IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 20825 of 2008(D) -------------------------- PETITIONER(S): --------------- A.VIDHYADHARAN , ANIYIL HOUSE GREEN VALLEY, NEAR ASSISSI, ALUVA. BY ADV. SRI.DEEPU THANKAN RESPONDENT(S): --------------- 1. KERALA STATE ELECTRICITY BOARD VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY. 2. CHIEF ENGINEER (HRM) VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE DEPUTY CHIEF ENGINEER ELECTRICAL CIRCLE, PERUMBAVOOR. ADVS. SRI.K.S.ANIL, SC, KSEB FOR R1-3 SRI. ASOK M.CHERIYAN, SC, KSEB FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J ----------------------------- W.P.(C) NO:20825 of 2008 ----------------------------- Dated this the 17th day of December, 2008 JUDGMENT The petitioner was an Assistant Executive Engineer in the Kerala State Electricity Board. During the period from 31-5-2003 to 23-7-2005, he was the Assistant Engineer in charge of Electrical Section, Aluva Town. Under the Electrical Section, Aluva Town there are 17000 consumers including 600 industrial consumers out of whom 27 are HT consumers. There is also an industrial estate in South Vazhakulam which falls within Electrical Section, Aluva Town. The pleadings disclose that in the Electrical Section, Aluva Town 11 K.V line has been drawn for a length of 60 kms and there are 110 transformers. On 11-5-2005, the Anti Power Theft Squad (APTS for short) of the Kerala State Electricity Board inspected the premises of M/s.Aluva Techno Rubbers, a HT consumer. The inspection lasted from 9 AM to 10 PM. The petitioner was present through out the inspection. On inspection, it was found that the said consumer had committed theft of electrical energy by providing a contractor in the under ground cable between the current transformer/power transformer and the meter box. This was detected after 7 hours of inspection and that too after verifying the power supply in a similar factory situate within the limits of the Electrical Section at Kizhakkambalam. wpc:20825 of 2008 2 2. Pursuant thereto, Ext.P1 memo dated 23-7-2005 was issued by the Deputy Chief Engineer alleging that the petitioner did not take steps to detect the theft of electrical energy by M/s.Aluva Techno Rubbers, that thereby he failed to carry out his official duty and that his action amounts to dereliction of duty resulting in revenue loss to the Board. The petitioner was also called upon to show cause why departmental action should not be taken against him as per the Kerala State Electricity Board Employees Classification, Control and Appeal Regulations, 1969. On receipt of Ext.P1 memo of charges, the petitioner submitted Ext.P2 reply pointing out that as theft was committed by laying an under ground cable and as there was no external manifestation of any attempt to commit theft of energy, the theft of energy went unnoticed. He also pointed out that there was no sudden increase or decrease in the consumption pattern and therefore he did not suspect any tampering with the electrical installation. He also pointed out that there was no tampering with the meter or in the transformer and therefore he had no reason to suspect theft of energy. 3. After Ext.P1 memo was issued, the petitioner was regularly promoted to the category of Assistant Executive Engineer. Thereafter, the files relating to the departmental action were transferred by the third respondent to the second respondent, the competent disciplinary authority. Along with the files, the third respondent had sent Ext.P3 letter to the second respondent inter alia stating that the petitioner and wpc:20825 of 2008 3 the Sub-Engineer have worked under him for a considerable long period, that they were loyal and obedient and that their work and character were satisfactory. However the second respondent Chief Engineer proceed to issue Ext.P4 memo of charges dated 26-10-2006 to which the petitioner submitted Ext.P5 reply. However there was no progress in the departmental enquiry and while matters stood thus, the petitioner retired from service on 31-12-2007 on attaining the age of superannuation. 4. After the petitioner retired from service, the Assistant Executive Engineer in charge of Electrical Division Aluva issued Ext.P6 Non Liability Certificate dated 16-2-2008 certifying that no liability is outstanding against the petitioner while he was working in the Electrical Division at Aluva and that the said certificate is issued subject to the finalisation of the departmental action initiated as per Ext.P4. The petitioner thereupon submitted Ext.P7 representation dated 21-2-2008 to the second respondent requesting for disbursement of terminal benefits. Thereafter, the second respondent sent Ext.P8 letter dated 2-4-2008 to the Executive Engineer Electrical Division, Aluva, sanctioning a minimum pension of Rs.1275/- to the petitioner and family pension of 1275/-+Dearness Relief to his wife in the event of his death. All other pensionary benefits were withheld for want of vigilance clearance certificate. The petitioner thereupon submitted Ext.P9 representation dated 18-6-2008 seeking disbursement of the wpc:20825 of 2008 4 terminal benefits in full. In Ext.P9 he also pointed out that Sri.Parameswaran Nair, the Sub Engineer of Electrical Section, Aluva Town who was also proceeded against in relation to the same incident, was later promoted as Assistant Engineer and given all terminal benefits after his retirement from service on 31-5-2006. This writ petition was thereafter filed seeking the following reliefs: i) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 and 2 to finalise the proceedings initiated on the basis of Ext.P1 and P4 on the basis of Ext.P2, P3 and P5 and release the full pension and all terminal benefits with interest to the petitioner. ii) issue a writ of mandamus or any other writ or order, direction directing the respondent to release the full pension and to pay all terminal benefits to the petitioner with interest from 1-1-2008 till the date of payment. 5. The second respondent has filed a counter affidavit contending inter alia that disciplinary action was initiated against the petitioner for lack of supervision. Reference is made to the surprise inspection conducted by Anti Power Theft Squad in the premises of M/s.Aluva Techno Rubbers, a consumer of the Board. The counter affidavit proceeds to state that following the surprise inspection an invoice for Rs.87,81,097/- was issued to the consumer, that the consumer thereupon filed W.P(C) No. 24397 of 2007 in this Court, that by virtue of the interim order passed in the said writ petition and on the appeal filed by the consumer before the Appellate Authority, the consumer has wpc:20825 of 2008 5 remitted the sum of Rs.53,47,055/-, that the sum of Rs.31,94,110/- is still due from the consumer, that the disciplinary action against the petitioner has not so far been finalised and that as the departmental action is pending, minimum pension alone was sanctioned to him. The respondents contend that under Rule 3 of Part III of the Kerala Service Rules they are entitled to recover from the petitioner, the pecuniary loss caused to the Board and that as the petitioner is being proceeded against for lack of supervision, his pensionary benefits cannot be disbursed before the departmental action is finalised. 6. From the materials on record that it is evident that the petitioner who was the Assistant Engineer and his subordinate Shri.Paramesaran Nair who was the Sub Engineer, were proceeded against after theft of electrical energy in the premises of Aluva Techno Rubbers was detected. Both of them were also promoted to the next higher posts. Sri.Parameswaran Nair was promoted from the category of Sub Engineer to the category of Assistant Engineer and the petitioner was promoted to the category of Assistant Executive Engineer. Sri.Parameswaran Nair, retired from service on 31-5-2006 on attaining the age of superannuation. Though departmental action was pending against him and a memo similar to Ext.P1 had been issued to him also in the year 2005, on his retirement, the terminal benefits were disbursed in full. The stand now taken by the Board is that as the Sub Engineer who was later promoted as Assistant Engineer retired wpc:20825 of 2008 6 from service on 31-5-2006, it was not possible to continue the departmental action against him and therefore his terminal benefits were fully disbursed. However, in the case of the petitioner, the stand taken by the Board is that since the departmental action is pending, the terminal benefits cannot be disbursed. 7. The materials on record disclose that it was the Sub Engineer who was the person immediately concerned with the reading of the meter and periodical inspection of the installation. Though the petitioner was not bound to take the meter reading he had a duty to inspect the installation. According to the petitioner there were no visible signs of tampering with the meter or the transformer and there was also no sudden decrease or increase in the consumption of energy. He has also stated that the Board is not equipped to detect tampering made under ground and that it was after 7 hours of intensive search that theft of energy through an under ground cable was detected. In these circumstances, the petitioner submits that he cannot be said to be negligent in the discharge of his duties. The petitioner also submits that if pensionary benefits can be disbursed to the Sub Engineer who was the man in charge of the meter reading and inspection of the installation, there is no reason why the petitioner who is a superior officer, should be denied the same. If as contended by the Board, there was negligence in the discharge of duties on the part of the Sub Engineer and the Assistant Engineer, I find no merit in the stand taken wpc:20825 of 2008 7 by the respondents that the terminal benefits were disbursed to the Sub Engineer, since the departmental enquiry could not be continued against him after his retirement. Rule 3 of Part III of the KSR applies to Sub Engineers and Assistant Engineers. In the case of the Sub Engineer, the Board decided not to recover any portion of the pecuniary loss arising out of the theft of electrical energy. However in the case of the petitioner the stand taken by the Board is that his pensionary benefits cannot be sanctioned or disbursed until the departmental action is finalised. 8. From the materials on record it is evident that the stand taken by the Board is arbitrary. The Board has no case that in the normal course of inspection the theft could have been detected. The Board has not denied the positive averment made by the petitioner that the theft could be detected only after 7 hours of intensive search and that theft was committed by laying an under ground cable. In these circumstances, I am of the considered opinion that there is no merit in the stand taken by the Board that there was negligence on the part of the petitioner in detecting the theft of energy. The Board also does not dispute, the averment made by the petitioner that the Board is not equipped to detect theft of energy through under ground cables and that theft of energy could have been detected only by digging up premises through which the under ground cable is laid. Further it is now conceded by the Board that the consumer has paid the sum of wpc:20825 of 2008 8 Rs.53,47,055/- and that the writ petition filed by the consumer challenging the demand made by the Board is pending in this Court. Having regard to the facts and circumstance set out above, I am persuaded to take the view that the stand taken by the Board in Ext.P8 is not tenable. In the result, I dispose of the writ petition with a direction to the respondents to fix the terminal benefits payable to the petitioner and disburse the same within four months from today. P.N.RAVINDRAN, JUDGE bps