IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 WP(C).No. 8574 of 2006(U) ------------------------------------- PETITIONER(S): ---------------------- C.P.ABDUL HAMEED, SUB ENGINEER (RETIRED) KERALA STATE ELECTRICITY BOARD, ASRU MANZIL, MANNA, P.O.VALAPATTANAM, KANNUR DISTRICT. BY ADVS. SRI.P.M.PAREETH SMT.C.C.JANCY RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, KANNUR, VIDYUTHI BHAVANAM, KANNUR-2. 3. ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SUB DIVISION, PAPPINISSERY, KANNUR DISTRICT. R1 TO R3 BY ADVS. SRI.PULIKOOL ABUBACKER, SC, KSEB SRI. ASHOK.M.CHERIYAN, SRI.K.S.ANIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DG WP(C).No. 8574 of 2006(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE LETTER NO.GBI/01-02/80 DATED 26.06.2002. EXT.P2 : COPY OF THE ORDER DATED 16.08.03 EXT.P3 : COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DATED NIL. EXT.P4 : COPY OF THE REPLY DATED 19.11.03 SUBMITTED BY THE PETITIONER. EXT.P5 : COPY OF THE NOTICE DATED 28.06.05 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P6 : COPY OF THE APPEAL DATED 30.07.05 FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P7 : COPY OF THE POSTAL RECEIPT IN EXT.P6 DATED 03.08.05. EXT.P8 : COPY OF THE PROCEEDINGS NO.GBI/DA/13/2003-04/4267 DATED 22.12.05 ISSUED BY THE SECOND RESPONDENT. EXT.P9 : COPY OF THE REPLY DATED 02.01.06 SUBMITTED BY THE PETITIONER. RESPONDENT'S EXHIBITS - NIL /TRUE COPY/ P.A.TO JUDGE DG S.SIRI JAGAN, J. ================== W.P.(C).No. 8574 of 2006 ================== Dated this the 13th day of December, 2011 J U D G M E N T The petitioner retired from the service of the Kerala State Electricity Board as a Sub Engineer on 30.4.2000. On 26.6.2002 he was served with Ext.P1 notice directing him to pay an amount of ` 25,200/- towards loss caused to the Board on account of the anomalies detected in the premises of a consumer on 22.11.2000. Later on, by Ext.P2 dated 16.8.2003, in modification of the earlier order stated to have been passed, an enquiry officer, Sri.V.V.Suni, Assistant Executive Engineer, Electrical Sub Division, Pappinissery, was appointed as the enquiry officer into certain allegations against the petitioner. The enquiry officer issued Ext.P3 charge memo. The petitioner filed Ext.P4 reply to the same. Thereafter, Ext.P5 order was issued to the petitioner imposing on the petitioner the punishment of recovery of loss of an amount of ` 25,200/- caused to the Board on account of the alleged misconduct committed by the petitioner. The petitioner filed Ext.P6 appeal to the Secretary of the Kerala State Electricity Board. No orders were passed on the same. While so, the Electricity Board issued Ext.P8 order dated 22.12.2005 directing the petitioner to pay the said amount of ` 25,200/-. The petitioner submitted Ext.P9 to stay the recovery pending disposal of the appeal. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: w.p.c.8574/06 - : 2 :- “1) A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Exts.P1, P5 and P8 and quash the same. 2) A declaration to the effect that the petitioner is not liable to pay the amount of Rs. 25,200/- demanded in Exts.P1, P5 and P8 since the same is being penalty for unauthorized additional load has to be remitted by the petitioner.” The petitioner submits that the entire proceedings are vitiated by violation of principles of natural justice. It is submitted that the charge sheet has to be issued by the disciplinary authority and not by the enquiry officer. In this case, the charge sheet was issued by the enquiry officer himself, which makes the proceedings unsustainable from the inception. He further submits that he has never been furnished with a copy of the enquiry report, which is mandatory under the rules. He also contests the findings on merits. According to him, he is not liable to make good any loss to the Board. If at all any amount is to be made good, that is by the consumer, who is guilty of the alleged irregularities. It was perfectly open to the Board to recover the same from the consumer. Without doing the same, the respondents cannot seek to recover it from the petitioner is the contention raised. 2. A counter affidavit has been filed by the respondents, whereby the Board has sought to sustain the action against the petitioner. 3. I have considered the rival contentions in detail. 4. At the outset, I note that the entire proceedings have been w.p.c.8574/06 - : 3 :- initiated more than two years after retirement of the petitioner. After retirement, there is no employer-employee relationship between the Board and the petitioner. Unless there is a specific provision in the rules giving power to initiate disciplinary proceedings after retirement, the Board cannot initiate disciplinary proceedings against a retired employee. Even assuming that Rule 3 of Part III of KSR is applicable to the Board, then also, disciplinary proceedings can be initiated only with prior sanction from the Government. Even assuming that in the place of the Government the Kerala State Electricity board is to be substituted, insofar as the KSR is made applicable to the employees of the KSEB mutatis mutandis, then also, prior sanction from the full Board is mandatory for initiating disciplinary action after retirement. The respondents have no case that the Board has given sanction to initiate disciplinary action against the petitioner after retirement. So, on all counts, the disciplinary action initiated against the petitioner after retirement is without jurisdiction. 5. I also find considerable merit in the contention of the petitioner that the memo of charges issued by the enquiry officer is unsustainable. The memo of charges is to be issued by the disciplinary authority and not by the enquiry officer. The enquiry officer is to enquire into the charges levelled against a delinquent in the memo of charges issued by the disciplinary authority. The enquiry officer on his w.p.c.8574/06 - : 4 :- own cannot issue any memo of charges to a delinquent. As such, the very issue of the memo of charges by the enquiry officer and consequently, the subsequent proceedings in the enquiry on the basis of that memo of charges are also unsustainable. 6. The petitioner has specifically raised a contention that the petitioner has not been served with a copy of the enquiry report, which is in violation of the rules and principles of natural justice. The answer to the said contention in the counter affidavit is that as per Section 44 (2) of the Manual of Disciplinary Proceedings, a delinquent can claim a copy of the enquiry report only if a major penalty as stipulated in the Kerala Civil Service (Classification, Control and Appeal) Rules, 1960, is proposed to be imposed. I do not find any merit in the contention in the counter affidavit. The employees of the Board are covered by the Kerala State Electricity Board Employees' (Classification, Control and Appeal) Regulations, 1969. Regulation 17 thereof prescribes the procedure for imposing minor penalties. Regulation 17(3) reads thus; “17. Procedure for imposing minor penalties (1) ....... xxx xxx xxx (3) When an inquiry is conducted for the purpose of this section involving recording of evidence, the full procedure in respect of such evidence as laid down in the regulations relating to imposition of major penalties shall be observed.” Admittedly in this case an enquiry has been conducted and an enquiry report has been obtained, based on which only, the punishment of w.p.c.8574/06 - : 5 :- recovery of the loss has been imposed on the petitioner. Rule 16(11) reads as follows: “16. Procedure for imposing major penalties (1) ....... xxx xxx xxx (11) The disciplinary authority, where it is not the Board, shall if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. Where the disciplinary authority is the Board, it shall consider the records of the inquiry and where it is considered necessary to depart from the findings of the Inquiring Authority, record its provisional findings on each charge with reasons thereof.” Regulation 17(3) read with Regulation 16(11) makes it mandatory on the Board to supply a copy of the enquiry report on the delinquent. The stipulation in the Manual of Disciplinary Proceedings, not being statutory, cannot override the statutory rules. Therefore, the disciplinary action could have been proceeded with only after supplying a copy of the enquiry report to the petitioner. Admittedly in this case, a copy of the enquiry report has not been supplied to the petitioner. That amounts to violation of the Regulations as well as principles of natural justice. 7. Apart from the same, I find considerable merit in the contention of the petitioner that even if there was any loss caused to the Board, it could have very well been recovered from the consumer who was the primary offending party. As such, without at least attempting to recover the same from the consumer, I do not think that w.p.c.8574/06 - : 6 :- the petitioner can be mulcted with the liability to pay the said amount as loss caused to the Board. For all the above reasons, the entire disciplinary action culminating in the impugned orders is bad in law. Accordingly, they are quashed. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge