Joseph Froid Periara vs The Kerala State Electricity ...
2021 Latest Caselaw 1989 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

     TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                       WP(C).No.32287 OF 2019(I)

PETITIONER:
               JOSEPH FROID PERIARA
               AGED 52 YEARS
               S/O. LATE FRANCIS PERAIRA, OVERSEER (REMOVED FROM
               SERVICE, 66 KV SUB STATION, NJARAKKAL VYPIN, UNDER
               TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD,
               KALAMASSERY, RESIDING AT KALAVARAMPARAMBIL,
               44/1074/B/5, N. KALOOR, POTTAKUZHY, KOCHI 682 017.

               BY ADVS.
               SRI.C.UNNIKRISHNAN (KOLLAM)
               SRI.M.R.SUDHEENDRAN
               SRI.JOHNSON GOMEZ
               SMT.UTHARA A.S

RESPONDENTS:

      1        THE KERALA STATE ELECTRICITY BOARD
               REPRESENTED BY ITS SECRETARY, VYUDYUTHI BHAVAN,
               PATTOM, PATTOM PALACE P.O.
               THIRUVANANTHAPURAM 695 004.

      2        THE CHAIRMAN AND MANAGING DIRECTOR,
               KERALA ELECTRICITY BOARD, VYUDYUTHI BHAVAN PATTOM,
               PATTOM PALACE P.O. THIRUVANANTHAPURAM 695 004.

      3        THE CHIEF ENGINEER (HRM),
               KERALAL STATE ELECTRICITY BOARD, VYUDYUTHI BHAVAN,
               PATTOM, PATTOM PALACE, P.O.
               THIRUVANANTHAPURAM 695 004.

      4        THE CHIEF ENGINEER
               (DISTRIBUTION CENTRAL), KERALA STATE ELECTRICITY BOARD
               ERNAKULAM, KOCHI 682 011.

      5        THE EXECUTIVE ENGINEER,
               ELECTRICAL DIVISION,
               KERALA STATE ELECTRICITY BOARD ERNAKULAM,
               KOCHI 682 018.

               R1-5 BY SMT.ANEETHA A.G., SC, KERALA STATE ELECTRICITY
               BOARD LIMITED

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-12-
2020, THE COURT ON 19-01-2021 DELIVERED THE FOLLOWING:
 W.P.(C).No.32287/2019
                                         2


                         ANU SIVARAMAN, J.
                    = = = = = = = = = = = = = = =
                       W.P.(C).No.32287 of 2019
                   = = = = = = = = = = = = = = = =
                Dated this the 19th day of January, 2021

                                  JUDGMENT

1. This writ petition is filed with the following prayers:-

"i.To declare that the entire disciplinary proceedings culminated in the orders Exts.P7 and P20 are violative of Article 14,16,19 and 21 of Constitution of India and rules pertaining to the disciplinary proceedings.

ii.Call for the records leading up to Exts.P7 and P21 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction.

iii.To issue a Writ of Mandamus commanding the respondents to reinstate the petitioner in service forthwith, with all consequential benefits including seniority and salary arrears."

2. Heard the learned counsel for the petitioner and the learned

standing counsel appearing for the respondents.

3. The petitioner challenges Exhibit P20 order passed in appeal

on the ground that the specific directions contained in Exhibit

P17 judgment of this Court have been ignored while issuing

the same.

W.P.(C).No.32287/2019

4. It is submitted that the petitioner had challenged the order

imposing the punishment of removal from service by filing an

appeal in terms of the Kerala State Electricity Board

Employees (Classification, Control & Appeal) Regulation. By

Exhibit P9 order, the appellate authority rejected the specific

contentions raised by the petitioner, but decided to modify the

punishment as compulsory retirement. The said order was

again challenged by the petitioner by filing W.P.(C).No.27655

of 2015. The said writ petition was disposed of by Exhibit P13

judgment directing the second respondent to reconsider the

appeal preferred by the petitioner, considering his specific

contentions. Thereafter, Exhibit P14 order was passed, which

was again challenged before this Court. This Court found that

there was no proper consideration of the appeal. On the said

finding, Exhibit P14 was set aside and a fresh consideration of

the appeal was ordered. Thereafter, Exhibit P16 order was

passed, upholding the punishment, which again came to be

challenged. By Exhibit P17 judgment, the entire aspects of

the matter were examined by this Court. The specific W.P.(C).No.32287/2019

contentions of the petitioner were recorded and the appellate

authority was directed to reconsider the appeal on the specific

ground pointed out by the petitioner. Exhibit P20 is the order

passed in appeal pursuant to Exhibit P17 judgment. The

petitioner challenges Exhibit P20 on the ground that the

specific grounds directed to be considered in Exhibit P17 have

not been considered even while passing Exhibit P20 order. It is

submitted that in Exhibit P17 judgment, especially paragraph

17 to 24 thereof, would show that the specific contentions of

the petitioner with regard to bias, non supply of the material

which was relied on in the enquiry to the petitioner, reliance

on material which was never put to the petitioner in the

enquiry, reliance placed on a confession statement of another

employee, who had not been cited as a witness in the enquiry,

and the absence of specific charges had not been considered

by the appellate authority in Exhibit P20. It is contended that

the finding that there was no procedural irregularity or

violation of the principles of natural justice is completely

against the facts. It is stated that the finding in Exhibit P20 is

to the effect that the slight deviations in the procedure did not W.P.(C).No.32287/2019

prejudice the petitioner and therefore, the petitioner cannot

rely on those aberrations to challenge the punishment

imposed on him. It is submitted by the learned counsel for the

petitioner that the valid contentions urged by the petitioner as

against the enquiry and the procedure followed for imposing

punishment had been accepted by this Court in Exhibit P17

judgment. This Court had held that the enquiry authority and

the disciplinary authority have to record their findings on each

of the charges with the reasons thereof and that the said

procedure had not been complied with by either of the said

authorities, apart from highlighting the specific contentions of

the petitioner. This Court in Exhibit P17 had held as follows:-

"The inquiry authority in the conclusive part of his report has made a general statement that for the reasons and facts noted above and detailed above, all the charges against both the accused are proved. Obviously, such general finding by the enquiry officer does not satisfy the mandate of the Regulations. The disciplinary authority also in his Exhibit P7 order imposing penalty, has not come to the conclusion of the guilt of the petitioner on each of the charges. To that extent, there is violation of the Regulations 1969."

W.P.(C).No.32287/2019

5. It was further found that the appellate authority, in spite of

repeated directions, had not considered the specific grounds

raised in the appeal by the petitioner as against the enquiry

report and the order imposing penalty. It was with the said

observations that this Court in Exhibit P17 judgment directed

a reconsideration of the appeal. However, in Exhibit P20

appellate order also, the appellate authority continues to take

an extremely casual view of the matter. It is again found that

the enquiry was conducted in substantial compliance with the

principles of natural justice and that in view of the serious

nature of the allegations raised against the petitioner, the

punishment of compulsory retirement was valid and legal.

6. The learned counsel for the petitioner places reliance on the

provisions of the Kerala State Electricity Board Employees

(Classification, Control & Appeal) Regulation as also on the

decision of the Apex Court in State of Andhra Pradhesh and

others v. Sree Rama Rao [AIR 1963 SC 1723], State of

Bihar and others v. Phulpari Kumari (2020) 2 SCC 130

and State of Karnataka and another v. N.Gangaraj (2020) W.P.(C).No.32287/2019

3 SCC 423, Pokken v. Jessie Estate [2001 KHC 589], Roop

Singh Negi v. Punjab National Bank and others [2009

KHC 4143] in support of his contentions.

7. A counter affidavit has been placed on record by the

respondents. It is contended therein that the specific grounds

raised by the petitioner in the appeal have been considered by

Exhibit P20 and that the enquiry authority had come to

conclusion that the petitioner was guilty of all the charges

leveled against him. It is submitted that the enquiry was

conducted in substantial complaince with the procedure

provided in the Regulations and that the finding of guilt

recorded against the petitioner was, therefore, fully

sustainable. It is further submitted that the attempt of the

petitioner is to rely on minor procedural infractions to get over

the substantiated findings of guilt as against him.

8. Several decisions of this Court and of the Apex Court are

relied on to contend that the scope of interference by this

Court in departmental enquiry matters is extremely limited W.P.(C).No.32287/2019

and that this Court should not embark on a fact finding

enquiry in such matters.

9. I have considered the contentions advanced. The incident,

which led to the initiation of the disciplinary proceedings,

occurred in the year 2006. A full fledged enquiry appears to

have been conducted against the petitioner. It is not in dispute

before me that the enquiry report was not served on the

petitioner along with show cause notice. It is also not in

dispute at this point in time that Exts.10(d), 10(e), 10(f) and

10(g), which were additional documents produced by the

respondents and which were not served to the petitioner have

been relied on to find the petitioner guilty on at least some of

the charges. The respondents in Exhibit P20 order itself admit

to some procedural infractions in the matter of the conduct of

the enquiry as well as the imposition of the penalty. However,

the contention appears to be that the infractions are not so

grievous as to vitiate the proceedings or the imposition of the

penalty.

W.P.(C).No.32287/2019

10.Having considered the findings in Exhibit P17 judgment, I am

of the opinion that the contentions raised by the respondents

that the petitioner is not prejudiced by the findings in the

enquiry and resultant imposition of penalty without giving him

a due opportunity to meet the contentions raised against him

cannot be accepted. This is more so in view of the fact that

the specific failings in the procedure had been examined by

this Court in Exhibit P17 judgment and the matter was

remanded to the appellate authority to consider those aspects

on their merits. The continued generalization and vague

statements, relying on the nature of the allegations against the

petitioner, cannot be accepted. In view of the specific findings

contained in Exhibit P17, I am of the opinion that Exhibit P20

also does not amount to a proper consideration of the appeal

preferred by the petitioner on the specific grounds raised by

him as has been directed by this Court on repeated occasions.

11.In the above view of the matter, this Court is compelled to set

aside Exhibit P20 order and direct a reconsideration of the

appeal on its merits. The specific contention of the petitioner W.P.(C).No.32287/2019

that additional documents, copies of which were never served

on the petitioner, had formed the basis for the findings of guilt

against him on the charges and that the enquiry report and

the imposition of the penalty were vitiated by procedural

infractions are liable to be considered by the appellate

authority in accordance with law.

12.In the above view of the matter, Exhibit P20 is set aside.

There will be a direction to the appellate authority to

reconsider the appeal in accordance with the directions

contained in Exhibit P17 judgment and pass appropriate

orders on the same, within a period of two months from the

date of receipt of a copy of this judgment.

Writ petition is ordered accordingly.

Sd/-

Anu Sivaraman, Judge

sj/11/1/2021 W.P.(C).No.32287/2019

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE MEMO OF CHARGES DATED 16/12/2006.

EXHIBIT P2              A TRUE COPY OF THE REPLY DATED
                        12/1/2007 SUBMITTED BY THE PETITIONER.

EXHIBIT P3              A TRUE COPY OF THE SHOW CAUSE NOTICE
                        DATED 4/6/2013.

EXHIBIT P4              A TRUE COPY OF THE REPLY DATED
                        11/9/2013 SUBMITTED BY THE PETITIONER.

EXHIBIT P5              A TRUE COPY OF THE REPRESENTATION
                        SUBMITTED BY THE PETITIONER.

EXHIBIT P6              COPY OF THE ENQUIRY REPORT DATED NIL.

EXHIBIT P7              TRUE COPY OF THE PROCEEDINGS DATED
                        7.11.2014 OF THE 3RD RESPONDENT.

EXHIBIT P8              A TRUE COPY OF THE APPEAL DATED
                        10/12/2014.

EXHIBIT P9              A TRUE COPY OF THE APPELLATE ORDER
                        DATED 6/8/2015.

EXHIBIT P10             TRUE COPIES OF THE PROGRESS REPORT.

EXHIBIT P11             TRUE COPIES OF THE PROGRESS REPORT.

EXHIBIT P12             A TRUE COPY OF THE LEGAL OPINION.

EXHIBIT P13             A TRUE COPY OF THE JUDGMENT DATED
                        14/11/2017 IN WPC NO. 27655/2015.

EXHIBIT P14             A TRUE COPY OF THE ORDER DATED
                        20/1/2018 OF THE 2ND RESPONDENT.
 W.P.(C).No.32287/2019


EXHIBIT P15             A TRUE COPY OF THE JUDGMENT DATED
                        9/3/2018.

EXHIBIT P16             A TRUE COPY OF THE ORDER DATED 4/5/2018
                        OF THE 2ND RESPONDENT.

EXHIBIT P17             A TRUE COPY OF THE JUDGMENT DATED
                        19/2/2019 IN WPC NO. 19016/2018.

EXHIBIT P18             TRUE COPY OF THE REVIEW PETITION.

EXHIBIT P19             TRUE COPY OF THE ORDER DATED 4/4/2019
                        IN THE RP.

EXHIBIT P20             TRUE COPY OF THE ORDER DATED 20/6/2019.

EXHIBIT P21             A TRUE COPY OF THE NOTICE DATED
                        1/1/2019 ISSUED BY THE ENQUIRY OFFICER.
                               True copy

                                                        PS to Judge