Kerala High Court

Vijaya Surya vs Kerala State Electricity Board on 26 October, 2023

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE AMIT RAWAL
    THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                         WP(C) NO. 8275 OF 2015
PETITIONER/S:

          VIJAYA SURYA
          ASSISTANT EXECUTIVE ENGINEER, SUB LOAD DISPATCH CENTRE
          SYSTEM OPERATION CIRCLE, KERALA STATE ELECTRICITY
          BOARD, THIRUVANANTHAPURAM-695 004, RESIDING AT
          VAISHNAVAM, HOUSE NO.33, ESWARAN THAMPI NAGAR, NEAR
          ST.THOMAS SCHOOL, MUKKOLA, KALLAYAM P.O.,
          THIRUVANANTHAPURAM-695 043.

          BY ADVS.
          SRI.P.SANKARANKUTTY NAIR
          SRI.K.SANDESH RAJA



RESPONDENT/S:
     1     KERALA STATE ELECTRICITY BOARD
           REPRESENTED BY CHAIRMAN & MANAGING DIRECTOR, VYDYUTHI
           BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 001.

    2     THE CHIEF ENGINEER HRM
          VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.

    3     THE DEPUTY CHIEF ENGINEER HRM
          VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004

          THE DEPUTY CHIEF ENGINEER (SYSTEM OPERATION CIRCLE),
    4     VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004

          BY ADV SMT.A.G.ANEETHA


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 8275 OF 2015
                                         2

                               JUDGMENT

Petitioner has approached this Court seeking the following

reliefs:

i. Issue a writ of certiorari or other writ, direction or order setting aside Exhibit P3, P5, P7, P9, P11 and P14 order of the 1 st respondent and to grant all consequential monetary benefits.

ii. Issue a writ of mandamus or appropriate writ or direction directing writ the respondents to grant interest at the rate of 12% per annum for the period of delay in crediting the arrears of Dearness Allowance to the G.P.F Account

iii Issue a writ of mandamus to the respondents to fix the granting of increment date as April of every year from 2010 and to pay the consequential monetary benefits with 12% interest

iv Issue a writ of certiorari or other appropriate writ or direction to quash exhibit P14 order of the respondents and to grant the consequential monetary benefits

2. The facts leading to filing of the present writ petition with

the aforementioned claim, in brief are, petitioner while working as

Assistant Executive Engineer at Sub LD Centre, System Operation

Circle, Thiruvananthapuram, was on 19.3.2013 issued a memo on the

allegations of corrections and over writing in the duty register,

Ext.P1. Reply to the aforementioned memo, dated 15.4.2013, Ext.P2

was submitted. Without considering the aforementioned reply a

charge sheet dated 23.5.2013, Ext.P3 was served upon the petitioner

by Deputy Chief Engineer in Charge regarding the interpolation in

the attendance register and other allegations. Reply to the WP(C) NO. 8275 OF 2015

aforementioned charge sheet was submitted vide Ext.P4 denying all

the allegations much less the power of the Deputy Chief Engineer in

Charge. A show cause notice dated 22.7.2013, Ext.P5 was issued by

the Chief Engineer in Charge withholding of two increments with

cumulative effects be imposed. Petitioner submitted a reply Ext.P6

dated 1.8.2013 denying all the allegations but vide order dated

29.3.2014 Ext.P7 two increments without cumulative effects for a

period of two years were imposed. Appeal preferred, resulted into

reduction of one increment and review petition was also dismissed.

3. Learned counsel appearing on behalf of the petitioner

submitted that once the respondent department had decided to

impose a major punishment of withholding of two increments with

cumulative effect, it was sine qua non for holding an enquiry. In

other words, the enquiry for imposition of a lesser punishment could

not have been dispensed with. Therefore the impugned order

Exts.P7, P9 as well as Ext.P11 are liable to be dismissed much less

petitioner is also entitled to interest on the delayed payment of DA

for the period referred to above ie., July 2009 to November 2009

credited in the account of the EPF on September 2013 and has given

a claim with regard to recovery of the Rs.6,511/- vide Ext.P14 dated

20.3.2012.

4. On the other hand, learned counsel appearing on behalf of WP(C) NO. 8275 OF 2015

the contesting respondent do not deny that the punishment intended

to be imposed vide show cause notice was major ie., withholding of

two increments with cumulative effect. Enquiry was required to be

conducted but finding the reply of the petitioner, the department

proposed to issue a lesser punishment; it is in that background,

enquiry was dispensed with. That cannot be a ground for setting

aside all the proceedings including imposition of punishment and

reduction thereof.

5. It was further contended that the petitioner has failed to

place on record any material to show that DA in GPF account was

credited only in September 2013 for the period July 2009 to

November 2009. In fact there was a delay but not intentional. It

was credited after few months. In the absence of any quantified

period, respondents cannot be burdened with any interest.

6. I have heard the learned counsel for the parties and

appraised the paper book. The facts regarding the issuance of the

charge sheet alleging dereliction of duty regarding interpolation of

the register are not in dispute. It is worthwhile to extract the

contents of the show cause notice dated 22.7.2013, Ext.P5.

Sub: Allegations against Shri. Vijaya Surya, Assistant Executive Engineer, Sub Load Despatch Centre, System Operation Circle, Thiruvananthapuram-Disciplinary action initiated- Show-Cause Notice issued

Ref. (1) Letter No. SOC/TVM/GB/2013-14/64 dated 19.04.2013 of WP(C) NO. 8275 OF 2015

the Deputy Chief Engineer, System Operation Circle. Thiruvananthapuram

(2) This Office Memo of Charges of even no dated 23.05.2013.

(3) Letter dated 03.06.2010 of Shri Vijaya Surya, Assistant Executive Engineer

That you. Shri. Vijaya Surya, while working as Assistant Executive Engineer at Sub Load Despatch Centre, System Operation Circle Thiruvananthapuram was alleged to have committed certain irregularities and were charge-sheeted vide reference cited 2 on following charges

i Manipulated Office records and Attendance Register.

ii. Has attended duty without recording your movement at Biometric Punching Systern on several days and thereby disobeyed the Orders of the Board.

iii.

iii. Has recorded the commencement of duty time in Operator's Diary much in advance than that recorded in Biometric Punching Machine

iv. Committed grave misconduct and dereliction of duty

Though the Memo of Charges along with Statement of Allegations was received by you on 01.06.2013, you have failed to submit any explanation to the charges alleged against you. Instead of giving reply to the Memo of Charges, you have criticized the functions of the Chief Engineer (H.R.M) and thereby has again violated the Code of Conduct. It is presumed that you have accepted the charges by not submitting any explanation to the charges leveled against you.

Therefore, the undersigned is hereby proposing a punishment of barring your next two increments with cumulative effect. You are required to show cause why the said punishment should not be imposed upon you. Your explanation, if any, in this regard should reach this Office within 15 days on receipt of this Notice, failing which the punishment will be confirmed on the presumption that you have no explanation to offer.

7. On perusal of the same, it is evident that the department

had intended to propose a punishment barring next two increments WP(C) NO. 8275 OF 2015

with cumulative effect. Such an imputation is a contemplation of

major punishment, for, imposing a major punishment, department

was mandatorily required to follow the rules by holding an enquiry

by appointing an enquiry officer and to prove on record the

allegations contained in the show cause notice vide oral and

documentary evidence. No such effort has been made. Such

procedure has been totally bypassed. Appeal preferred though had

resulted into reduction of one increment without cumulative effect;

lesser punishment with an intention of major punishment cannot bail

out the respondent from holding the enquiry. In this view of the

matter, the impugned orders Ext.P7, P9 and Ext.P11 passed in

review upholding the punishment of withholding of one increment

without cumulative effect are not sustainable in the eyes law and

quashed. Both the parties have not been able to place on record any

concrete material or evidence that the amount of DA for the period

July 2009 to November 2009 ie., 10,500/- credited September 2013

but on looking at the averments in paragraph 9 of the counter

extracted herein below, it is evident that there was delay. Whatever

the delay was, which will be notified to the petitioner and the

petitioner shall be entitled to an interest thereon @ 6% per annum.

9. With respect to the averments in paragraph 3 of the writ petition, it is submitted that, Sri. Vijay Surya, Asst. Executive Engineer joined the office of System Operation Circle, Vaidyuthi Bhavanam, Thiruvananthapuram, for duty on 01.01.2010 FN. WP(C) NO. 8275 OF 2015

Prior to this, he was working at Electrical Division, Kasaragod. The arrear DA during the period from 07/09 to 11/09 has been credited to his GPF account within the time limit as soon as his pay extract, a mandatory document, was received in the office. There was no intentional delay in processing and crediting the above said DA arrears. Therefore the interest claimed by the petitioner is not sustainable.

Writ petition stands allowed in the aforementioned manner.

The benefits, which has been withheld are entitled to be credited in

the account of the petitioner within a period of one month from the

date of receipt of a certified copy of the judgment along with all

consequential benefits, if any.

Sd/-

sab                                             AMIT RAWAL
                                                  JUDGE
 WP(C) NO. 8275 OF 2015


                  APPENDIX OF WP(C) 8275/2015

PETITIONER EXHIBITS

EXHIBIT-P1-TRUE COPY OF THE MEMO NO.GB/DA- 6/13-14/400 DATED 19.3.2013.

EXHIBIT-P2-TRUE COPY OF THE REPLY DATED 15.4.2013.

EXHIBIT-P3-TRUE COPY OF THE CHARGE MEMO NO.EBVS.6/39/2013 DATED 23.5.2013 AND ALONG WITH STATEMENT SERVED ON 1.6.2013.

EXHIBIT-P4-TRUE COPY OF THE REPLY DATED 3.6.2013.

EXHIBIT-P5-TRUE COPY OF THE SHOW CAUSE NOTICE NO.EBVS.6/39/2013 DATED 22.7.2013.

EXHIBIT-P6-TRUE COPY OF THE REPRESENTATION DATED 1.8.2013.

EXHIBIT-P7-TRUE COPY OPF THE ORDER NO.EBVS.6/39/2013/264 DATED 29.3.2014 IMPOSING PUNISHMENT TO THE PETITIONER

EXHIBIT-P8-TRUE COPY OF THE APPEAL PETITION DATED 16.4.2014.

EXHIBIT-P9-TRUE COPY OF THE ORDER NO.VIG/BIV 3146/2011/1580 DATED 19.6.2014

EXHIBIT-P10-TRUE COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT

EXHIBIT-P11-TRUE COPY OF THE ORDER NO.17/2015/VIG/BIV/3146/2011 DATED 6.1.2015 GIVEN UNDER RIGHT INFORMATION ACT TO THE PETITIONER'S WIFE.

EXT.P12- COPY OF THE APPEAL PETITION DATED 19.9.2014.