Kerala High Court
M.Mohan vs The Kerala State Electricity Board on 28 December, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
MONDAY, THE 2ND DAY OF JULY 2012/11TH ASHADHA 1934
WP(C).No. 16057 of 2008 (J)
---------------------------
PETITIONER(S):
-------------
M.MOHAN, RETIRED OVERSEER, K.S.E.B.,
MAJOR SECTION, VALLARADA, VALLARADA.P.O
RESIDING, AT MYTHILI, ASRAMAM ROAD
NETTAYAM.P.O., VATTIYOORKAVU, THIRUVANANTHAPURAM.
BY ADVS.SRI.JOHNSON GOMEZ
SRI.S.BIJU (KIZHAKKANELA)
RESPONDENT(S):
--------------
1. THE KERALA STATE ELECTRICITY BOARD
REPRESENTEED BY ITS SECRETARY, VAIDYUTHI BHAVAN
THIRUVANANTHAPURAM.
2. THE CHAIRMAN, KERALA STATE ELECTRICITY
BOARD, VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM.
3. THE EXECUTIVE ENGINEER, KERALA STATE
ELECTRICITY BOARD, ELECTRICAL DIVISION
NEYYATTINKARA, THIRUVANANTHAPURAM.
4. THE DEPUTY CHIEF ENGINEER, KERALA STATE
ELECTRICITY BOARD, ELECTRICAL CIRCLE
THIRUVANANTHAPURAM(RURAL), KATTAKKADA.
5. THE CHIEF ENGINEER, (HRM), KERALA STATE
ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM
THIRUVANANTHAPURAM.
6. V.Y.SREEKUMAR, S/O.VELAYUDHAN V.K.,
N.V.BUNGALOW, VALIAVAZHY, MANCHANCODE P.O
THIRUVANANTHAPURAM.
R1 TO 5 BY ADVS.SRI.K.S.ANIL, SC, KSEB
SRI. ASOK M.CHERIYAN, SC, KSEB
SRI.PULIKOOL ABUBACKER, SC, KSEB
R6 BY ADV. SRI.R.GOPAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28.06.2012, THE COURT ON 02-07-2012 DELIVERED THE FOLLOWING:
VK
WP(C).No. 16057 of 2008 (J)
---------------------------
APPENDIX
--------
PETITIONER'S EXHIBITS
---------------------
EXT.P1. COPY OF THE MEMO OF CHARGES ISSUED BY THE EXECUTIVE ENGINEER,
ELECTRICAL DIVISION, NEYYATTINKARA.
EXT.P2. COPY OF THE ORDER DATED 28.12.2005 PASSED BY THE HON'BLE LOK
AYUKTA IN COMPLAINT NO.1417/2005
EXT.P3. COPY OF ORDER NO.GBI/DISC.CASES/657/2003-04/VLDA/1454 DATED
01.03.2006 PASSED BY THE 3RD RESPONDENT.
EXT.P4. COPY OF THE ORDER NO.GB2-50/06-07 DATED 27.06.2006 ISSUED BY
THE 4TH RESPONDENT.
EXT.P5. COPY OF THE REPLY TO THE SHOW CAUSE NOTICE FILED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT.
EXT.P6. COPY OF THE ORDER NO.GB2/DISC. CASES/50/06/07/4151 DATED
26.07.2006 ISSUED BY THE 4TH RESPONDENT.
EXT.P7. COPY OF THE APPEAL DATED 23.08.2006 SUBMITTED BEFORE THE 5TH
RESPONDENT.
EXT.P8. COPY OF THE ORDER NUMBER EBVS (2) 9/39/2003 DATED 08.05.2007
PASSED BY THE 5TH RESPONDENT.
EXT.P9. COPY OF THE ORDER NUMBER VIG/B.VII/5768/07/2742 DATED
03.10.2007 ISSUED BY THE CHAIRMAN, K.S.E.B.
EXT.P10. COPY OF ORDER BO. (FB) NO.584/08/VIG. B.VII/5768/07) DATED
06.03.2008 ISSUED BY THE SECRETARY, K.S.E.B.
EXT.P11. COPY OF THE ENQUIRY REPORT SUBMITTED BY THE SRI.SURESH KUMAR,
ASSISTANT ENGINEER, ELECTRICAL SECTION, PARASALA.
RESPONDENT'S EXHIBIT :
---------------------
EXT.R1(A). COPY OF THE LETTER DATED 1304.2008.
/ TRUE COPY /
P.A. TO JUDGE
VK
C.K.ABDUL REHIM,J.
-------------------------------
WP(C).NO. 16057 of 2008
---------------------------------
Dated this the 2nd day of July, 2012
JUDGMENT
The petitioner is a retired employee of the 1st respondent Board. While in service the petitioner was suspended on 14.6.2005 pursuant to detection of alleged irregularities in usage of electrical energy at his domestic connection, in a surprise check conducted by the Vigilance and Anti Corruption Bureau of the 1st respondent Board. Ext.P1 statement of allegations and memo of charges was issued with the following three specific charges:
(1) Misused the agricultural service connection taken by you (consumer No.VLDA 7703) by using it for residential purpose. (2) Conducted illegal abstraction of electrical energy by bypassing two phases of the service connection and only a single phase energy meter is installed for the three phase service connection (3) By your above acts you have cheated K.S.E. Board.
WP(C). 16057 /2008 2
2. The 3rd respondent conducted an enquiry through the Assistant Executive Engineer. On the basis of the enquiry report the petitioner was exonerated from all the three charges, as per Ext.P3 order. In the meanwhile the 6th respondent herein, a private individual, had approached the Kerala Lokayukta alleging mal-administration on the part of officials of the 1st respondent Board in not proceeding with the disciplinary action initiated against the petitioner. According to the petitioner, even without issuing any notice to him, the Lokayukta had issued repeated orders directing the authorities to take stringent actions against the petitioner, on the premise that the petitioner had committed theft of energy. The 4th respondent had issued Ext.P4 notice to the petitioner calling upon him for a personal hearing on the basis of the directions issued by the Lokayukta. It is stated in Ext.P4 that the Lokayukta had directed the Board to consider the charges levelled against the petitioner in view of the report of the Vigilance and Anti Corruption Bureau and to pass fresh orders after conducting personal hearing. The petitioner submitted a written statement as per Ext.P5. However WP(C). 16057 /2008 3 the 4th respondent decided to review Ext.P3 order by exercising powers under clause 35 of the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations. It was decided to reconsider the matter after affording an opportunity of hearing to the petitioner. Accordingly Ext.P6 order was issued stating that, after perusal of all the connected documents and after hearing the petitioner it is convinced that the petitioner had committed misuse of energy. The finding is to the effect that, the petitioner had committed misuse of energy supplied for agricultural purposes, for bathing of his milch cows. Conclusion is that, as per the prevailing orders bathing of cows can be treated as agricultural purpose only if there are more than 5 milch cows. The 2nd charge was found to be not sustainable. Since the 1st charge was proved the 4th respondent observed that the allegation of cheating the Board remains partly proved. On the basis of the above said findings, punishment was imposed barring one increment of the petitioner without cumulative effect. The period of suspension was directed to be treated as eligible leave.
WP(C). 16057 /2008 4
3. Aggrieved by Ext.P7 the petitioner filed appeal before the 5th respondent. The appeal petition was rejected through Ext.P8 stating that the petitioner has not adduced any fresh evidence/arguments, worthy for consideration than what he had already submitted, and also observing that the punishment is not excessive considering the gravity of offence committed. The petitioner thereupon submitted a review petition before the 2nd respondent . Through Ext.P9, which is a totally non speaking order, the 2nd respondent decided to modify the punishment as barring of one annual increment without cumulative effect for 6 months, taking a lenient view. Thereafter the petitioner approached the 1st respondent Board requesting to reduce the punishment. The matter was considered by the Board and through Ext.P10 the decision of the 2nd respondent was confirmed. In this writ petition the petitioner is challenging Exts.P6, P8, P9 and P10.
4. The main ground on which the impugned orders are attacked is that, there was no sufficient ground to reopen the matter which was concluded through Ext.P3. The authority and WP(C). 16057 /2008 5 jurisdiction of Lokayukta in directing initiation of fresh proceedings against the petitioner, is seriously disputed. It is contended that, only on the basis of repeated directions issued by the Lokayukta that the impugned orders were passed, in order to avoid further displeasure from the Lokayukta. At the same time it is contended that all such orders were issued by the Lokayukta without affording the petitioner any opportunity to contest. Inter alia the petitioner contended that the vigilance report upon which the Lokayukta had placed reliance, has not been made use of in the enquiry nor any such report was furnished to the petitioner. It is specifically contended that, disciplinary action is a matter which is coming purely within the service jurisprudence, with respect to which the Lokayukta is inherently lacking jurisdiction. Hence it is contended that the 1st respondent ought to have challenged the orders of the Lokayukta, instead of penalising the petitioner in order to avoid further displeasure from the Lokayukta. The petitioner also raises specific challenges against 'locus standi' of the 6th respondent in the matter of approaching the Lokayukta alleging mal-administration on the WP(C). 16057 /2008 6 basis of exoneration of the petitioner in the disciplinary action. It is also contended that the impugned orders are passed only on the basis of enquiry which had already culminated in exoneration of the petitioner. Therefore the finding arrived without conducting any fresh enquiry, on the basis of the same set of facts and materials, is absolutely unsustainable. Yet another contention raised is that, the specific charge was misuse of energy supplied in the agricultural service connection, for residential purpose. But the findings in the impugned orders are to the effect that the misuse was on the basis of detection of usage of water for the purpose of bathing of cows. The petitioner points out that there was no allegation that the petitioner was present anywhere near the scene and even assuming that there is misuse committed by the wife of the petitioner, it is a matter coming purely outside the purview of the service conditions applicable to the petitioner, and no disciplinary action can be sustained on that count.
5. In the counter affidavit of the 1st respondent it is conceded that the disciplinary action was reopened only on the basis of observations made by the Lokayukta. According to the WP(C). 16057 /2008 7 respondent it is only on the basis of the report of the Vigilance and Anti Corruption Bureau regarding misuse of energy for residential purpose, that the punishment was imposed. It is further stated that the power conferred under Regulation 35 was invoked because of the fact that the Lokayukta had termed Ext.P3 as an instance of mal administration. All other contentions raised by the petitioner against the impugned orders are refuted. The petitioner had filed a detailed reply affidavit and produced Ext.P11, copy of the enquiry report.
6. Heard; counsel for the petitioner, Standing Counsel for respondents 1 to 5 and counsel appearing for the 6th respondent.
7. While considering the rival contentions, the prime question arising for decision is as to whether the invoking of clause 35 of the KSEB Employees (Classification, Control and Appeal) Regulations was justified or sustainable. It is admitted case that the Deputy Chief Engineer had exercised the power of review purely based on the repeated directions issued by the Lokayukta and only on the basis of the stringent observations made by the Lokayukta. It is evident that Deputy Chief WP(C). 16057 /2008 8 Engineer, who is the competent authority, has not exercised the power on an independent manner based on evaluation of any facts or materials. A larger question arises as to whether the Lokayukta was justified in issuing such orders/ directions. It is evident that the complainant before the Lokayukta was the 6th respondent, who is a private individual . The issue purely comes within the realm of the service conditions applicable to the petitioner. Can the disciplinary action initiated by the 1st respondent Board against its employee, which culminated in exoneration of the charges, can be questioned by an outsider or a third person before the Lokayukta alleging mal administration, is the question. It is purely within the service jurisprudence, which is purely outside the purview of the jurisdiction vested on Lokayukta. Further it is well settled legal principles that there cannot be any public interest involved in the matter of the service conditions between an employee and employer. Therefore I am inclined to observe that the direction issued by the Lokayukta in this regard was beyond the scope of its jurisdiction. However since any of the orders passed by the WP(C). 16057 /2008 9 Lokayukta is not under challenge in this writ petition, I am not intending to pass any orders nullifying those orders.
8. Notwithstanding sustainability of the directions issued by the Lokayukta, this court has to examine sustainability of the impugned orders. As observed above, the invocation of clause 35 itself was erroneous since the competent authority has not exercised its jurisdiction independently. However, on coming to the merits of the impugned orders it is revealed that no fresh enquiry was conducted after reviewing Ext.P3 order. The authorities at various levels have decided the issue based on the enquiry conducted prior to Ext.P3. Ext.P11 report of enquiry reveals that the petitioner was fully exonerated from all the charges levelled. Nowhere it is evident from Ext.P11 that the alleged report of the Vigilance and Anti Corruption Bureau was made use of in the enquiry. Hence the contention of the petitioner that the reliance placed on such a report is unsustainable, deserves merit. The petitioner was never afforded any opportunity to confront such a report of the Vigilance authorities. Further there is serious discrepancy in WP(C). 16057 /2008 10 between the charges levelled and the findings arrived. It is explicitly clear that the allegation was misuse of energy for residential purpose. But the punishment is imposed on the basis that, during inspection it was found that the petitioner's wife was bathing cows using water pumped out of the agricultural connection. On the other hand, specific findings arrived in Ext.P3 is that there was no misuse of water for residential purpose. In this regard I find substance in the contention that, even assuming that his wife had used water for bathing of cows, whether it will amount to a culpable misuse with knowledge of the petitioner for which disciplinary action can be initiated against the petitioner for cheating the 1st respondent Board. Misuse of energy for any purpose other than for which it is supplied, may attract penal consequence under the provisions of the Kerala State Electricity Act, Supply Code or the Terms and Conditions of Supply. But question remains as to whether it can be made use for initiating disciplinary action against an employee without there being any clear finding that such misuse was made with the consent and knowledge of the employee and WP(C). 16057 /2008 11 with an element of mens rea. Admittedly the usage for bathing of cows will come within the purview of agricultural tariff, if it is a livestock farm having a minimum number of 5 milch cattle. There is absolutely no finding in any of the impugned proceedings about the total number of cattle available in the petitioner's house. The question as to whether the usage of irrigation water for bathing of cows is an unauthorised usage or not, is a matter which has not been considered by any of the authorities. It is pertinent to note that the enquiry report is to the effect that the allegation regarding filling up of water in the storage tank fitted at the top of the house, was clearly found against. That being so, the finding arrived in the impugned orders on a different allegation which was not raised in the memo of charges cannot be sustained at any rate.
9. Under the above mentioned circumstances I am of the view that Exts.P6, P8, P9 and P10 are unsustainable. Hence the writ petition is allowed and Ext.P6, P8, P9 and P10 orders are hereby quashed. However, the findings in the impugned orders regarding regularisation of the period of suspension is upheld. WP(C). 16057 /2008 12
10. Needless to say that the petitioner will be eligible to get his benefits if any to be re-worked based on this judgment. The appropriate authority in the 1st respondent shall take necessary steps in this regard, if approached, without any further delay.
C.K.ABDUL REHIM, JUDGE
pmn/
WP(C). 16057 /2008 13