Kerala High Court

V.B.Manoj vs The Chairman/Managing Director on 2 May, 2023

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945
                WP(C) NO. 20672 OF 2019
PETITIONER:

         V.B.MANOJ,
         AGED 43 YEARS
         SUB ENGINEER (SYSTEM SUPERVISOR),
         KERALA STATE ELECTRICITY BOARD LTD.,
         ELECTRICAL DIVISION, KUNNAMKULAM,
         THRISSUR DISTRICT-680517.
         PRESENTLY RESIDING AT VENNAMGOTT VEEDU,
         PUTHENPALLI DESAM, IRINGAPURAM VILLAGE,
         THRISSUR, KERALA-680103.

         BY ADV T.SANJAY
RESPONDENTS:
    1    THE CHAIRMAN & MANAGING DIRECTOR,
         KERALA STATE ELECTRICITY BOARD LIMITED,
         VYDYUTHI BHAVANAM, PATTOM,
         THIRUVANANTHAPURAM, KERALA - 695004.

   2    THE CHIEF ENGINEER (DISTRIBUTION CENTRAL),
        KERALA STATE ELECTRICITY BOARD LIMITED,
        D.H. ROAD, ERNAKULAM, KERALA-682016.

   3    DEPUTY CHIEF ENGINEER,
        KERALA STATE ELECTRICITY BOARD LIMITED,
        ELECTRICAL CIRCLE,
        THRISSUR,KERALA-680004.

   4    EXECUTIVE ENGINEER,
        KERALA STATE ELECTRICITY BOARD LIMITED,
        ELECTRICAL DIVISION, KUNNAMKULAM,
        THRISSUR, KERALA-680517.

         BY ADV. B.PREMOD, STANDING COUNSEL

     THIS WRIT PETITION (CIVIL) HAVING COME UP       FOR
ADMISSION ON 02.05.2023, THE COURT ON THE SAME       DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.20672/2019
                                        :2:




                            N. NAGARESH, J.

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                       W.P.(C) No.20672 of 2019

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                  Dated this the 2nd day of May, 2023


                             JUDGMENT

~~~~~~~~~

The petitioner while working as Sub Engineer

(System Supervisor) at Kunnamkulam Electrical Section was

proceeded against departmentally and was finally awarded a

punishment of reduction of one increment with cumulative

effect. In this writ petition, the petitioner seeks to quash

Ext.P2 memo of charges, Ext.P5 show-cause notice, Ext.P7

order imposing penalty and all other consequential orders

passed by the respondents.

2. The petitioner states that while working as Sub

Engineer on 27.02.2011 (Sunday) as directed by the

Assistant Engineer, a contractor commenced work of fitting

new street lights. Since it was a Sunday, only a few staff W.P.(C) No.20672/2019

members were deployed for duty. The petitioner detached

power supply to the area in order to facilitate installation of

street lights. The petitioner supervised the work till lunch

break. The petitioner returned to his office for lunch,

instructing the Contractor that work should be resumed only

after his arrival at the Site.

3. The petitioner states that he had to attend an

emergency breakdown work in the afternoon to provide

uninterrupted power supply to certain localities, as Pulse

Polio Vaccine was stored in many Primary Health Centres in

the area. When the petitioner was attending emergency

breakdown maintenance work, he received information that a

fatal accident occurred at street light fitting Site and a

contract worker was electrocuted and another wounded. The

petitioner would submit that the Contractor resumed the work

without following the instructions of the petitioner.

4. However, the petitioner was placed under

suspension on 28.02.2011 as per Ext.P1 order. Ext.P2

Memo of Charges dated 09.03.2011 was served on the W.P.(C) No.20672/2019

petitioner. The petitioner submitted detailed reply denying

the charges in toto. But, departmental enquiry was

conducted. Ext.P4 Enquiry Report concluded that there was

no negligence on the part of the petitioner in causing death

of the contract worker. The 4th respondent, however, issued

Ext.P5 show-cause notice. Without considering Ext.P6

representation of the petitioner, the 4 th respondent issued

Ext.P7 order imposing the punishment of withholding of two

annual increments of the petitioner with cumulative effect.

Ext.P8 appeal submitted by the petitioner was disposed of as

per Ext.P9 order, reducing the punishment awarded to the

petitioner to withholding of one increment with cumulative

effect. Ext.P10 appeal preferred by the petitioner against

Ext.P9 was dismissed. Though the petitioner approached

the 1st respondent with Ext.P12 review petition, the said

petition was also dismissed.

5. The petitioner states that in the criminal case filed

in connection with the electrocution, the petitioner was

acquitted of charges. The petitioner would submit that the W.P.(C) No.20672/2019

electrocution occurred because the Contractor neglected

safety instructions and resumed work in the absence of the

petitioner. The 4th respondent omitted to note the fact that

there was shortage of staff which contributed to the incident.

The Enquiry Officer found that the 4th charge as to "failure to

switch off power supply and thereby causing death of a

person" was not proved. Contrary to the said finding, the 4 th

respondent imposed penalty on the petitioner. Exts.P2, P5

and P7 orders are therefore illegal and unsustainable and

are liable to be set aside, urged the petitioner.

6. Respondents 1 to 4 resisted the writ petition. The

Enquiry Officer found that majority of charges were proved in

the enquiry. Hence, a show-cause notice was issued. After

considering the petitioner's reply, a penalty of barring two

annual increments with cumulative effect was imposed on

the petitioner. In appeal, the Deputy Chief Engineer reduced

the punishment to barring of one increment with cumulative

effect.

W.P.(C) No.20672/2019

7. The respondents contended that acquittal of the

petitioner in criminal case was due to the failure of the

prosecution to prove the cause of death of the person due to

the rash and negligent act of the accused employee. In the

disciplinary proceedings, three charges were found proved.

8. Admittedly, there was failure on the part of the

petitioner in properly supervising the work. Safety

instructions were not taken note of. The writ petition filed by

the petitioner is therefore without any merit and it should be

dismissed, insisted the respondents.

9. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the

respondents.

10. The charges levelled against the petitioner in brief

are as follows:

1. Wilful negligence of work and habitual indiscipline causing loss of life.

2. Did not assign supervision of work to subordinates and wilful disobedience of Board Orders.

3. Submitting representation containing false information and statement.

W.P.(C) No.20672/2019

4. Failure to ensure switching off lines at the worksite and thereby resulting death of a worker.

5. Tarnished the image of the Board.

11. The Enquiry Officer found that charge No.1 could

not be established. The enquiry officer found that charge

No.2 is proved. On the basis of the statement given by the

AE, the Enquiry Officer found that charge No.3 is

established. The Enquiry Officer found charge No.4 as not

proved, whereas Charge No.5 was found to be proved. The

Disciplinary Authority, as per Ext.P7 order, concurred with

the findings of the Enquiry Officer and imposed a penalty of

barring of two annual increments with cumulative effect. In

the appeal preferred by the petitioner, the Deputy Chief

Engineer reduced the punishment into barring of one

increment cumulatively, as per Ext.P9. The further appeal

preferred by the petitioner was rejected by the Chief

Engineer by Ext.P11. The Board rejected the petitioner's

review petition as per Ext.P13.

W.P.(C) No.20672/2019

12. The findings of the Enquiry Officer is that the

following charges are proved against the petitioner.

2. Did not assign supervision of work to subordinates and wilful disobedience of Board Orders.

3. Submitting representation containing false information and statement.

5. Tarnished the image of the Board.

13. As regards assignment of supervision work to

subordinates, the specific case of the petitioner is that the

crucial day was a Sunday and there were only skeletal staff

strength on that day. It has come out in evidence in the

enquiry that apart from the petitioner, there were only three

Linemen and one Overseer available on duty. The evidence

would show that the AE required the petitioner to arrange the

work in question at 9 am on the day. The evidence would

further establish that the petitioner had switched off the line

in the morning and supervised the work till afternoon.

14. In the afternoon, the petitioner instructed the

Contractor not to resume work in the petitioner's absence. W.P.(C) No.20672/2019

The petitioner had to give such instruction as there was no

person available to assign the work. The petitioner had to

attend other emergency work in the afternoon. The Enquiry

Report would show that the staff of the Contractor started

work in the afternoon without waiting for the petitioner. The

Enquiry Report would also show that the only Overseer

available on duty had to be assigned telephone attending

duty. In the circumstances, the petitioner could not have

been blamed for non assignment supervision of work.

15. As regards charge No.3, the Enquiry Officer

proceeded to find the guilt of the petitioner for the reason that

a subordinate officer Sri.C.V. Shihab did not report for duty

till 9 am and came late, but the petitioner allowed him to sign

in the attendance register. When on a Sunday, there was

acute shortage of staff and there were large number of

repair/maintenance work demands coming from consumers,

any responsible officer who is in the position of the petitioner

would have permitted a late comer staff to sign the muster

and start the work.

W.P.(C) No.20672/2019

16. It is to be noted that the Enquiry Officer has

specifically found that the petitioner was not negligent in his

work and the loss of life cannot be attributed to the

petitioner's conduct. The Enquiry Officer found that the

petitioner had come to the worksite and had made necessary

arrangements for switching off lines in the morning. Facts

being so, the petitioner could not have been blamed for non

assignment of supervision work nor for permitting late

coming subordinate to muster his signature. In such

circumstances, the petitioner could not have been accused

of 'wilful' disobedience of the Board orders.

17. The manner in which the disciplinary authority and

both the appellate and review authorities dealt with the

disciplinary proceedings and appeal, is a matter of concern.

Though the petitioner was issued with copy of Enquiry Report

and was required to show-cause as per Ext.P5, Ext.P7

proceedings show that the contentions taken by the

petitioner in Ext.P6 reply to the show-cause notice were not

at all adverted to by the disciplinary authority. Assuming that W.P.(C) No.20672/2019

the disciplinary authority is not expected to give reasons for

its conclusions in a case where the disciplinary authority is

concurring with the findings of the Enquiry Officer, such

liberty is not available at appellate stage. The petitioner had

submitted Ext.P8 appeal before the 3 rd respondent-Deputy

Chief Engineer pointing out the circumstances under which

the electrocution occurred. The petitioner pointed out that

the Enquiry Officer and the disciplinary authority did not take

into account the policy of the Electricity Board to give priority

to breakdown works. The petitioner further pointed out that

the petitioner could not have entrusted supervisory duty to

anyone on 27.02.2011 (Sunday) in the absence of sufficient

staff. The 3rd respondent, however, passed Ext.P9 order

without considering and dealing with the grounds urged by

the petitioner.

18. The petitioner preferred a further Ext.P10 appeal

before the 2nd respondent. In the said appeal also, the

petitioner had urged the afore issues. The 2 nd respondent-

Chief Engineer also did not advert to those grounds while W.P.(C) No.20672/2019

rejecting the appeal confirming the punishment as per

Ext.P11.

19. The petitioner filed Ext.P12 memorandum of

review petition. Ext.P12 elaborately gave the facts and

grounds in a detailed manner. Though the arguments of the

petitioner was copied by the 1st respondent in Ext.P13 order,

the review petition was rejected simply stating that there are

no reasons for reconsidering the punishment imposed on the

petitioner. The orders in appeal and review are cryptic in

nature to such an extent that they in effect denied the

petitioner an opportunity to effectively defend the charges.

20. In the facts of the case, the petitioner is entitled to

succeed. Exts.P7, P9, P11 and P13 orders are set aside.

Writ petition is disposed of as above.

Sd/-

N. NAGARESH, JUDGE aks/18.04.2023 W.P.(C) No.20672/2019

PETITIONER'S EXHIBITS

EXHIBIT P1 TRUE COPY OF ORDER NO.GBI/FAT.ACC/10-

11/CKD/3064 DATED 28/01/2011.

EXHIBIT P2 TRUE COPY OF THE MEMO NO.GBI/FAT.ACC/10-

11/CKD/3178 DATED 09/03/2011.

EXHIBIT P3 TRUE COPY OF ORDER NO.GBI/DIS/CKD/SE/10-

11/3410 DATED 29/03/2011 OF THE 4TH RESPONDENT.

EXHIBIT P4 THE TRUE COPY OF THE ENQUIRY REPORT. EXHIBIT P5 THE TRUE COPY OF THE SHOW CAUSE NOTICE NO.

                GBI/ACCIDENTS/2011-12/3212              DATED
                04/02/2012.
EXHIBIT P6      THE TRUE COPY OF THE REPRESENTATION DATED
                22/02/2012.
EXHIBIT P7      THE   TRUE    COPY   OF   THE     ORDER   NO.
                GBI/ACCIDENT/2011-12/4188               DATED
                19/03/2012.
EXHIBIT P8      A TRUE COPY OF THE APPEAL DATED 08/04/2012
                PREFERRED BY THE PETITIONER.
EXHIBIT P9      THE TRUE COPY OF THE ORDER NO.GBI-
                381/DA/VB    MANOJ/FINAL    ORDER/13-14/2043
                DATED 13/11/2013.
EXHIBIT P10     THE TRUE COPY OF THE APPEAL PETITION DATED

23/12/2013 PREFERRED BY THE PETITIONER. EXHIBIT P11 THE TRUE COPY OF THE ORDER NO.

CE(DC)/GBI/DISCIPLINARY/APPEAL/2015-16/539 DATED 30/05/2015.

EXHIBIT P12 THE TRUE COPY OF THE REVIEW PETITION DATED 12/08/2015.

EXHIBIT P13     A TRUE COPY OF ORDER NO.VIG/A6/3129/2011
                DATED   06/05/2019   ISSUED    BY   THE   1ST
                RESPONDENT.
EXHIBIT P14     THE TRUE COPY OF THE JUDGMENT OF HON'BLE

JUDICIAL 1ST CLASS MAGISTRATE, CHAVAKKAD DATED 29/04/2015 IN CC NO.721/2011.