Vijayan.G vs Kerala State Electricity Board ...
2021 Latest Caselaw 15688 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                     PRESENT

                  THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

              FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943

                             WP(C) NO. 17484 OF 2014

PETITIONER:

               VIJAYAN.G.
               OTTUVAZHICKAL HOUSE, KADANAD P.O., PALA, KOTTAYAM DISTRICT,
               (RETIRED ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD,
               110KV SUB STATION, PALA)

               BY ADVS.
               DR.K.P.SATHEESAN (SR.)
               SRI.ANOOP.V.NAIR
               SRI.M.R.JAYAPRASAD
               SRI.P.MOHANDAS ERNAKULAM
               SRI.SIDDHARTH KRISHNAN
               SRI.S.VIBHEESHANAN



RESPONDENTS:

     1         KERALA STATE ELECTRICITY BOARD LTD.
               REPRESENTED BY THE CHAIRMAN AND MANAGING DIRECTOR, VYDYTHI
               BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.

     2         THE CHIEF ENGINEER (H.R.M)
               KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN, PATTOM,
               THIRUVANANTHAPURAM - 695 004.

     3         THE DEPUTY CHIEF ENGINEER
               KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL CIRCLE,
               ALAPPUZHA - 688 001.

               BY ADV SRI.K.S.ANIL, SC




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.07.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17484 OF 2014

                                     2




                                JUDGMENT

While the petitioner was working as an Assistant Engineer in

the services of 'Kerala State Electricity Board' (KSEB), he was

issued with Ext.P1 Memo of Charges, alleging that he had failed to

detect an 'erroneous connection' in respect of a consumer, under

the electrical section, Kidangara; and thereby caused monetary

loss to the Board.

2. The petitioner transpires to have answered the Memo of

Charges through Ext.P2, stating that he was not responsible for

any such misconduct and thus, praying that he be not proceeded

against.

3. However, the KSEB initiated a disciplinary enquiry

against him, which led to Ext.P4 report of the enquiry officer dated

10.12.2010, holding the petitioner not guilty of any of the charges,

finding that the error in the connection in question must have

happened after August 2004 and therefore, that the officials at the

time of installation of the new meter on 08.01.2001, cannot be

held responsible for the same.

4. The petitioner having been so exonerated, was

thereafter, issued with Ext.P5 order of the Disciplinary Authority,

namely, the Chief Engineer, (HRM) on 08.06.2012, notifying him WP(C) NO. 17484 OF 2014

that said Authority had disagreed with the views of the Enquiry

Authority, thus imposing a punishment of Rs.1,02,035/-, along with

interest thereon, to be recovered from his DCRG/pensionary

benefits. The petitioner asserts that Ext.P5 was issued without any

notice to him, but directing to show cause why the afore said

amount be not recovered from him, and that he, therefore,

preferred Ext.P6 reply to it. He alleges that without assessing any

of the contentions therein, Ext.P8 order was issued confirming

Ext.P5 and consequently, that he approached the competent

Appellate Authority, through an appeal, which was also, however,

dismissed through Ext.P10.

5. The petitioner, therefore, prays that Exts.P5, P8 and P10

be set aside and the KSEB be directed to disburse to him the

amount of Rs.1,13,508/-, which has been now withheld from his

retiral benefits, with interest.

6. I have heard Sri.Sudhin Kumar, learned counsel for the

petitioner and Sri.M.K.Thankappan, learned Standing Counsel

appearing for the KSEB.

7. Sri.M.K.Thankappan, countered the afore submissions

made on behalf of the petitioner, by arguing that Ext.P5 notice

was issued to the petitioner informing that the Disciplinary WP(C) NO. 17484 OF 2014

Authority had disagreed with the findings of the Enquiry Officer.

He added that, through the same, petitioner was asked to show

cause why an amount of Rs.1,02,035/-, along with interest, be not

recovered from him; and that based on the petitioner's explanation,

namely Ext.P6, Ext.P8 order was issued by the said Authority,

confirming the said proposal. He submitted that, as is evident from

Ext.P8, the case of the petitioner was thoroughly considered, but it

was found that he had committed supervisory lapses, in having

failed to detect the 'erroneous connection' of a particular

consumer, thereby, causing huge monetary loss to the Board. He,

thereafter, submitted that Ext.P10 order of the Chairman and

Managing Director of the KSEB was also issued after considering

all relevant aspects; and therefore, prayed that this writ petition

be dismissed.

8. When I consider the afore submissions and the materials

available on the records of this case, it is evident that the Enquiry

Authority found the petitioner to be not guilty at all. In fact, said

Authority has also, in Ext.P4 report referred to the evidence of

DW2 - a certain Sri.M.S.Xavier, to hold that the "malpractices in

the electric meter" in question must have happened between

December 2006 and August 2007; thus concluding that "error in WP(C) NO. 17484 OF 2014

potential connection might have happened only after 08-04". (sic).

9. It is also relevant that the Enquiry Officer has recorded

that the consumer was "prone to violation of Rules" and that

"silence regarding proper sealing of metre in the site mahazar

prepared on 04.09.2007 assumes added significance" (sic).

10. As I have said above, the Enquiry Officer, thereafter,

proceeded to honourably exonerate the petitioner, without any

liability.

11. However, the Disciplinary Authority then issued Ext.P5

proceedings, wherein, he recorded that "undersigned decided to

disagree with the findings of the enquiry officer" (sic) and

consequently that the "undersigned decided to apportion the

liability of Rs.6,61,683/- [Rs.12,49,854 (total liability) -

Rs.5,88,171/- (bill issued to the consumer)] in such a way that 25%

of the liability to be realized from the Assistant Engineer who

supervised the meter change on 08.01.2001 and balance 75% of

liability from all the officials responsible for the under-recording,

divided according to the period they dealt the consumer. (sic)

12. However, what is important at this juncture is that the

Disciplinary Authority did not issue any notice to the petitioner

before he proposed the punishment; but Ext.P5 was a post- WP(C) NO. 17484 OF 2014

decisional one, notifying him to show cause why the amounts

proposed be not recovered from him.

13. It is now well established in the annals of Administrative

Law that when the Disciplinary Authority decides to disagree with

the findings of the Enquiry Officer, the delinquent will have to be

specifically notified before a decision detrimental to him is taken.

14. However, in the case at hand, what has been done is

completely contrary, since the Disciplinary Authority took a

decision to the detriment of the petitioner and then asked him to

show cause why the amounts fixed be not recovered.

15. The records show that the petitioner, thereafter,

preferred Ext.P6 explanation to Ext.P5; but that the Disciplinary

Authority again reiterated what he stated in Ext.P5, through

Ext.P8, holding that petitioner is liable to repay the amounts as

proposed by him.

16. Pertinently, Ext.P8 makes it absolutely clear that what

was decided by the Disciplinary Authority consequent to Ext.P6

explanation was only as to whether punishment was required to be

imposed against the petitioner; rendering it limpid that his

decision regarding the guilt of the petitioner had been finalized

earlier.

WP(C) NO. 17484 OF 2014

17. That said, when the petitioner preferred statutory

appeal against the order of the Disciplinary Authority, it has been

rejected through Ext.P10, merely saying that, on a perusal of the

appeal petition and connected files, it has been found that the

petitioner is liable for the loss and that same has been fixed based

on the report of his Controlling Officer, which had been informed

to him by the Disciplinary Authority before finalizing his case.

18. As I have said above, Ext.P5 cannot find favour in law

because it is a post-decisional notice, after having found the

petitioner guilty of the charges - with the Disciplinary Authority

disagreeing with the Enquiry Authority. The said notice did not ask

the petitioner to show cause why the findings of the Enquiry

Officer be not disagreed with by the Disciplinary Authority, but

only to show cause why the amounts fixed as penalty be not

recovered from him.

19. At this time, it must also be borne in mind that the

Disciplinary Authority appears to have been guided by the fact that

large amounts of money had been lost to the Board on account of

the erroneous consumption record of a consumer, to an extent of

Rs.5,88,171/-.

20. However, it is conceded before me that the consumer WP(C) NO. 17484 OF 2014

had approached this Court by filing W.P.(C)No.26581/2009, in

which, certain amounts were directed to be paid as a condition for

obtaining interim order, which he did. It is further stated that said

writ petition was dismissed, through judgment dated 04.03.2014,

and consequently that said consumer became fully liable for the

amounts.

21. This being so, I fail to understand how the petitioner can

be held responsible for any loss to the KSEB; and, in any event of

the matter, the amount of Rs.5,88,171/- shown in Ext.P5 cannot be

now fastened on him because, admittedly, the consumer had

remitted some portion of it as per the interim direction of this

Court in W.P.(C)No.26581/2009 and may have paid off the balance

subsequent to the dismissal of the writ petition.

22. I, however, see that none of these aspects have been

considered in its proper perspective by the Appellate Authority, but

he has merely proceeded to grant imprimatur to Ext.P8 order of

the Disciplinary Authority, perhaps being guided by the fact that at

that time also, the consumer had not remitted the amounts noticed

to have been lost to the KSEB.

23. I am resultantly, of the firm view that the Appellate

Authority must reconsider the entire matter, particularly the WP(C) NO. 17484 OF 2014

contention of the petitioner that Ext.P5 has been issued without

any notice to him with respect to the finding of guilt by the

Disciplinary Authority and that no loss has now been caused to the

KSEB, consequent to the fact that W.P.(C)No.26581/2009 had been

dismissed.

In summation, this writ petition is allowed and Ext.P10 is set

aside; with a consequential direction to the Chairman and

Managing Director of the KSEB to reconsider the appeal preferred

by the petitioner, adverting to my observations above and taking

into account the recovery made from the consumer in question

consequent to the dismissal of W.P.(C)No.26581/2009, thus leading

to an appropriate order thereon and also after affording an

opportunity of being heard to the petitioner, as expeditiously as is

possible but not later than than three months from the date of

receipt of a copy of this judgment.

I make it clear that while the afore exercise is completed, the

Appellate Authority will consider each of the contentions of the

petitioner, including that he was not in charge of the Section,

while tampering of the meter happened; and will also specifically

assess the findings of the Enquiry Officer in the context of the

petitioner's assertions that he cannot be held responsible on WP(C) NO. 17484 OF 2014

account of the fact that tampering or error in the meter was found

to have happened after he left the office concerned.

At this time, Sri.Sudhin Kumar pointed out that, in Ext.P7, the

Electricity Ombudsman has recorded the statement of the KSEB

that in normal circumstances, their staff like Sub Engineers, Meter

Readers or Field Officers, who visit the premises of the consumer

could not have found out such abnormalities, since the seals of the

meter box were found intact. Certainly, this will also be kept in

mind by the Appellate Authority, while the afore directed exercise

is completed.

The above being so ordered, it goes without saying that,

depending upon the decision to be taken by the Appellate Authority

in terms of my directions above, the petitioner's balance retiral

benefits shall be paid to him, without any avoidable delay, but not

later than two months thereafter; failing which, it will carry

interest @ 8% per annum, from the date on which it became due

until it is actually paid.

This writ petition is thus ordered.

Sd/-

DEVAN RAMACHANDRAN JUDGE rp WP(C) NO. 17484 OF 2014

APPENDIX OF WP(C) 17484/2014

PETITIONER EXHIBITS

EXHIBIT P1 : TRUE COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS GIVEN TO THE PETITIONER ON 04.02.2008

EXHIBIT P2 : TRUE COPY OF THE WRITTEN STATMENT OF DEFENCE FILED BY THE PETITINER BEFORE THE 3RD RESPONDENT DATED 13.05.2008

EXHIBIT P3 : TRUE COPY OF THE ORDER NO.EB3/DIS. ACTION/KIDANGARA/2007- 08/2298 DATED 17.10.2008 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P4 : TRUE COPY OF THE ENQUIRY REPORT FILED BY THE ENQUIRY OFFICER DATED 10.12.2010

EXHIBIT P5 : TRUE COPY OF THE NOTICE NO.EBVS.4/7/2011/445 DATED 08.06.2012 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P6 : TRUE COPY OF THE REPLY FILED BY THE PETITIONER DATED 18.07.2012

EXHIBIT P7 : TRUE COPY OF THE ORDER OF THE STATE ELECTRICITY OMBUDSMAN IN REPRESENTATION NO P 45/09 DATED 27.07.2009

EXHIBIT P8 : TRUE COPY OF THE ORDER NO.EBVS/4/7/2011/612 DATED 07.8.2012 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P9 : TRUE COPY OF THE ORDER NO PA V/PPO/39463/705 DATED 22.03.2014 ISSUED BY THE 2ND RESPONDENT

EXHIBIT P10 : TRUE COPY OF THE ORDER NO.VIG./BIII/7478/2007/1421 DATED 10.06.2014 ISSUED BY THE FIRST RESPONDENT