IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WP(C).No. 1085 of 2008(D) ------------------------------------- PETITIONER: ------------------- ISSAC VARGHESE, DEPUTY CHIEF ENGINEER, O/O THE CHIEF ENGINEER (GENERATION), KERALA STATE ELECTRICITY BOARD, MOOLAMATTOM. BY ADVS. MR.P.ALI, MR.A.MUHAMMED HASHIM. RESPONDENTS: ------------------------ 1. THE SECRETARY, KSEB, VYDHUTHI BHAVAN, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, KSEB, VYDHUDHI BHAVAN, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (HRM), VYDHUDHI BHAVAN, PATTAM PALACE P.O., THIRUVANANTHAPURAM. 4. THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, POWER HOUSE ROAD, ERNAKULAM. 5. THE CHIEF ENGINEER (DIST SOUTH), K.S.E.B., THIRUVANANTHAPURAM. R1 TO R5 BY MR. ASOK M.CHERIYAN, SC, KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.1085/2008-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION ALONGWITH THE LIST OF WITNESSES PROPOSED TO BE EXAMINED, DTD. 31/12/1998. EXT.P.2: COPY OF THE REPLY DTD. 21/01/1999. EXT.P.3: COPY OF THE FINAL ORDER OF THE R.3. DTD. 30/12/2003. EXT.P.4: COPY OF THE APPEAL DTD. 20/01/2004. EXT.P.5: COPY OF THE APPELLATE ORDER DTD. 11/09/2006. EXT.P.6: COPY OF THE REVIEW PETITION DTD. 05/10/06. EXT.P.7: COPY OF THE ORDER IN THE REVIEW PETITION DTD. 10/12/2007. EXT.P.8: COPY OF THE IS 1199 (9.3) TESTING OF SAMPLE. EXT.P.9: COPY OF THE LETTER OF THE IG (VIGILANCE) DT. 18/08/05. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. V.GIRI, J ------------------- W.P.(C).1085/2008 -------------------- Dated this the 25th day of March, 2009 JUDGMENT Petitioner is at present working as Chief Engineer in the Kerala State Electricity Board. He was issued Ext.P1 memo of charges on 31.12.1998, when he was working as Assistant Executive Engineer. The changes related to an alleged irregularity in the supervision of pole casting work held at Muvattupuzha from 8.2.1987 to 7.7.1987. 2. In the statement of allegations accompanying the memo of charges, it is stated that while the petitioner was working as Assistant Engineer in the Electricity Board, Major Section, Muvattupuzha, he was entrusted with the supervision of pole casting work from 8.2.1987 to 7.7.1987. The Assistant Engineer and the Assistant Executive Engineer were responsible for the proper casting of the work. As per drawing, 7 meter long R.C.C poles had to be cast. The total weight of the pole was 2556 Kgs., W.P.(C).1085/2008 2 for 7 meter long R.C.C. Poles and the weight of cement shall be 43 Kgs. It is further alleged that on an analysis report of cement contents samples undertaken by the Council of Scientific and Industrial Research, concreting was not proper that inadequate quantity of cement was actually used in casting the pole. It was further alleged that therefore, the Board has sustained a loss of Rs.31062/-. This allegation relating to the alleged supervisory lapse on the part of the Assistant Engineer and the Assistant Executive Engineer, relating to pole casting work undertaken from 8.2.1987 to 7.7.1987, was raised for the first time after a period of ten years. 3. Petitioner submitted a statement of defence, Ext.P2. He submitted a detailed reply with regard to the several aspects including what he called as irregularities in the collection of samples and W.P.(C).1085/2008 3 testing. He also alleged that testing and collection was not done by a correct method. 4. It should be noted at this juncture that Ext.P1 contemplated examination of seven witnesses to prove the charges alleged against the petitioner. It seems that the witnesses were not examined. It is also now admitted that no enquiry was conducted, though Ext.P1 proposed an enquiry. Nor was the petitioner heard on Ext.P2 explanation. But Ext.P3 order was passed by the Chief Engineer, finalising the disciplinary proceedings, directing recovery of an amount of Rs. 15,531/- from the petitioner. There was also a direction to bar his next increment without cumulative effect. These orders were unsuccessfully challenged by the petitioner before the appellate authority and before the reviewing authority. Writ petition has been filed challenging Exts.P3, P5 and P7. W.P.(C).1085/2008 4 5. I heard learned counsel for the petitioner Mr.P.Ali and learned senior counsel for the Electricity Board, Mr.Asok M.Cherian. A counter affidavit has been filed by the Electricity Board supporting the impugned orders. 6. Ext.P1 proposed a detailed enquiry with the aid of the evidence of seven witnesses proposed to be examined. A detailed reply was submitted by the petitioner to the statement of allegations in the memo of charges. If the Board felt that an enquiry was not necessary, it could have dispensed with the same. But it was necessary that the petitioner be heard on his explanation. Admittedly, that has not been done. 7. I take note of the fact that the allegations regarding supervisory lapse relates to the period from 8.2.1987 to 7.7.1987. But it is raised for the first time in Ext.P1 dated 31.12.1998. There is no W.P.(C).1085/2008 5 explanation for the delay of almost ten years. It will be extremely difficult for an employee who had moved away from a position, to defend himself in an effective way after a period of ten years. Unexplained delay in the matter of initiating disciplinary proceedings was frowned upon by the Supreme Court in P.V.Mahadevan v. MD.T.N.Housing Board (2005 (6) SCC 636). 8. Ext.P3 order passed by the disciplinary authority refers to an enquiry by the State Vigilance which allegedly assessed the loss caused to the Board, at Rs.31062/-. A copy of the said enquiry report of the State Vigilance has not been independently supplied to the petitioner. Learned counsel for the Board submits that the said enquiry was a preliminary enquiry and that is why Ext.P1 proposed a detailed enquiry against the petitioner. But such enquiry was not held, nor was the petitioner heard on the explanation submitted W.P.(C).1085/2008 6 by him as Ext.P2. It is therefore, clear that the petitioner’s explanation has not been considered by the authority and material which was not supplied to him has been relied upon for the purpose of coming to the conclusion that the petitioner is also responsible for the loss allegedly caused to the Board. A reasonable procedure has not been followed in this regard. I am satisfied that the orders impugned are therefore unsustainable. 9. In the result, writ petition is allowed. Exts.P3, P5 and P7 are quashed. It is made clear that this will not stand in the way of the Board conducting a detailed enquiry as proposed under Ext.P1, if they are so advised in this regard. V.GIRI, Judge mrcs