Babujan vs The Kerala State Electricity ...
2021 Latest Caselaw 7182 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                       WP(C).No.8072 OF 2012(H)


PETITIONER:

               BABUJAN, AGED 40, S/O.SULAIMAN,
               CHIRAYUDTHEKETHIL HOUSE, SOORANAD
               NORTH P.O., KOLLAM DISTRICT, NOW WORKING AS
               ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB
               DIVISION, PONKUNNAM, KOTTAYAM DISTRICT.

               BY ADVS. SRI.G.SREEKUMAR (CHELUR)
               SRI.K.DILIP
               SRI.K.RAVI (PARIYARATH)

RESPONDENTS:

      1        THE KERALA STATE ELECTRICITY BOARD REP. BY
               ITS SECRETARY, VYDHUTHI BHAVANAM, PATTOM,
               THIRUVANANTHAPURAM, PIN 695001.

      2        THE DEPUTY CHIEF ENGINEER
               ELECTRICAL CIRCLE, KOTTAYAM-686001.

      3        THE CHIEF ENGINEER, H.R.M., KERALA STATE
               ELECTRICITY BOARD, VYDHUDHI BHAVANAM,
               PATTOM, THIRUVANANTHAPURAM-695001.

               BY ADV. SRI.M.K.THANKAPPAN

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 8072/12                          2




                                JUDGMENT

Dated this the 2nd day of March 2021

The petitioner, who is stated to have been working as an

Assistant Executive Engineer at the time when this writ petition was

filed, has approached this Court impugning Exhibit P12 order of the

Chief Engineer (HRM) of the Kerala State Electricity Board (KSEB),

as per which, he has been imposed with the punishment of barring of

one increment, based on certain allegations stated to have been

proved against him.

2. The petitioner says that even though he was charge

sheeted by the KSEB and disciplinary action initiated against him, the

Enquiry Officer found in his favour, but that the Disciplinary

Authority, namely the Chief Engineer (HRM), held otherwise and

issued Exhibit P12, proposing punishment, notwithstanding the

findings of the Enquiry Officer. The petitioner asserts that Exhibit P12

is illegal for various reasons, but primarily because it has been issued

in violation of Exhibit P13 Regulations relating to the employees of

the KSEB.

3. The learned counsel for the petitioner expatiated the

contention of the petitioner regarding violation of Exhibit P13

Regulations by saying that, as is clear from clause 21 thereof, if the

Disciplinary Authority decides to differ from the findings of the

Enquiry Officer, he ought to have given the petitioner an opportunity

of being heard at that stage and ought to have thereafter recorded

the reasons for differing so, and then should have forwarded the

same, along with a copy of the Enquiry Report asking him to show

cause why a punishment be not imposed against him. He further

submitted that even though the second limb of clause 21 is seen to

have been complied with by the Disciplinary Authority in Exhibit P12,

the first limb has been blatantly violated and he has recorded therein

that he differs from the findings of the Enquiry Officer even without

giving the petitioner an opportunity of being heard. He, therefore,

prayed that Exhibit P12 be set aside.

4. In response, the learned Standing Counsel for the KSEB

submitted that Exhibit P12 is irreproachable since the Disciplinary

Authority has given all necessary opportunity to the petitioner to

show cause why a punishment be not imposed on him. He submitted

that, in any event of the matter, the Disciplinary Authority had

imposed only a punishment of barring of one increment and therefore,

that the petitioner cannot have any further grievance and thus prayed

that this writ petition be dismissed.

5. When I examine Exhibit P12 impugned order, it is clear

that the even though the Enquiry Officer did not find the charges

against the petitioner to be proved, the Disciplinary Authority thought

otherwise and issued a notice, asking him to show cause why the

punishment of barring of one increment with cumulative effect need

not be imposed upon him. The petitioner also appears to have been

given an opportunity of being heard at this stage, finally culminated

in Exhibit P12 being issued, whereby the punishment was so imposed.

6. However, what is important in this case is that, as per the

provisions of Exhibit P13 Regulations, the petitioner required to have

been granted an opportunity of being heard, not merely with respect

to imposition of punishment but also at the stage where the

Disciplinary Authority decided to disagree with the findings of the

Enquiry Officer. This is manifest from clause 21 thereof, which reads

as under:

"Where the authority initiating disciplinary proceedings does not agree with any of the findings arrived at by the Enquiry officer he shall after giving an opportunity to the accused employee to be heard, record his own findings in respect of those charges giving his reasons therefore. He shall then provisionally decide upon the punishment to be imposed in respect of charges which according to him have been proved. After such decision, he shall forward to the accused employee a copy of the report of the Enquiry Officer together with a copy of the reasons recorded by him for differing from the conclusions arrived at by the Enquiry Officer and calling upon him to show cause within a definite period ordinarily not exceeding 15 days why the proposed punishment should not be inflicted on him."

7. The materials on record, as also the contents of Exhibit

P12, limpidly show that, though a notice was issued to the petitioner

asking him to show cause why the proposed punishment be not

imposed, there was no such procedure followed nor was the

petitioner heard at the time when the Disciplinary Authority decided

to differ from the views of the Enquiry Officer. Since clause 21 of

Exhibit P13 Regulations extracted makes it mandatory on the

Disciplinary Authority to have done so, I cannot find favour with

Exhibit P12 and am certain that the matter requires to be

reconsidered by the competent authority.

8. Presumably being alerted by the views of this Court as

afore, the learned Standing Counsel for the KSEB submitted that a

further opportunity be given to the Disciplinary Authority to

reconsider the matter following due procedure.

In the afore circumstances, but without entering into the

merits of any of the rival contentions of the parties, I order this writ

petition and set aside Exhibit P12, with a resultant direction to the

third respondent to reconsider the matter and take further action

against the petitioner, only after expressly following the mandate of

clause 21 of Exhibit P13 Regulations and after affording necessary

opportunity of being heard to him.

Sd/-

Devan Ramachandran, Judge tkv

APPENDIX PETITIONER'S EXHIBITS:

EXT. P1 A TRUE COPY OF STATEMENT OF ALLEGATIONS SERVED ON THE PETITIONER DATED NIL

EXT. P2 A TRUE COPY OF THE MEMO OF CHARGES SERVED DATED 11.07.2007

EXT. P3 A TRUE COPY OF THE REPLY GIVEN TO EXT. P2 BY THE PETITIONER DATED 29.10.2007

EXT. P4 A TRUE COPY OF THE ANONYMOUS LETTER DATED 10.09.2005

EXT. P5 A TRUE COPY OF THE VIGILANCE ENQUIRY REPORT DATED NIL IN THE CASE OF THE PETITIONER

EXT. P6 A TRUE COPY OF THE ORDER DATED 24.02.2010

EXT. P7 A TRUE COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT DATED 30.10.2010

EXT. P8 A TRUE COPY OF THE ENQUIRY REPORT DATED NIL BY THE ENQUIRY OFFICER

EXT. P9 A TRUE COPY OF THE SHOW CAUSE NOTICE SERVED ON THE PETITIONER DATED 07.12.2011

EXT. P10 A TRUE COPY OF THE REPLY SUBMITTED BY THE PETITIONER TO EXT. P9 DATED 22.12.2011

EXT. P11 A TRUE COPY OF THE JUDGMENT IN WPC 683/2012 DATED 10.01.2012 OF THIS HON'BLE COURT

EXT. P12 A TRUE COPY OF THE ORDER PASSED BY THE THIRD RESPONDENT DATED 13.03.2012

EXT. P13 A TRUE COPY OF THE KERALA STATE ELECTRICITY BOARD EMPLOYEES DISCIPLINARY PROCEEDINGS (CONDUCT OF ENQUIRY) REGULATIONS, 1974