Kerala High Court
N.K.Muraleedharan Nair vs Kerala State Electricity Board on 24 August, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE S.SIRI JAGAN
MONDAY,THE 9TH DAY OF DECEMBER 2013/18TH AGRAHAYANA, 1935
WP(C).No. 5286 of 2004 (D)
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PETITIONER:
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N.K.MURALEEDHARAN NAIR,
SUB ENGINEER, ELECTRICAL MAJOR SECTION
PATHANAMTHITTA.
BY ADVS.SMT.V.P.SEEMANTHINI (SR.)
SMT.VEENA.B.KUMAR
RESPONDENT(S):
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1. KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM
THIRUVANANTHAPURAM.
2. THE CHAIRMAN,
KSEB, PATTOM, THIRUVANANTHAPURAM.
3. THE EXECUTIVE ENGINEER,
ELECTRICAL DIVISION, PATHANAMTHITTA.
4. THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SUB DIVISION, PATHANAMTHITTA.
R,R1TO4 BY ADV. SRI.A.SUDHI VASUDEVAN, SC, KSEB
R,R1TO4 BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB
R1 BY ADV. SRI.P.SANTHALINGAM (SR.)
R1 BY ADV. SRI.S.SHARAN,SC,K.S.E.BOARD
R BY SRI.P.SANTHALINGAM, SC, KSEB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09-12-2013,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 5286 of 2004 (D)
APPENDIX
PETITIONERS EXHIBITS
EXT.P1:- TRUE COPY OF THE MEMO OF CHARGES DATED 24.8.2000 ISSUED
BY THE 2ND RESPONDENT.
EXT.P1(a): - TRUE COPY OF THE STATEMENT OF ALLEGATIONS FORWARDED
ALONG WITH THE MEMO OF CHARGES.
EXT.P2:- TRUE COPY OF THE REPLY DATED 3.10.2000, SUBMITTED
BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXT.P3:- TRUE COPY OF THE PROCEEDINGS DATED 24.10.2001 ISSUED BY
THE 2ND RESPONDENT.
EXT.P4:- TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE
PETITIONER BEFORE THE LEGAL ADVISOR AND DISCIPLINARY OFFICER
OF THE BOARD DATED 27.7.2002
EXT.P5:- TRUE COPY OF THE ENQUIRY REPORT OF THE ENQUIRY OFFICER
DATED 21.8.2003.
EXT.P6:- TRUE COPY OF THE SHOW CAUSE NOTICE DATED 22.7.2003 ISSUED
BY THE 2ND RESPONDENT TO THE PETITIONER.
EXT.P7:- TRUE COPY OF THE REPLY DATED 5.9.2003 SUBMITTED BY
THE PETITIONER.
EXT.P8:- TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 2ND
RESPONDENT DATED 6.12.2003.
RESPONDENTS EXHIBITS NIL
//TRUE COPY//
PA TO JUDGE
rmm
S.Siri Jagan,J.
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W.P.(C).No.5286 of 2004
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Dated this, the 09th day of December, 2013.
J U D G M E N T
The petitioner was the Sub Engineer in Pathanamthitta Electrical Division of the Kerala State Electricity Board. During his tenure as Sub Engineer, the power cut was in force in the State of Kerala . For enforcing the power cut, it was necessary to fix the quota for consuming power in excess of 10KW for industrial consumers. On the allegation that in respect of two consumers, the petitioner did not report the fact that quota had not been fixed for the two consumers and the petitioner failed to take meter reading of the consumers promptly, resulting in loss to the KSEB, disciplinary proceedings were initiated against the petitioner as per Ext.P1 memo of charges and statement of allegations. The petitioner filed explanation disclaiming any liability in respect of the charges levelled against him. On the ground that the explanation was unsatisfactory, a disciplinary enquiry was initiated against the petitioner and others, who were alleged to be jointly involved in the commission of the W.P.(c).No.5286 of 2004 : 2 : misconduct. It resulted in Ext.P5 report of the Enquiry Officer, in which the petitioner was found guilty of failure to report to his superiors about the non-fixing of quota to Consumer Nos.7691 and 7839, connected load of whom was above 10KW and thereby causing loss of revenue to tune of Rs.1,83,651/-. But, he was found not guilty of the charge that he failed to take promptly the meter reading of Consumer Nos.7691 and 7839. On the basis of Ext.P5 enquiry report, show cause notice was issued to him for imposition of punishment. He filed Ext.P7 explanation, disclaiming any misconduct on his part, despite which, Ext.P8 order was passed, directing recovery of Rs.36,731/-, which was the share of the petitioner, out of the total loss caused to the Board on account of the joint misconduct of seven officers. The petitioner is challenging Ext.P8 order imposing on him the punishment of recovery of loss, allegedly caused to the Board. The petitioner seeks the following reliefs:
"a) to issue a writ of certiorari or other appropriate writ, order or direction to quash Exts.P6 and P8 orders;
b) to issue a writ of mandamus or other appropriate writ order or direction directing the 3rd respondent not to take steps for effecting the recovery pursuant to Ext.P8 order from the salary of the petitioner.W.P.(c).No.5286 of 2004 : 3 :
c) to pass such other and further orders as are deemed just and necessary in the facts and circumstances of the case."
2. The counsel for the petitioner would submit that the enquiry report itself is proof enough of the fact that the petitioner is not guilty of the misconducts alleged against him in the charge memo. That being so, the imposition of punishment for a misconduct which has not been committed by him is perverse and is liable to be set aside is the contention raised.
3. The counsel points out that the finding of the enquiry officer as against the petitioner is that petitioner failed to report to his superiors about the non-fixing of two quotas to Consumer Nos.7691 and 7839 to whom connected load was above 10KW thereby causing loss of revenue to the tune of Rs.1,83,651/-. But in the enquiry report itself the enquiry officer has entered a finding that Shri.M.Sasidharan Unnithan, the Assistant Executive Engineer, of the Electrical Major Section had forwarded Ext.P2 list of the commercial consumers and non-domestic consumers having connected load above 10KW to the Executive Engineer, vide his letter dated 22/1/1996 and the said list contains the details of the W.P.(c).No.5286 of 2004 : 4 : consumers in question also. It is further found therein that the Executive Engineer, by Ext P3 list, fixed the quota of the consumers in Ext.P2 including the disputed 5 consumers. On that ground, Sri.Sasidharan Unnithan was found to be not guilty of the allegations levelled against him. That finding would indirectly apply to the petitioner also, insofar as when the Assistant Executive Engineer had already fixed the quota for the two consumers having Consumer Nos.7691 and 7839, there does not arise any failure on the part of the petitioner to report to his superiors about the non-fixing of quota of the consumers, is the contention raised.
4. The Senior Standing Counsel for the Electricity Board would contend that the charge as such may not have been found to have been proved, but it has been proved with clear evidence that the petitioner was guilty of dereliction of duty, insofar as he had, subsequent to the fixation of quota, taken meter readings as if no quota has been fixed. Therefore, there is nothing perverse in Ext.P8 is the contention raised.
5. I have considered the rival contentions in detail.
6. The charge contained in Ext.P1 charge sheet issued to W.P.(c).No.5286 of 2004 : 5 : the petitioner is as follows:
"Being the Sub Engineer of the section during the power cut period 1996-97, you failed to take promptly the meter readings of Consumer Nos.7691 and 7839 (Hotel Dolphin and Hotel Heydey respectively) and to report to the superiors about the non-fixing of quota to the above consumers for whom the connected load was above 10KW and thereby caused loss of revenue to the tune of Rs.3,76,017/- (Rupees Three lakhs seventy six thousand and seventeen only) to the Board."
7. The finding in Ext.P5 enquiry report in respect of the petitioner reads as follows:
"In the light of my findings on point No.6,7,8 and
10. I find that prosecution has succeeded in proving that Sri.N.K.Muraleedharan failed to report to his superiors about the non fixing of quota to consumer Nos.7691 and 7839 to whom connected load was above 10KW and there by caused loss of revenue to the tune of Rs.1,83,651/- (the findings regarding financial loss is subject to the decision in the Ops pending before the Hon'ble High Court). The first part of the charge that he failed to take promptly the meter reading of consumer Nos.7691 and 7839 is not proved. So the charge against Sr.N.K.Muraleedharan is partly proved to the extend stated above and he is found guilty to the extend of the charge proved."
The findings in Ext.P5 enquiry report against the petitioner is that the petitioner failed to report to his superiors about the non-fixing of quota to Consumer Nos.7691 and 7839, to whom connected load was above 10KW and thereby he caused loss of revenue to the tune of Rs.1,83,651/-. The petitioner can be found guilty of that charge only if on account of failure of the petitioner to report W.P.(c).No.5286 of 2004 : 6 : to his superiors about the non-fixing of quota, quota was not fixed for the two consumers in question. But in respect of the charge against M.Sasidharan Unnithan, the Assistant Executive Engineer, who was also proceeded against in the same proceedings by the very same enquiry report, the enquiry officer found as follows:
"Sri.M.Sasidharan Unnithan was the Assistant Executive Engineer of the Electrical Major Section, Pathanamthitta during the time when the power cut was imposed. It is seen that he has forwarded Ext.P2 list of the commercial consumers and non domestic consumers having connected load above 10KW to the Executive Engineer vide his letter dated 22.01.1996. The said list contains the details of the 5 consumers in question. The Executive Engineer vide Ext.P3 list fixed the quota of the consumers in Ext.P2 including the disputed 5 consumers. So the first charge against Sr.Sasidharan Unnithan is not valid and is sustainable. Point so found."
That finding proves, without any doubt whatsoever, that quota was in fact fixed for all the 5 consumers including consumer Nos.7691 and 7839, whose meter readings were being taken by the petitioner. That finding categorically shows that quota was actually fixed for the 2 consumers as well. If quota has been so fixed, the question of non-fixation of quota and the petitioner's failure to report to his superiors about the non-fixing of quota, does not arise.
W.P.(c).No.5286 of 2004 : 7 :
8. As far as the contention raised by the Standing Counsel for the board is concerned, it is trite law that a delinquent cannot be found guilty of a charge which has not already been put to him. The charge put to the petitioner is that he failed to report his superiors about the non-fixing of quota to consumer Nos.7691 and 7839. When the Enquiry Officer himself found that quota was actually fixed, there is no question of the petitioner being found guilty of failure to report his superiors about non-fixing of quota. That being so, the finding of the enquiry officer that the petitioner is guilty of non-reporting to his superiors about the non-fixing of quota to consumer numbers in question and his being punished for the said misconduct, does not arise and consequently the action of the respondents in punishing the petitioner for a different misconduct not included in the memo of charges and never put to the petitioner is clearly perverse. Therefore, Ext.P8 is unsustainable in law. Consequently, Ext.P8 is quashed.
9. The counsel for the petitioner submits that this court had passed an order originally suspending the recovery steps pursuant to Ext.P8 against the petitioner for a period of 4 months. Although, subsequently, the period of stay expired, the stay was W.P.(c).No.5286 of 2004 : 8 : received and extended until further orders on 05.10.2006. But, despite the same, the amounts sought to be recovered as per Ext.P8 was recovered in installments from the petitioner's salary. If that be so, the petitioner is entitled to refund of that amount. Accordingly, the respondents are directed to refund the amount recovered from the petitioner with 6% interest from the date of recovery till date of refund.
Accordingly, the writ petition is allowed as above.
Sd/-
S. Siri Jagan, Judge.
Bb