IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 23RD JUNE 2009 / 2ND ASHADHA 1931 WP(C).No. 29953 of 2004(N) -------------------------------------- PETITIONER(S): ---------------------- SHRI.SHAJI PETER KALLADA, ASSISTANT EXECUTIVE ENGINEER, SUB STATION SUB DIVISION, PATHANAMTHITTA. BY ADV. MR.JOHNSON GOMEZ RESPONDENT(S): ------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE CHAIRMAN, THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. R1 TO R3 BY ADV. MR.C.K.KARUNAKARAN, SC FOR KSEB. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29953/2004-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PROCEEDINGS OF THE THIRD RESPONDENT NO.EBVS 6/8/02 DATED 13/02/2002. EXT.P2: COPY OF THE MEMO OF CHARGES NO.EBVSA 6/8/02 DATED 16/04/2002 ISSUED BY THE THIRD RESPONDENT. EXT.P3: COPY OF THE REPLY TO THE MEMO OF CHARGES DATED 29/04/2002 SUBMITTD BY THE PETITIONER BEFORE THE THIRD RESPONDENT. EXT.P4: COPY OF THE PROCEEDINGS OF THE THIRD RESPONDENT NO EBVS.6/8/2002 DATED 14/06/2002. EXT.P5: COPY OF THE SHOW CAUSE NOTICE NO.EBVS 6/8/02/67 DATED 28/05/2003 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER. EXT.P6: COPY OF THE SHOW CAUSE NOTICE NO.EBVS 6/8/02/67 DATED 27/06/2003 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER . EXT.P7: COPY OF THE PROCEEDINGS NO.EBVS 6/8/02/972 DATED 07/12/2003 OF THE THIRD RESPONDENT. EXT.P8: COPY OF THE APPEAL DATED 05/02/2004 SUBMITTED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXT.P9: COPY OF THE SHOW CAUSE NOTICE NO.VIG/BIV/1026/02 DATED 18/06/2004 ISSUED BY THE SECOND RESPONDENT. EXT.P10: COPY OF THE WRITTEN EXPLANATION DATED 21/07/2004 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P11: COPY OF THE PROCEEDINGS OF THE SECOND RESPONDENT NO.VIG/BIV/1026/02 DATED 16/09/2004. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. V.K.MOHANAN, J. --------------------------------------------- W.P(C).No. 29953 of 2004 N --------------------------------------------- Dated this the 23rd day of June, 2009 J U D G M E N T The petitioner, who was working as Assistant Executive Engineer, Substation Sub Division, Pathanamthitta, approaches this Court challenging Ext.P7 order issued by the third respondent and also Ext.P11 order issued by the second respondent. Ext.P7 is an order by which the third respondent awarded punishment against the petitioner of barring of two increments without cumulative effect and ordered to recover an amount equivalent to half of the loss sustained to the Board connected with the allegation against the petitioner and Ext.P11 is the order passed by the second respondent- the Chairman, Kerala State Electricity Board by which while confirming the order of the third respondent, he enhanced the punishment into barring of his two annual increments with cumulative effect. Thus, the petitioner approaches this Court aggrieved by Exts.P7 and P11 orders of the third and second respondents respectively. 2. In the writ petition, it is stated that the petitioner was not given the copy of the enquiry report before issuing WP(C) NO.29953 of 2004 :-2-: Ext.P5 show cause notice pursuant to which the punishment was awarded. Anyhow, the petitioner filed Ext.P6 reply to Ext.P5 show cause notice. But, according to the petitioner, without considering the explanation and reason put forward by the petitioner, the third respondent passed Ext.P7 order. According to the petitioner, Ext.P7 is vitiated as the same is issued in violation of principles of natural justice because the petitioner was not furnished a copy of the enquiry report. 3. It is the further case of the petitioner that aggrieved by Ext.P7 order, the petitioner preferred an appeal as Ext.P8 before the appellate authority, the second respondent. But, according to the petitioner, on his appeal, the appellate authority issued Ext.P9 show cause notice whereby he was directed to show cause why the punishment imposed by the third respondent as per Ext.P7 should not be enhanced. To Ext.P9 show cause notice, the petitioner has preferred Ext.P10 reply. In Ext.P10 reply, it is specifically stated that the new material proposed to be considered by the appellate authority is in no way acceptable and acted upon. In support of the above averments, it was pointed out that the operators diary is maintained in the ordinary course of business in the substation, for recording events like switching WP(C) NO.29953 of 2004 :-3-: of lines, transformers and feeders, faults on lines, change of operators etc. and the messages like the one mentioned above are recorded on another register -- Message Register-- maintained in the sub station. It is also stated that regarding the movement of materials, there is another register, specifically maintained for that purpose and only the concerned Station Engineer can make endorsement in that material register. It is pointed out in Ext.P10 that the person namely, Sri.Ajay Sreeharshan, who claimed to have recorded in the remarks column about the message of the petitioner is not an employee of the Board, but only a contractor performing the duties of an operator. He has no access to the records relating to the scrap disposal, material register etc. Besides the above, it is also pointed out that the said person was not examined during the domestic enquiry and had the said person been examined, the petitioner would have got an opportunity to cross-examine him and the correct position could have been brought on record. Therefore, it is specifically submitted before the second respondent that such piece of new material cannot be acted upon unless an opportunity is given to the petitioner. It is also pointed out before the second respondent regarding the non-supply of WP(C) NO.29953 of 2004 :-4-: the enquiry report before passing Ext.P7 order. However, the second respondent, by Ext.P11 order, disposed of the appeal preferred by the petitioner awarding the punishment of (i) barring of his two annual increments with cumulative effect, (ii) recovery of half of the loss caused to the Board i.e., Rs.15702.50 with interest @ 24% from him from the date of memo of charges i.e.16.4.2002. The above orders are under challenge in this writ petition. 4. I have heard learned counsel appearing for the petitioner as well as the Standing Counsel for the K.S.E.B. 5. Learned counsel for the petitioner vehemently submits that the entire proceedings are vitiated due to the gross violation of principles of natural justice. It is pointed out that initially, the third respondent has denied opportunity to the petitioner to have a perusal of the enquiry report so as to give effective and proper reply to Ext.P5 show cause notice issued by the third respondent before inflicting the punishment. Therefore, according to the learned counsel, Ext.P7 itself is liable to be set aside and the matter is to be reconsidered after furnishing a copy of the enquiry report to the petitioner. Learned counsel further WP(C) NO.29953 of 2004 :-5-: submits that the procedure adopted by the second respondent in awarding enhanced punishment as per Ext.P11 is highly arbitrary and illegal. It is the case of learned counsel for the petitioner that the new material considered by the second respondent for enhancing the punishment and also for issuing Ext.P9 show cause notice was not made available to the petitioner so as to satisfy the requirement of compliance of the principles of natural justice. As pointed out earlier and based upon such contention raised in the writ petition, the learned counsel reiterated the requirement of giving an opportunity to the petitioner to cross- examine the person who allegedly made the endorsement in the diary which has been considered by the appellate authority for issuing Ext.P9 show cause notice and for awarding enhanced punishment. Therefore, according to the learned counsel, Exts.P7 and P11 are liable to be set aside because the aforesaid orders are passed arbitrarily and illegally. 6. On the other hand, learned counsel for the K.S.E.B submits that the charge against the petitioner has been proved through a detailed domestic enquiry which was conducted in accordance with the principles of natural justice and even before awarding punishment as per Ext.P7, a show cause notice was WP(C) NO.29953 of 2004 :-6-: given to the petitioner and he has preferred Ext.P6 explanation. Therefore, according to the Standing Counsel, there is no violation of principles of natural justice before issuing Ext.P7. It is strenuously argued by the Standing Counsel for the K.S.E.B that while dealing with Ext.P8 appeal, a show cause notice was given to the petitioner as evidenced by Ext.P9 informing the petitioner regarding the consideration of new materials for the proposed enhancement of punishment. Therefore, according to the learned counsel, it was for the petitioner to ask the appellate authority, an opportunity for examining the witness viz., Sri.Ajay Sreeharshan or to cross-examine him. The petitioner has not availed that opportunity and therefore, it cannot be said that he was denied an opportunity in violation of principles of natural justice. Thus, according to the learned counsel, no interference is warranted. 7. I have carefully considered the contentions advanced by both the counsel and also perused the records. 8. At the outset, it is to be noted that the amount ordered to be recovered from the petitioner has already been recovered and that part of the punishment awarded by Exts.P7 and P11 has been implemented. Of course, such recovery is WP(C) NO.29953 of 2004 :-7-: subject to the result of this writ petition. It is to be noted that the petitioner was initially placed under suspension with effect from 13.2.2002 as per Ext.P1 order and served with a copy of Ext.P2 memo of charges. The allegation is that the petitioner was party to the theft of used transformer oil from the premises of 66 KV Sub Station, Palode. The specific charge against the petitioner was that he abused the official position in allowing to take away 46 barrels of used transformer oil during night time with the connivance of M/s.Brothers Scap Centre,Kurumassery from the premises of 66 KV Sub Station, Palode in his physical presence. The second charge is that he allowed the contractor, above named, to transport the scrap materials from the 66 KV Sub Station premises during the night time violating the conditions agreed by the contractor as well as the Board. The third charge is that the said act tantamounts to the supervisory lapse and thereby, caused a loss of Rs.50,000/- to the Board. There is no serious allegation against the enquiry ordered and the finding arrived at by the Enquiry Officer. The main dispute is with regard to the awarding of punishment. Initially, in Ext.P7 order, the third respondent awarded a punishment of barring of two increments without cumulative effect. The third respondent has also ordered WP(C) NO.29953 of 2004 :-8-: recovery of an amount equivalent to half of the loss sustained to the Board and the same is fixed as Rs.15,702.5 with interest at the rate of 24% from the date of memo of charges i.e., 16.4.2002. Aggrieved by the said order of punishment, the petitioner preferred Ext.P8 appeal before the second respondent. On filing Ext.P8 appeal, the second respondent -appellate authority issued Ext.P9 show cause notice stating that punishment awarded by the third respondent is not proportionate to the offences committed by the petitioner and it is also found that the Enquiry Officer has failed to consider some crucial evidence before arriving at a finding of the enquiry, such as operator's diary of 66 KV Sub Station, Palode for the period from 30.12.2001 to 31.12.2001 wherein the operator, Sri.Ajai Sreeharshan has recorded in the remarks column that “as per directions from Assistant Executive Engineer, Transmission Sub Division, Attingal, 20 barrels of oil is taken by M/s.Brothers, Scrap Contractory, Kurumassery”. According to the second respondent, this evidence clearly establishes the connivance of the petitioner with the scrap contractors who unauthorisedly lifted the transformer oil from the Substation premises. WP(C) NO.29953 of 2004 :-9-: 9 . On going by Ext.P9, it can be seen that no opportunity was given to the petitioner, other than showing cause to Ext.P9 show cause notice, to examine the witnesses or for perusal of records including that of perusal of enquiry report and also for examining the enquiry officer. The contention raised by the petitioner against Ext.P7 is that the enquiry report was not made available for giving explanation to Ext.P5 notice. Subsequently, while issuing Ext.P9 show cause notice also, no opportunity was given to the petitioner to peruse the enquiry report and also to examine the Enquiry Officer. Had an opportunity been given to the petitioner for perusal of the enquiry report and for examination of the Enquiry Officer, he can very well examine the Enquiry Officer so as to ascertain whether the Enquiry Officer adverted to the operator's diary wherein the operator had made the above mentioned remarks and the reason for ignoring the same, if any. It is also relevant to note that Sri.Ajai Sreeharshan was not examined as witness during the domestic enquiry and therefore, it is incumbent upon the appellate authority, when the appellate authority proposed to rely on the endorsement made by such person for the purpose of enhancing the punishment, to give an opportunity to the petitioner to cross-examine him. So it is WP(C) NO.29953 of 2004 :-10-: crystal clear that Ext.P11 order by which the punishment already imposed against the petitioner by Ext.P7 is enhanced, is in total violation of principles of natural justice and hence, for the above sole reason, the enhanced punishment will not sustain. In this juncture, it is relevant to note that the allegation proved against the petitioner is serious and it is quite unbecoming on the part of an Officer of KSEB like the petitioner. The main contention is against the awarding of the penalty by the third respondent as per Ext.P7 order and against Ext.P11 order of second respondent. On perusal of the records and on consideration of the facts involved in the case, I am of the view that the punishment awarded as per Ext.P7 is quite reasonable and correct. But, Ext.P11 to the extent indicated above will not sustain. Therefore, Ext.P11 order to the extent it imposed the punishment of barring of two annual increments with cumulative effect is liable to be set aside. As indicated earlier, the amount ordered by Ext.P11 and Ext.P7 has already been recovered from the petitioner and therefore, no interference is called for with respect to the second punishment awarded against him. In the result, this writ petition is disposed of confirming the punishment awarded by Ext.P7 order and setting WP(C) NO.29953 of 2004 :-11-: aside the first punishment awarded against the petitioner as per Ext.P11 order. The writ petition is disposed of with the above direction. V.K.Mohanan, Judge MBS/ WP(C) NO.29953 of 2004 :-12-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. OF 200 -------------------------------------------- J U D G M E N T DATED: -6-2009 WP(C) NO.29953 of 2004 :-13-: