mohanakannan, learned

counsel appearing for the petitioner,

submitted that, as has been averred in the

writ petition, the memo of charges was

issued to his client more than three years

after he had retired on attaining the age

of superannuation and therefore, that the

entire proceedings are vitiated, going by

the extant provisions of law.

5. After saying so, Sri.Mohanakannan WP(C).No.18421 OF 2011(C)

further submitted that, as is manifest from

Ext.P11, the charges which were levelled

against his client were that there was a

mistake in the reading of an electric meter

of a consumer and that unauthorised load

connection had not been detected by him. He

pointed out that his client has been

charged with dereliction of duty, also

alleging that corrections were made in the

Reading Register without authority.

Sri.Mohanakannan submitted that through his

client had filed his statement of defence

and a departmental enquiry was conducted

thereafter, the Enquiry Officer has wholly

erred in fixing a liability of Rs.61,878/-

    and       that       this        has        been       accepted          by      the

    Deputy         Chief           Engineer,         thus        proposing           the

    punishment               of      recovery             of      this        amount,

    which          is         stated            to          be         1/4th        of
 WP(C).No.18421 OF 2011(C)



    the   total        loss       suffered          by    the     KSEB.        The

    learned         counsel              thus            contended            that

    Ext.P11,      as    also       the       other       impugned       orders,

    are   without       legs        to       stand       on     forensically;

    and   therefore,          prayed         that     the       same    be     set

    aside.

          6.   In      response,             the      learned          Standing

    Counsel      for        the    KSEB,             Sri.M.K.Thankappan,

    submitted       that      an       affidavit          has    been        filed

on record where it has been explained as to

why the petitioner was mulcted with the

impugned liability. He submitted that on

account of the incorrect reading of the

electric meter and non-detection of

unauthorised load, the consumer in question

became entitled to certain illegal benefits

and that he had remitted an amount of

Rs.5,30,464/- only belatedly. The learned

Standing Counsel submitted that the delay WP(C).No.18421 OF 2011(C)

in billing and the incorrect record of the

meter has caused loss to the KSEB to the

extent of Rs.2,47,512/- and that since the

petitioner was one of the four sub

engineers serving at that time, he has been

mulcted with only 1/4th of the said amount

as liability. He submitted that since the

KSEB has sustained loss, they are entitled

to recover this amount from the petitioner.

           7.    When             I           evaluate               the           afore

    submissions,             it        is     evident          that        even     the

    KSEB        does        not         have           a      case        that      the

    petitioner          was           charge           sheeted        during         the

    time     when       he    was           in     service         and      that    his

    contention          -         that        the          charge        sheet      was

    issued       more         than           three          years        after      his

retirement - remains uncontroverted.

8. That apart, the allegation against

the petitioner is that on account of wrong WP(C).No.18421 OF 2011(C)

reading of the meter and not maintaining

the correct record on the register, a

consumer had obtained certain benefits.

However, it is admitted by the KSEB, even

in their counter affidavit, that this

amount had been remitted by the said

consumer, through they say that it was done

belatedly and therefore, that there was

loss caused to them. However, the

proceedings are wholly unclear as to how

the adjudication of the liability against

the petitioner had been done and in what

manner the same has been computed and

fixed.

9. In fact, on 17.11.2017, another

learned Judge of this Court had directed

the KSEB to file their statement as to

whether the loss sought to be recovered

from the petitioner has been obtained from WP(C).No.18421 OF 2011(C)

the consumer. The Assistant Executive

Engineer, thereafter, filed an affidavit

dated 11.12.2017, wherein he conceded that

the consumer has remitted an amount of Rs.

5,30,464/-, but asserting that the said

payment had been made much later. There

is, however, not a whisper in this

affidavit as to how the liability was fixed

against the petitioner and the manner in

which it has been done. In this context,

even if it is taken for argument that the

petitioner is guilty of supervisory lapses

while he was in service, this by itself, in

my view, is not sufficient to mulct him

with the impugned liability, particularly

when the first demand has been made much

after he retired from service.

10. The afore being so, I notice that

even though this matter was admitted on WP(C).No.18421 OF 2011(C)

07.07.2011 and an order interdicting the

recovery against the petitioner had been

issued on that day, no attempt has been

made by the KSEB, at any point of time, to

have this order vacated and that it has

continued to be in effect until now.

11. In the afore circumstances, I allow

this writ petition and set aside Ext.P10,

as also the other impugned orders, to the

extent to which it mulcts liability on the

petitioner and order that no such recovery

shall be pursued against him in future.

This writ petition is, thus, disposed

of.

Sd/-

DEVAN RAMACHANDRAN JUDGE akv WP(C).No.18421 OF 2011(C)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CHARGES NO.

EBI/DISC/1056/07-08/5993 DATED 08/08/2007.

EXHIBIT P2 TRUE COPY OF THE DETAILED REPLY DATED 15/09/2007.

EXHIBIT P3 TRUE COPY OF THE ORDER NO.

EBI/DISC/1056/07-08/680 DATED 07/03/2008.

EXHIBIT P4 TRUE COPY OF THE ORDER ENQUIRY REPORT NO.

EE/CKY/2009-2010/1 DATED 01/06/2009.

EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 01/10/2009.

EXHIBIT P6 TRUE COPY OF THE DETAILED REPLY TO EXT.P5.

EXHIBIT P7 TRUE COPY OF THE ORDER NO.

EBI/DISC/1056/2007-2008/3127 DATED 01/02/2010.

EXHIBIT P8 TRUE COPY OF APPEAL DATED NIL BEFORE THE 2ND RESPONDENT DATED 04/03/2010.

EXHIBIT P9 TRUE COPY OF THE ORDER NO.

EBVS.7/6/2010/1149 DATED 15/12/2010.

EXHIBIT P10 TRUE COPY OF THE NOTICE NO. GBI/DA/2010-

11/1642 DATED 05/01/2011.

EXHIBIT P11 TRUE COPY OF THE ORDER NO.

VIG/B1/8362/06/1096 DATED 16/05/2011.

RESPONDENT'S/S EXHIBITS : NIL.

//TRUE COPY// P.A. TO JUDGE