IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD NOVEMBER 2011 / 12TH KARTHIKA 1933 WP(C).No. 23519 of 2006(Y) --------------------------------------- PETITIONER(S): ------------------------ P.M.MATHAI, ASSISTANT ENGINEER (CIVIL), IDUKKI AUGMENTATION SCHEME, MOOLAMATTOM, IDUKKI DISTRICT. BY ADV. SRI.P.M.PAREETH SMT.C.C.JANCY SRI.MOHAMMED SHAMEEL RESPONDENT(S): -------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER(HRM), KERALA STATE ELECTRICITY BOARD, VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. 3. DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, GENERATION CIRCLE, MOOLAMATTOM, IDUKKI DISTRICT. 4. CHAIRMAN, KERALA STATE ELECTRICITY BOARD KERALA STATE ELECTRICITY BOARD, VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM. R1 TO R4 BY ADV. SRI.K.S.ANIL, SC, KSEB SRI. ASOK M.CHERIYAN, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/11/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.23519/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS BY THE 3RD RESPONDENT DT.D 16.2.01. P2:- COPY OF THE REPLY DTD. 8.3.01 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P3:- COPY OF THE ADDITIONAL MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DT.D 10.1.03 ISSUED BY THE ENQUIRY OFFICER. P4:- COPY OF THE REPLY DTD. 27.1.03 ISSUED BY THE PETITIONER. P5:- COPY OF THE SHOW CAUSE NOTICE DTD. 3.7.04 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P6:- COPY OF THE REPLY DTD. 21.7.04 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P7:- COPY OF THE PROCEEDINGS DTD 4.11.04 ISSUED BY THE 3RD RESPONDENT. P8:- COPY OF THE ORDER DTD 31.3.05 ISSUED BY THE 2ND RESPONDENT. P9:- COPY OF THE ORDER DTD 1.12.05 ISSUED BY THE 4TH RESPONDENT CHAIRMAN. P10:- COPY OF THE MEMORANDUM OF APPEAL DT. 7.1.06 FILED BY THE PETITIONER BEFORE THE FULL BOARD. P11:- COPY OF THE ORDER DTD. 20.4.06 ISSUED BY THE IST RESPONDENT. P12:- COPY OF THE LETTER DTD. 13.6.2000 ISSUED BY THE PETITIONER TO THE CONTRACTOR. P13:- COPY OF THE LETTER DTD. 30.8.2000 ISSUED BY THE 3RD RESPONDENT. P14:- COPY OF THE ORDER DTD. 11.1.01 ISSUED BY THE 3RD RESPONDENT. P15:- COPY OF THE ENQUIRY REPORT DTD. NIL. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE LETTER DTD. 20.2.2000 TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.23519 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of November, 2011 J U D G M E N T The petitioner is an Assistant Engineer (Civil) working in the Kerala State Electricity Board. By Ext.P1 memo of charges, disciplinary proceedings were initiated against the petitioner. An enquiry was conducted. The petitioner was found guilty of certain charges and the punishment of barring of three increments was imposed on the petitioner. In appeal, it was reduced and ultimately the Board by Ext.P11 order, the punishment of barring of one increment without cumulative effect was imposed on the petitioner. The petitioner has filed this writ petition seeking the following reliefs: “1) A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P1 and quash the same. 2) A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P11 order issued by the first respondent to the extent it orders barring of one annual increment of the petitioner without cumulative effect. 3) A declaration to the effect that being at the lowest rung of the hierarchy of Civil Engineers the petitioner cannot be singled out and punished for any alleged lapse in any civil work which is admittedly supervised by the Assistant Executive Engineer and Executive Engineer without making them also answerable.” W.P.(C)No.23519 of 2006 -2- 2. The petitioner challenges the enquiry proceedings itself on several grounds. I am impressed by two of the grounds raised by the petitioner and therefore I shall confine myself to those two grounds. The petitioner submits that in addition to the memo of charges issued by the disciplinary authority the Enquiry Officer framed additional charges, which are not sustainable. The 2nd contention is that, in the enquiry, the petitioner filed a list of witnesses and list of documents. The list of witnesses include the petitioner himself. Permission was denied by the Enquiry Officer for examining the defence witnesses which is in violation of principles of natural justice. He points out that in Ext.P15 enquiry report the fact that the petitioner was refused permission to examine witnesses has been specifically stated. 3. The Standing Counsel for the Kerala State Electricity Board opposes the contentions of the petitioner. 4. I have considered the rival contentions in detail. 5. Ext.P1 is the memo of charges, in which the W.P.(C)No.23519 of 2006 -3- following charges have been levelled against the petitioner. “ Memo of Charges I. That you, Sri.P.M. Mathai, while holding the charge of Asst. Engineer, C.M.Section No.I, Generation Circle, Moolamattom committed the following irregularities constituting grave misconduct and dereliction of duty. 1. The work under agreement No.DYCE/96/99-2000 was under your supervision and the same was completed on 30.4.2000. But you have submitted the bills, M.Books etc. for payment on 25.10.2000 only. This inordinate delay on your part has caused delay in arranging payment to the contractor and tarnished the image of the Board. 2. You have reported that the work was of inferior quality. But you have not served notice to the contractor and not stopped the work and measured the whole with a certificate that the work was completed satisfactorily. 3. The materials taken back were not accounted in your Register of materials for the month in which the work was completed. 4. You have suppressed the fact of damage caused to M.Book No.230/99-2000, where the work was initially recorded, till it was detected by the account wing of the Circle Office. II. Your above actions amounts to grave misconduct and dereliction of duty and financial loss to the Board. You are therefore, required to show cause why disciplinary action, as contemplated under the Kerala Civil Services (Classification, Control & Appeal) Rule 1960, should not be taken against you. You are allowed 15 days time from the date of receipt of this Memo to submit your written statement of defence through the Asst. Exe. Engineer, Civil Maintenance Sub Division, Moolamattom, failing which the matter shall be proceeded on the presumption that you have no explanation to offer. If required you may peruse the records detailed in the statement of allegations during office hours on any working day from 23.2.2001 to 28.2.2001 in the presence of Divisional Accountant, Generation Circle, Moolamattom. III. A Statement of allegations on which the above W.P.(C)No.23519 of 2006 -4- charge in based is attached.” 6. Ext.P15 is the enquiry report. In the same, the Enquiry Officer has stated thus: “An Additional Memo of charges and Statement of allegations were served by the Enquiry Officer during the course of enquiry vide EBI/DA/27/2002-2003/4/10-1-2003. The following additional charges were made against Sri.P.M.Mathai, Assistant Engineer as per the complaint dated 22.2.2001 received from the contractor Sri.M.U.Prasannan. 1. Made financial loss to the contractor. 2. Made mental harassment to the contractor. 3. Tarnished the image of the K.S.E.Board. The above charges were made on the following allegations. a). Sri.P.M.Mathai, AE, not effected payment for the work of supplying and fixing 18 steel kitchen sinks after dismantling damaged porcelain kitchen sinks. These leads to huge financial loss to the contractor. b).Sri.P.M.Mathai had intentionally inflicted mental harassment to the contractor and there by cheated the K.S.E.Board abusing his Official position apparently for his pecuniary gains. c). Such illegal acts had furnished the image of K.S.E.Board in the midst of public.” In Ext.P15 enquiry report, the Enquiry Officer has found the petitioner guilty of all the allegations except that the petitioner had made financial loss to the Board and delayed bills for his pecuniary gains. That means, the Enquiry Officer has found the petitioner guilty of the additional W.P.(C)No.23519 of 2006 -5- charges framed by him also. The power to frame charges against a delinquent rests exclusively with the disciplinary authority. Of course, in some cases the Enquiry Officer may re-frame the charges, but the Enquiry Officer is not empowered to frame additional charges. From Ext.P15 it is abundantly clear that the Enquiry Officer has framed additional charges and conducted the enquiry in respect of those charges also finding the petitioner guilty of some of those charges also. That is clearly unsustainable. Therefore, I agree with the petitioner on the 1st ground raised by him. 7. In Ext.P15 enquiry report, the enquiry officer states thus: “IV. Evidence from the Defense side:- As the examination of the Prosecution side was over Sri.P.M.Mathai, Assistant Engineer was asked to produce the list of Defense Witness and Defense Documents if any. He requested the time up to 15 January 2004 and was admitted. The list of 10 Nos. of Defense Witness and 7 Nos: Defense Documents were received from Sri.P.M.Mathai, AE. The 8th sitting was held on 1.3.01 for scrutinizing this lost. But Sri.P.M. Mathai did not attend this meeting as the letter send to him was returned back by the Courier Service. The 9th sitting was held on 26.3.2004. As the Enquiry W.P.(C)No.23519 of 2006 -6- Officer objected the DW 3 and DW5 to DW8 as Defense Witness being the person not related to this work or enquiry. The DW9 was a Prosecution Witness and DW 10 is the accused employee itself. So these two Defense Witness were also objected by the Enquiry Officer, Si. P.M.Mathai said that if the entire list given by him is not admitted, he will not bring any Defense Witness in to this enquriy. As the list cannot be admitted fully, the enquiry completed on 26.3.2004. A further written statement was given by Sri.P.M.Mathai, AE on 26.3.2004.” Of course, if the petitioner had produced some witnesses who are totally unrelated to the incident, perhaps the enquiry officer may be right in denying permission to examine those witnesses. But one of the witnesses is the petitioner himself. By no stretch of imagination can the Enquiry Officer deny the petitioner permission to examine himself as a witness. The petitioner had also produced 7 numbers of defence documents as is clear from the above quoted portion from Ext.P15. The petitioner can prove those documents only by examining the witnesses cited by him. That being so, the refusal by the Enquiry Officer to permit the petitioner to examine the witnesses is clearly against the principles of natural justice. On the above two grounds, clearly the enquiry proceedings are vitiated. For W.P.(C)No.23519 of 2006 -7- that reason, the enquiry proceedings are liable to be quashed. I do so. 8. The learned Standing Counsel for the K.S.E. Board seeks another chance to conduct a fresh enquiry in compliance with the principles of natural justice. I am not satisfied that it is worthwhile for the Board to do so, in so far as even if a fresh enquiry is conducted and punishment imposed the maximum punishment which can now be imposed is only withholding of one increment without cumulative effect. For that punishment, the Board will have to incur much more expense than the monetary value of the punishment itself. Therefore, I am not inclined to permit the Electricity Board to re-do the disciplinary proceedings. Accordingly the writ petition is allowed quashing Ext.P11 order. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/