IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM TUESDAY, THE 15TH DAY OF NOVEMBER 2011/24TH KARTHIKA 1933 WP(C).No. 5405 of 2010 (A) ---------------------------------------- PETITIONER(S) : ------------------------- T.P. JOHN, DIVISIONAL ACCOUNTANT (RTD), KERALA STATE ELECTRICITY BOARD, CIVIL CIRCLE, KOTAMANGALAM, RESIDING AT 'NIRMAL BHAVAN', P.O.PERUMBAOOR, ERNAKULAM DISTRICT. BY ADV. SRI.P.M.PAREETH RESPONDENT(S) : --------------------------- 1. SPECIAL OFFICER, MANAGING COMMITTEE, KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY SECRETARY, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. CHAIRMAN, KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 4. CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 5. DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, TIRUR-676 107, THIRUVANANTHAPURAM. BY ADV. SRI.PULIKOOL ABUBACKER, S.C, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Msd. WP(C).No. 5405 of 2010 (A) APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT P1 : A TRUE PHOTOCOPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS 27.10.2005 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P2 : A TRUE PHOTOCOPY OF THE REPLY DATED 12.11.2005. EXHIBIT P3 : A TRUE PHOTOCOPY OF THE ENQUIRY REPORT FORWARDED TO THE PETITIONER UNDER COVER OF LETTER DATED 13.08.2007 BY THE 5TH RESPONDENT. EXHIBIT P4 : A TRUE PHOTOCOPY OF THE REPLY DATED 02.08.2007 ISSUED BY THE 5TH RESPONDENT. EXHIBIT P5 : A TRUE PHOTOCOPY OF THE REPLY DATED 21.08.2007 SUBMITTED BY THE PETITIONER TO THE SHOW CAUSE NOTICE. EXHIBIT P6 : A TRUE PHOTOCOPY OF THE PROCEEDINGS DATED 04.10.2007. EXHIBIT P6(A): A TRUE PHOTOCOPY OF THE ORDER DATED 05.11.2007 ISSUED TO THE PETITIONER. EXHIBIT P7 : A TRUE PHOTOCOPY OF THE APPEAL DATED 09.11.2007 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. EXHIBIT P8 : A TRUE PHOTOCOPY OF THE ORDER DATED 04.09.2008 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P9 : A TRUE PHOTOCOPY OF THE APPEAL DATED 16.10.2008 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXHIBIT P10: A TRUE PHOTOCOPY OF THE ORDER DATED 08.10.2009 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P11: A TRUE PHOTOCOPY OF THE ORDER DATED 25.02.2009 SANCTIONING FINAL PENSIONARY CLAIMS OF THE PETITIONER ISSUED BY 4TH RESPONDENT. EXHIBIT P12: A TRUE PHOTOCOPY OF THE ORDER DATED 19.03.2010 ISSUED BY THE 3RD RESPONDENT REDUCING THE RATE OF INTEREST 3%. EXHIBIT P13: A TRUE PHOTOCOPY OF THE RELEVANT PROVISIONS IN THE GUIDELINE ON CASH ACCOUNTING IN KERALA STATE ELECTRICITY BOARD DATED 06.02.1993. RESPONDENT(S)' EXHIBITS ----------------------------------------- EXHIBIT R4(A): TRUE COPY OF THE B.O. DATED 19.09.2002. //TRUE COPY// P.S.TO JUDGE. Msd. C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 5405 of 2010 --------------------------------- Dated this the 15th day of November, 2011 JUDGMENT The petitioner retired as 'Divisional Accountant' while in the service of the 2nd respondent Board on 30.6.2007. While he was officiating as Senior Superintendent at the Electrical Section at Changarankulam on 28.3.2005, there occurred an incident whereby an amount of Rs.2,67,943/- which was entrusted by the cashier for remittance to the Bank with a contract employee (sweeper) was lost. Pursuant to the incident the petitioner and 3 other persons were suspended and Ext.P1 memo of charges and statement of allegations were issued against the petitioner alleging the following irregularities. i) committed violation of Rules stipulated by the KSEB pertains to remittance of revenue collection of the Board. ii) Supervisory lapse caused dereliction of duty by authorising a part time sweeper on daily wages who is not an employee of the Board for remittance of Board's money amounting to Rs.2,67,943/- which was lost on 28.3.2005. WP(C).5405/2010 2 2. The petitioner submitted Ext.P2 reply mainly contending that he was on casual leave on 23rd and 26th of March 2005 and 24th and 25th of March were holidays. According to the petitioner, the cash was entrusted for remittance with the contract employee before he could reach the office at 10.10 a.m. on 28.3.2005. Since he was not aware of such entrustment by the cashier, he is not responsible for any violation of Rules or supervisory lapses. An enquiry was conducted through Executive Engineer, Electrical Division, Tirur. Ext.P3 is the report of enquiry. Findings in Ext.P3 are to the effect that the petitioner, being the person responsible to watch the revenue collection, remittance and accounting, should have been more vigilant in the day to day activities in each revenue stage . Hence it is found that there occurred negligence on his part and he should be punished for the same. In the conclusion of the report, the enquiry officer observed that, the petitioner as well as other supervisory officers could not be evaded from the responsibilities of the incident. Based on the enquiry report a show cause notice was issued to the petitioner by the disciplinary WP(C).5405/2010 3 authority and the petitioner had submitted detailed explanations to the show cause notice. After consideration of the explanation, Ext. P6 order was issued finding that the petitioner is guilty of supervisory lapses and had violated the relevant rules and orders pertaining to transmission of public money, punishment was imposed to the extent of barring one increment without cumulative effect and ordering recovery of an amount of Rs.89314/- being 1/3rd of the amount lost. Ext.P6(a) is the consequential order issued in this regard for recovery of the amount. 3. Against Ext.P6 order imposing penalty the petitioner preferred appeal before the 4th respondent as evidenced from Ext.P7. Through Ext.P8 order the appeal petition was dismissed stating that, while examining the case in detail it is felt that the petitioner could not put forth any fresh point worthy to substantiate his arguments and the appellate authority was convinced that there is no need to interfere with the decision taken by the disciplinary authority. Aggrieved by Ext.P8 the petitioner preferred further appeal before the Chairman, 3rd respondent herein. Ext.P10 is the order passed by the 3rd WP(C).5405/2010 4 respondent. While upholding guilt of the petitioner, the punishment was modified to the extent of reducing liability of recovery to 1/4th of the amount, on the basis that one C.S.Shiny, Cashier who was exonerated by the disciplinary authority, is also liable for the loss caused. Ext.P11 is the consequential order issued fixing liability of the petitioner and effecting recovery of the amount due. In this writ petition the petitioner is challenging Ext.P6 order which is confirmed through Ext.P8 and P10 and also challenging steps of recovery initiated under Ext.P11. 4. Contention of the petitioner is that the findings arrived by the enquiry officer was not based on any materials and the evidence adduced during the time of enquiry does not revealed any supervisory lapses on the part of the petitioner. No materials was brought in evidence to fix liability on the petitioner, since it was revealed that during the time of enquiry the petitioner was not present while the money was entrusted to the sweeper. According to the petitioner, even if there is any violation of the rules in handling the money the same was committed only by the cashier for which the petitioner cannot be WP(C).5405/2010 5 held liable. 5. Going by orders issued by the disciplinary authority, which was confirmed in appeal and in review by respondents 3 and 4, this court is not inclined to accept any such contentions raised on the basis of the factual aspects or evidence on record. While exercising jurisdiction vested under Article 226, it is not expected to have a reappreciation of evidence pertaining to the enquiry or to evaluate correctness of the findings arrived on the factual aspect. At the most the petitioner can aspire only for a judicial review of the orders on the grounds of any patent illegality or perversity. Hence this court not inclined to interfere on the factual findings arrived by the disciplinary authority with respect to guilt of the petitioner which is confirmed by the appellate authority as well as by the 3rd respondent. 6. Regarding the quantum of punishment imposed also, this court do not find any unreasonableness which warrant interference of this court. However Sri. P.M.Pareeth, learned counsel appearing for the petitioner raised vehement contentions pointing out that the appellate authority as well as the 3rd respondent had omitted to note a specific contention raised by WP(C).5405/2010 6 the petitioner that the enquiry was conducted by the very same officer who subsequently became incumbent in office of the Deputy Chief Engineer and who had imposed the penalty after evaluation of the enquiry report. It is contended that one and the same person could not act as the enquiry officer as well as disciplinary authority. Learned counsel had drawn my attention to the specific ground raised in this regard before the appellate authority in Ext.P7 appeal as well as in the review petition filed before the 3rd respondent in Ext.P9. He further points out that the amount recovered by virtue of Ext.P11 is to the extent of a sum of Rs.10680/-. Therefore any further punishment towards increment bar without cumulative effect, is not sustainable. The penalty was imposed at a stage when the petitioner had retired from service. When increment is barred without cumulative effect, no recovery can be effected after retirement on the basis of such barring of increment. In this regard learned counsel had drawn my attention to the relevant provisions in the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations 1969. Pointing out to part V of the above said regulation, especially Regulation 11(1(iv)(b) and the explanation WP(C).5405/2010 7 thereto. It is contended that the monitory value equivalent to the bar of increment to 3 times of the amount of increment ordered can be withheld only in the case of barring of increment with cumulative effect and in a case where the increment is barred without cumulative effect such recovery is not possible. 7. Going by decisions of the 4th respondent appellate authority as well as Ext.P10 decision of the 3rd respondent, I notice that the specific contention raised by the petitioner that the enquiry was conducted and penalty was imposed one and the same person officiating in two different capacities, is not seen considered. So also recovery of amounts pertaining to barring of increment is allegedly in violation of provisions of the relevant regulations. Therefore this court is of the view that a reconsideration of the limited aspects will serve the interest of justice. 8. Therefore this court remits the matter to the 3rd respondent for a fresh consideration of the review petition on the above said limited aspects, after affording an opportunity of hearing to the petitioner. 9. Hence the writ petition is disposed of by quashing WP(C).5405/2010 8 Ext.P10 and P11. The 3rd respondent is directed to reconsider the matter and to take a decision based on the above observations, as early as possible, at any rate within a period of three months from the date of receipt of a copy of this judgment. C.K.ABDUL REHIM,JUDGE pmn/ WP(C).5405/2010 9