IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 25TH JANUARY 2008 / 5TH MAGHA 1929 WP(C).No. 6327 of 2006(C) ----------------------------------- PETITIONERS: -------------------- 1. R. BABU HARSHAKUMAR, ASSISTANT EXECUTIVE ENGINEER (CIVIL), KERALA STATE ELECTRICITY BOARD, AZHUTHA SUB DIVISION, PEERUMEDE, IDUKKI DISTRICT. 2. R. CHANDRASEKHARAN, ASSISTANT ENGINEER (CIVIL), OFFICE OF THE CHIEF ENGINEER (DISTRIBUTION-SOUTH), POWER HOUSE BUILDINGS, THIRUVANANTHAPURAM. BY ADV. SRI.P.M.PAREETH SMT.C.C.JANCY RESPONDENTS: ---------------------- 1. KEALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VIDHYUTHI BHAVANAM PATTOM, THIRUVANANTHAPURAM. 3. CHIEF ENGINEER (CIVIL-CONSTRUCTION), KERALA STATE ELECTRICITY BOARD,VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 4. DEPUTY CHIEF ENGINEER (CIVIL-DESIGNS) KERALA STATE ELECTRICITY BOARD,VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 5. EXECUTIVE ENGINEER, CIVIL DIVISION, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO: 6327/2006 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE LETTER NO. CIELA/B&R/1/2000/18 DT. 20/4/01. EXT.P2. COPY OF THE MINUTES OF THE MEETING HELD ON 24/05/2001. EXT.P3. COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION ISSUED TO THE P1 DT. 30/1/2004 BY THE R2. EXT.P3A. COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATION ISSUED TO THE P2 DT. 30/1/04 BY R2. EXT.P4. COPY OF THE WRITTEN STATEMENT DT. 8/3/04 BY THE P1 BEFORE THE R2. EXT.P4A. COPY OF THE REPLY DT. 17/3/04 BY THE P2 BEFORE THE R2. EXT.P5. COPY OF THE SHOW CAUSE NOTICE DT. 7/10/04 ISSUED BY THE P1. EXT.P5A. COPY OF THE SHOW CAUSE NOTICE DT. 7/10/04 TO THE P2. EXT.P6. COPY OF THE REPLY TO THE SHOW CAUSE NOTICE SUBMITTED BY THE P1 DT. 16/11/04. EXT.P6A. COPY OF THE REPLY TO THE SHOW CAUSE NOTICE SUBMITTED BY THE P2 DT. 19/11/04. EXT.P7. COPY OF THE ORDER DT. 30/3/2005 ISSUED TO P1 BY THE R2. EXT.P7A. COPY OF THE ORDER DT. 30/3/05 TO THE P2 BY THE R2. EXT.P8. COPY OF THE APPEAL DT. 25/5/05 SUBMITTED BY THE P2 BEFORE THE R1. EXT.P8A. COPY OF THE APPEAL DT. 25/05/05 BY P2 BEFORE THE R1. EXT.P9. COPY OF THE ORDER DT. 21/11/2005 ISSUED BY THE R1 TO THE P1. EXT.P9A. COPY OF THE ORDER DT. 21/11/2005 ISSUED BY THE R1 TO THE P2. RESPONDENT'S EXHIBITS NIL. True copy tga V.GIRI, J. ------------------------- W.P.(C).No.6327 of 2006 ------------------------- Dated this the 25th day of January, 2008. JUDGMENT The petitioners were proceeded against in disciplinary proceedings as evidenced by Exts.P3 and P3 (a) memo of charges. A perusal of Ext.P3 memo of charges issued by the Chairman of the Board will show that the document relied upon for framing the charges is the enquiry report in the Vigilance File No.Vig.A- II/1944/03. The petitioners submitted a reply to the same. Though issuance of the memo of charges contemplated an enquiry leading to imposition of major punishment, it seems that the same was not proceeded with. Apparently Ext.P5 show cause notice was issued by the Chairman asking why a punishment of barring of two increments with cumulative effect should not be imposed on the petitioners. A reply was given thereto and Exts.P7 and P7 (a) came to be passed in the case of the petitioners finding as follows: “The undersigned has examined the reply to the show cause notice submitted by the delinquent Assistant W.P.(C).NO.6327/06 :: 2 :: Executive Engineer vide paper 5th read above, in detail, with reference to the connected files and records of the case and found that the explanation of the delinquent Assistant Executive Engineer is not convincing. It is found that the estimate for electrification of the Inspection Bungalow was designed and executed in a non-standard and uneconomic manner, violating the stipulated norms and that the cost of electrification could have been reduced by 20% had the estimate been prepared in a cost effective manner. It is also found that the delinquent Assistant Executive Engineer has committed grave irregularities as alleged in the memo of charges issued to him. However the undersigned, taking a lenient view, decides to reduce the punishment of barring of his next two annual increments with cumulative effect proposed in the show cause notice to that of barring of his next two annual increments without cumulative effect.” 2. This order was challenged in appeal before the Full Board and was rejected under Exts.P9 and P9(a) orders. The said orders are under challenge in this writ petition. W.P.(C).NO.6327/06 :: 3 :: 3. A counter affidavit has been filed by the Electricity Board supporting the orders under challenge and a reply affidavit has been filed by the petitioners. 4. I do not think it necessary to embark upon a detail appraisal of the facts partly for the reason that it is not called for in proceedings under Article 226 of the Constitution of India and partly on account of the nature of the directions, which I propose to issue. 5. Regulation 16 of the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations framed under Section 79(c) of the Electricity (Supply) Act, 1948 deals with the procedure for imposing major penalties. As per Regulation 16(2), the authority is to frame definite charge/charges, which shall be communicated to the Board employee together with a statement of the allegations on which each charge is based. The further procedure as such is detailed in Regulation 16 of the Regulations. Regulation 17 details the procedure for imposing a minor penalty. It may be noticed in this context, as per the Regulations, the procedure for withholding of increments with or without W.P.(C).NO.6327/06 :: 4 :: cumulative effect are the same and seems to be treated as a minor penalty unlike in the case of Civil Services [Classification, Control and Appeal] Rules applicable to the Government servants, as it stood before the amendment brought about in 2002. It seems, therefore, that the disciplinary authority might have had in contemplation a proposal for imposing a major penalty, when he issued Exts.P5 and P5(a) along with the statement of allegations. If that be so, a formal enquiry should have been conducted in the manner provided in Regulation 16(b) of the Regulations. Admittedly, no such enquiry was conducted. It is true that ultimately imposition of withholding of increment is only a minor penalty as contemplated by Regulation 11(3) of the Regulations and therefore, the absence of an enquiry, as such, may not vitiate the punishment of withholding of increment with or without cumulative effect; but by that itself will not resolve the issue. 6. There was a reason for the issue of memo of charges by the disciplinary authority because imposition of major penalty might have been in contemplation at W.P.(C).NO.6327/06 :: 5 :: that stage. It is also significant to note that in the memo of charges there is reference to an earlier enquiry and it seems that charges have been framed on the basis of the said enquiry report. In my view, if this be so, then a copy of the said enquiry report ought to have been issued to the petitioners and they must have been given a chance to submit a written statement of defence with reference to the said enquiry report. Though not strictly applicable, Clause 17 of the Regulations would support this case. A copy of the enquiry report has been made available to me for perusal by the learned standing counsel for the Electricity Board and I find that, statements of several persons have been taken therein. Apparently, the said report has been relied on by the disciplinary authority also, to find that the charges levelled against the petitioners have been proved. This is clear from the portion of Ext.P7, which has been extracted above. In the circumstances, a copy of the said report should have been supplied to the delinquents to comply with the principles of natural justice. W.P.(C).NO.6327/06 :: 6 :: 7. I also find from a reading of Ext.P7 and P7(a) orders and the appellate orders, that there is no independent appreciation of the averments in the written statement of defence. There is a charge, referred to in the course of the narration of facts followed by a finding that the explanation is unsatisfactory. This also will not suffice. No doubt a detailed finding on each one of the charges would be required only in a case where the procedure in Regulation 16 is being followed for imposition of major penalty. But even if the procedure under Regulation 16 is not followed, there must be an appraisal of the circumstances to come to a definite finding therein. That has not been done. 8. I also take note of the fact that a detailed explanation was submitted by the petitioners to the memo of charges. They were entitled to insist on a consideration of their objections. 9. I have also noted from the appellate orders Exts.P9 and P9(a) that except for reducing the punishment from barring of two increments with cumulative effect to one increment, there is no W.P.(C).NO.6327/06 :: 7 :: independent consideration of the contentions raised by the petitioners. 10. For all these reasons, I am of the view that the disciplinary proceedings initiated against the petitioners have to start again from the stage of issue of memo of charges, Exts.P5 and P5(a). 11. In the result, Exts.P7, P7(a), P9 and P9(a) are set aside. The 2nd respondent is directed to take a decision as to whether there is a proposal to impose a major penalty on the petitioners and if it is so decided, an enquiry, as contemplated in Regulation 16 of the Regulations, will have to be conducted. But if there is no proposal for imposing a major penalty, then such enquiry need not be conducted. But, at the same time, a copy of the enquiry report, on the basis of which the charges have been framed {referred to in Exts.P3 and P3(a)}, shall be supplied to the petitioners. If the petitioners are desirous of any other materials and they require them and it is found to be material and relevant, the same shall also be supplied to them. Petitioners shall be given a fresh opportunity to adduce additional objections. W.P.(C).NO.6327/06 :: 8 :: Thereafter, a fresh decision shall be taken by the 2nd respondent disciplinary authority, in accordance with law, within six months from the date of receipt of a copy of this judgment. The writ petition is thus allowed in part. It is made clear herein that a copy of the vigilance report need be supplied to the petitioners only if the disciplinary authority proposes to rely on the said report in the disciplinary proceedings initiated against the petitioners. It is further made clear that it will be open to the disciplinary authority to independently proceed under Regulation 17 of the Regulations without an enquiry and proceed to impose an appropriate punishment in case the disciplinary authority does not intend to rely on the vigilance report, as such. Sd/- (V.GIRI) JUDGE sk/ //true copy//