IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 OP.No. 9181 of 2002(R) ------------------------------- PETITIONER(S): --------------------- S.SHEREEF RAWTHER S/O.SHAHUL HAMEED, AGED 54 YEARS,ASSISTANT ENGINEER,110 K.V. SUB STATION, EDAPPONE. BY ADV. SRI.M.M.ABDUL AZIZ (SR.) SRI.A.SHAFEEK SRI.M.A.ABDUL HAKHIM RESPONDENT(S): ------------------------- 1. KERALA STATE ELECTRICITY BOARD,VIDYUTHI BHAVAN,PATTOM,TRIVANDRUM,REPRESENTED BY ITS SECRETARY. 2. DEPUTY CHIEF ENGINEER,KERALA STATE ELECTRICITY BOARD,ELECTRICAL CIRCLE, ALLEPPY 3. EXECUTIVE ENGINEER,KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, MAVELIKKARA. 4. DEPUTY CHIEF ENGINEER,TRANSMISSION CIRCLE,POOVANTHURUTHU,KOTTAYAM-12 5. K.THANKAPPAN CONTRACTOR, PARAKKAL HOUSE, KUNNAM. ADV. SRI. SRI.C.K.KARUNAKARAN, SC FOR KSEB FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P. NO.9181/2002-R APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE RECEIPT FROM THE 5TH RESPONDENT FOR SUPPLY OF MATERIALS TO HIM FOR EXECUTION OF THE WORK DURING 15/02/94 TO 14/02/95. EXT.P2: COPY OF THE MEMO DATED 25/08/97 ISSUED BY 3RD RESPONDENT TO THE PETITIONER. EXT.P3: COPY OF THE EXPLANATION DATED 09/12/97 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT. EXT.P4: COPY OF THE LETTER DATED 08/10/98 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P5: COPY OF THE ORDER DATED 22/01/2002 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. EXT.P6: COPY OF THE NOTICE DATED 07/03/2002 FOR THE RECOVERY OF THE AMOUNT ISSUED BY THE 4TH RESPONDENT. EXT.P7: COPY OF THE MEMO DATED 02/03/2002 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P8: COPY OF THE UNDERTAKING GIVEN BY THE PETITIONER DATED 20/03/2002. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE AGREEMENT NO.1/MVK/93-94 DATED 02/06/1993. EXT.R1(b): COPY OF THE JUDGMENT IN OP NO.21004/2001 DATED 08/10/2001 PASSED BY THE HONOURABLE HIGH COURT. //TRUE COPY// P.A. TO JUDGE Rs/ T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.9181/2002-R ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 17th day of December, 2008. J U D G M E N T The petitioner seeks to challenge Exts.P5 to P8 and further seeks a declaration that he is not liable to pay the value of unreturned unutilised balance materials for which a liability has been fixed as per Exts.P2 and P5. 2. The brief facts are the following:- He was a Assistant Engineer in the K.S.E.B at the time of filing of the writ petition. While he was working as Sub Engineer at Electrical Major Section, Charummood, the then Assistant Engineer at the said station retired from service on superannuation in November 1994. The petitioner was in- charge of the Assistant Engineer, Electrical Major Section, Charummood for the period from 01/12/1994 to 03/05/1995. Construction was in progress for drawing a new 11KV single circuit line from 110 KV Sub-Station, Edappone to Kattanam and a contractor engaged by the K.S.E.B was performing the work. Fifth respondent was the contractor and as per the agreement executed by him, materials required were to be supplied by the K.S.E.B. By Ext.P2 memo, the petitioner was informed that the Board had suffered heavy loss due to non-accounting of valuable materials as per MASA. The liability has been fixed at Rs.3,41,989/-. He was directed to O.P. No.9181/2002 -:2:- clear the liabilities within 30 days from the date of receipt of the memo and he was also informed that if it was not paid, action would be taken to recover it as per the rules. He submitted Ext.P3 explanation seeking to drop the action proposed. An opportunity of being heard was also sought. Thereafter, Ext.P4 was issued to him stating that the liability already fixed against him still holds good and that the matter was being reported to the higher authorities for initiating disciplinary action against him and also for recouping the loss. The amount covered by Ext.P2 was modified by Ext.P5 by the same officer and the liability was reduced to Rs.2,33,502.60. Through Ext.P6, recovery of the said amount from his salary and other claims, was mooted. Ext.P7 is the memo of charges, issued pursuant to the disciplinary action initiated and Ext.P7(2) is the statement of allegations. Ext.P8 is the letter given by the petitioner to the Deputy Chief Engineer informing that the direction to pay the amount with interest is against rules and highly irregular, but he is prepared to remit the amount of liability and at the same time he may be exonerated from payment of interest. 3. The petitioner challenges the proceedings against him on various grounds. It is submitted that the materials were supplied to the contractor on proper receipt and, therefore, the question of liability for those materials O.P. No.9181/2002 -:3:- supplied to the contractor for the work that was being executed for the K.S.E.B, cannot arise on his part. It is therefore, pointed out that there is gross violation of the rules and that the liability has been fixed without any notice to him and without giving an opportunity for him to object and, the quantification itself is thus vitiated. Even the explanation given in Ext.P3 have not been properly verified by the Executive Engineer and Ext.P4 is rather cryptic. None of the points have been answered therein. It is therefore, submitted that the entire action initiated culminating in the disciplinary proceedings is without any legal sanction. 4. The respondents have filed a detailed counter affidavit. The stand taken in the counter affidavit is that the materials issued to the work should have been properly accounted through materials consumption statement. The petitioner is only trying to evade his responsibility without making any earnest efforts to settle the matter. It is further submitted in paragraph (6) that even though the petitioner requested in Ext.P3 to give him an opportunity of being heard, as the third respondent was fully convinced of all the matters and had no doubt in the matter, no personal hearing was found necessary. 5. It is not known how the liability was fixed as per Ext.P2 and how the amount was arrived at. Later it was reduced also. Normally when such O.P. No.9181/2002 -:4:- monetary loss is alleged on the part of the person concerned and when he is asked to recoup the said loss, the principle of natural justice requires that the person should be given an opportunity to put forward his objections in the matter before the loss is fixed. That is totally absent here as evident from the proceedings Ext.P2 itself. What is attempted to be done by Ext.P2 is to inform the petitioner of the liability to the tune of Rs.3,41,989/- and asking him to clear the said liability within 30 days. Even though he submitted an explanation Ext.P3, none of the points referred to therein have been adverted to while rejecting it by Ext.P4. Even in Ext.P4, no answer is attempted as to how the liability was fixed and the request to verify the documents is not seen answered. But later by Ext.P5, the amount has been reduced to Rs.2,33,502.60. Exts.P2 and P5 thus cannot stand as the same violates the principles of natural justice. He should have been given a proper notice before any quantification was arrived at, of the alleged loss. Further it is pointed out that the matter is governed by Kerala Civil Services (CC & A) Rules, 1960 and, therefore, only by resorting to the said rules alone, proceedings can be initiated and finalised. No punishments have been imposed as per the said rules, including recovery from pay, It is only after directing recovery, Ext.P7 was issued. It is true that a disciplinary action has been proposed separately, even then it is elementary that O.P. No.9181/2002 -:5:- before fixing the liability on any account, the petitioner should have been given an opportunity. For all these reasons, I find that Exts.P2 and P5 cannot be sustained. Therefore, I quash the same. 6. Even though it is contended by the respondents that going by Ext.P8, the petitioner volunteered to remit the amount, in the light of the fact that the same is only pursuant to the proceedings which are highly irregular, no sanctity can be attached to it. Even in Ext.P8 he has made it clear that the direction issued to him is against the rules and, highly irregular. Once the basis of the order goes, the same cannot have any effect at all. 7. Thus what remains is the finalisation of the disciplinary proceedings and fixation of liability, if any. It is reported that the petitioner has retired from service. Therefore, it is upto the competent authority to take a decision as to the manner in which the disciplinary action could be proceeded against the petitioner and liability, if any, could be recovered from him. Leaving open the said right of the respondents, I allow this writ petition. No costs. (T.R. Ramachandran Nair, Judge.) ms O.P. No.9181/2002 -:6:- ORDER ON C.M.P.NOS.16381/2002 & 21390/2003 IN O.P No.9181/2002 DISMISSED. SD/-T.R.RAMACHANDRAN NAIR, JUDGE 17/12/2008 \\TRUE COPY// P.A TO JUDGE O.P. No.9181/2002 -:7:- T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ O.P. No.9181/2002-R ~~~~~~~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T 1 7 t h D e c e m b e r , 2 0 0 8 .