Kerala High Court
J.S.Sreekumar vs Kerala State Electricity Board on 5 March, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P(c).No.17329/2013-M 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 05TH DAY OF MARCH 2020 / 15TH PHALGUNA, 1941
WP(C).No.17329 OF 2013(M)
PETITIONER:
J.S.SREEKUMAR, AGED 46 YEARS
S/O.N.SREEKANTAN NAIR, EXECUTIVE ENGINEER,
CIVIL DIVISION,KERALA STATE ELECTRICITY BOARD,
PATTOM, THIRUVANANTHAPURAM,
RESIDING AT `SREENANDANAM', VENGANOOR,
VENGANOOR P.O, THIRUVANANTHAPURAM.
BY ADV. SRI.P.V.MOHANAN
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD
REPRESENTED BY ITS SECRETARY,
KERALA STATE ELECTRICITY BOARD,
VYDHYUTHI BHAVAN, PATTOM,
THIRUVANANTHAPURAM 695 004.
2 THE SECRETARY AND CONVENER
DEPARTMENTAL PROMIOTION COMMITTEE (HIGHER),
KERALA STATE ELECTRICITY BOARD,
THIRUVANANTHAPURAM 695 004.
3 BALAKRISHNAN K
DEPUTY CHIEF ENGINEER, DESIGN CELL,
OFFICE OF THE DEPUTY CHIEF ENGINEER,
DESIGN CELL, OFFICE OF THE DEPUTY CHIEF ENGINEER,
KERALA STATE ELECTRICITY BOARD,
KOZHIKODE 673 001.
R1 BY SRI.K.S.ANIL, SC, KSEB
R1, R3 BY ADV. SRI.ELVIN PETER P.J.
R1 BY ADV. SRI.K.R.GANESH
R1 BY ADV. SRI.T.G.SUNIL PRANAVAM
SRI.M.K.THANKAPPAN,SC,KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
05.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P(c).No.17329/2013-M 2
P.V.ASHA, J.
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W.P(C) No.17329 of 2013-M
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Dated this the 5th day of March, 2020
JUDGMENT
The grievance of the petitioner is that he is not considered for promotion to the post of Deputy Chief Engineer under the guise of departmental proceedings for major penalty. The petitioner challenges Ext.P11 list for promotion to the post of Deputy Chief Engineer prepared by the Departmental Promotion Committee (Higher) and Ext.P12 order granting provisional promotion to the 3rd respondent.
2. Ext.P11 list was issued as early as on 22.6.2013. It is stated that the petitioner was promoted to the cadre of Assistant Executive Engineer in the year 1995 and he got promoted as Executive Engineer (Civil) on 20.06.1998 and he was rank No.18 in Ext.P1 gradation list of Executive Engineer (Civil) as on 30.03.2011. It is stated that though there were no adverse remarks in the annual confidential report, he was not considered even for provisional promotion even under Rule 31(a)(i) Part II of KS&SSR. It is stated that several persons, against whom disciplinary proceedings were pending, were included in the select list and granted W.P(c).No.17329/2013-M 3 promotion as per orders Exts.P4, P5 etc. The petitioner also points out that several persons were considered for promotion by the DPC on the basis of the interim orders passed by this Court. The petitioner points out that as per Exts.P9 and P10 proceedings, the Board had promoted one Sri Sasankan Nair, an Executive Engineer (Electrical), as Deputy Chief Engineer though disciplinary proceedings were pending against him; at the same time his case was not considered despite the direction in Ext.P8 judgment dated 24.05.2013 of this Court to consider his representation, in which he had requested to consider him for promotion. In Ext.P11 select list the name of the 3 rd respondent alone was included from among Executive Engineer (Civil) for promotion as Deputy Chief Engineer (Civil) and the 3rd respondent, who is junior to the petitioner, was promoted as per Ext.P12 order issued on 27.6.2013.
3. The petitioner has stated that he had received a show cause notice on 13.2.2013 on the basis of an enquiry report dated 22.06.2004 of the vigilance wing of the KSEB. By this notice the petitioner was required to show cause against the proposal to impose major penalty of removal from service and also recovery of proportionate amount of the loss sustained to the Board, within a period of 15 days. Various charges were stated to have been found against the petitioner in this show cause notice. The show cause notice refers to the charge memo issued on 7.6.2005. It is stated that the Board has enquired into the irregularities and terminated the contractor from W.P(c).No.17329/2013-M 4 the work. It is further stated that since defence statement of the petitioner was not found satisfactory, a personal hearing was conducted on 21.12.2005. Since it was not convincing, another show cause notice was issued against the petitioner and others against the proposal to recover proportionate cost to the tune of Rs.54,584/-. It is stated that none of the 3 delinquents submitted any reply and therefore the full time members decided to refer the matter to full board for appropriate decision and full time board decided to refer the issue to vigilance and anti-corruption bureau for detailed investigation. It is stated that the vigilance submitted their report on 31.3.2011. Referring to the findings in the report of the vigilance and anti-corruption bureau elaborately it was stated that it was proposed to award the punishment of removal as the petitioner had committed very serious irregularities based on which irreparable loss was sustained by the Board by way of unauthorized retention of money and security deposit. The petitioner submitted Ext.P14 explanation answering all points on 4.3.2013. The petitioner submits that there was no further action and that the DPC was convened thereafter.
4. The 1st respondent has filed a counter affidavit stating that the petitioner was chargesheeted for dereliction of duty in respect of construction of a road unauthorisedly through the property; in another case with respect to the installation of a temporary gate at Adit VI of Kakkad HEP and with respect to another incident of awarding additional benefits to a contractor in respect of construction of RCC replacement bridge across tail race channel at W.P(c).No.17329/2013-M 5 Mozhiyar. It is stated that the show cause notice was issued for recovery of a sum of Rs.54,584/-. It is further stated that in the enquiry conducted by the vigilance and anti-corruption bureau it was found that the petitioner is liable to recoup a sum of Rs.1,41,840/- and departmental action was recommended warranting major punishment for the irregularities committed by him. It is stated that there are strong evidences against the petitioner in the statements recorded by the Vigilance and Anti-corruption Bureau. It is also stated that when representation dated 10.5.2013 was placed before the DPC, it was decided to exclude the petitioner from the select list for promotion to the cadre of Deputy Chief Engineer in view of the departmental action initiated against him for imposition of a major penalty of removal from service. It was stated that as per Rule 28(b) (7) Note (ii) of KS&SSR, 1958 the officers, against whom departmental proceedings are taken for imposition of a major penalty, are not liable to be included in the select list.
5. The petitioner has filed a reply affidavit. It is stated that no final orders are passed after the explanation was submitted with respect to the show cause notice.
6. The counter affidavit was filed in the year 2013. It is not stated why the disciplinary proceedings are not finalised though very serious charges were alleged to have been found against the petitioner and a show cause notice was issued in the year 2013, that too, on the basis of a memo of charge issued in the year 2004.
W.P(c).No.17329/2013-M 6
7. Therefore, the Writ Petition is disposed of directing the respondents to finalise the disciplinary proceedings within a period of two months from the date of receipt of a copy of the judgment. In case it is not finalised within the aforesaid period, the petitioner shall be provisionally promoted to the post of Deputy Chief Engineer (Civil).
The Writ Petition is disposed of accordingly.
Sd/- (P.V.ASHA, JUDGE) rtr/ W.P(c).No.17329/2013-M 7 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GRADATION LIST
NO.GR(C)/SL/EE/2010-11
DATED 30-03-2011.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED
15-05-2013.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN WPC NO
29579/2007 DATED 1-2-2008.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS B.O(CM) NO
1365/2008 (LAS 1/12925/2007) DATED 30-
05-2008.
EXHIBIT P5 TRUE COPY OF THE PROCEEDING B.O((FM) NO
276/2013 (ESTT.III/5901/2010) DATED
07-02-2013.
EXHIBIT P6 TRUE COPY OF THE IONTERIM ORDER IN IA NO
1230/2010 IN WPC NO 6719/2008
DATED 30-01-2010.
EXHIBIT P7 TRUE COPY OF THE ORDER IN WPC NO
6719/2008 DATED 17-03-2010.
EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN WPC NO
13037/2013 DATED 24-05-2013.
EXHIBIT P9 TRUE COPY OF THE ORDER B.O(FM) NO
1331/2013 (ESTT.III/CR-RULES/2006) DATED
22-06-2013.
EXHIBIT P10 TRUE COPY OF THE PROCEEDING B.O(FM) NO
1335/2013 (ESTT.III/333/2010)
DATED 22-06-2013.
EXHIBIT P11 TRUE COPY OF THE SELCT LIST B.O(FM) NO
1333/2013(ESTT.III/CR-RULES/2006) DATED
22-6-2013.
EXHIBIT P12 TRUE COPY OF THE PROCEEDING B.O(CM) NO
1395/2013(ESTT.III/5901/2010)
DATED 27-06-2013.
EXHIBIT P13 TRUE COPY OF THE SHOW CAUSE NOTICE NO
VIG./AII/3669/2004/330/15-02-2013 DATED
13-02-2013.
W.P(c).No.17329/2013-M 8
EXHIBIT P14 TRUE COPY OF THE DEFENCE STATEMENT DATED
4-3-2013.
EXHIBIT P15 TRUE COPY OF THE ORDER IN
WP(C).NO.19116/2013(L) DATED 5.9.2013.
EXHIBIT P16 TRUE COPY OF GO(P) NO.65/92/VIG DATED
12.5.1992.
EXHIBIT P17 TRUE COPY OF THE PROCEEDINGS B.O.(CMD)
NO.1288/2014 (ESTT.III/5901/22010) DATED
2.5.2014.