Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 30TH DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 WP(C) NO.27257 OF 2020 PETITIONER :- N.VASAVAN, AGED 56 YEARS S/O.NARAYANAN, DEPUTY CHIEF ENGINEER (RETD.), KERALA STATE ELECTRICITY BOARD LIMITED (KSEB LIMITED), RESIDING AT ABHAYAM, 12TH MILE, PALA P.O., KOTTAYAM - 686 575. BY ADVS. K.JAJU BABU (SR.) M.U.VIJAYALAKSHMI T.S.ATHIRA RESPONDENTS :-
1 THE KERALA STATE ELECTRICITY BOARD LIMITED (KLEB LIMITED), VYDYUTHI BHAVAN, THIRUVANANTHAPURAM - 695 004 REPRESENTED BY ITS SECRETARY. 2 THE CHARIMAN AND MANAGING DIRECTOR KERALA STATE ELECTRICITY BOARD LIMITED (KSEB LIMITED), VYDYUTHI BHAVAN, THIRUVANANTHAPURAM - 695 004. 3 THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD LIMITED (KSEB LIMITED), VYDYUTHI BHAVAN, THIRUVANANTHAPURAM - 695 004. BY ADVS. ASOK M.CHERIAN N.SATHEESH K.S.ANIL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.10.2022, ALONG WITH WP(C).9721/2021, THE COURT ON 30.11.2022 DELIVERED THE FOLLOWING: -: 2 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN WEDNESDAY, THE 30TH DAY OF NOVEMBER 2022 / 9TH AGRAHAYANA, 1944 WP(C) NO. 9721 OF 2021 PETITIONER :-
AUGUSTINE K.C., RETIRED ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SUB DIVISION, MANARCAD, KOTTAYAM DISTRICT, RESIDING AT THAMARASSERIL HOUSE, AYARKUNNAM P.O., KOTTAYAM DISTRICT, PIN - 686 564. BY ADVS. S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SHRI.VISHNU V.K. KUM.ABHIRAMI K. UDAY SHRI.KURUVILLA SABU CHRISTY
RESPONDENTS :- 1 KERALA STATE ELECTRICITY BOARD LTD. VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004, REPRESENTED BY ITS SECRETARY. 2 CHAIRMAN AND MANAGING DIRECTOR KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. 3 CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, PIN - 695 004. -: 3 :- 4 EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL DIVISION, PALLOM, PAKKIL P.O., KOTTAYAM DISTRICT, PIN - 686 012. BY ADVS. SRI.ASOK M.CHERIAN SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.10.2022, ALONG WITH WP(C).27257/2020, THE COURT ON 30.11.2022 DELIVERED THE FOLLOWING: -: 4 :-
JUDGMENT
[WP(C) Nos.27257/2020 & 9721/2021] Dated this the 30th day of November, 2022 The dispute raised in these writ petitions is with regard to fixation of liability on retired employees of the Kerala State Electricity Board Limited (for short, 'the KSEBL').
2. The petitioner in W.P.(C) No.27257/2020 retired from service on 31.10.2020. While he was working as
Assistant Executive Engineer, Electrical Major Section, Ayarkunnam there were allegations with regard to theft of electrical energy by one High Tension consumer M/s.Matha Roller Flour Mills Private Limited. The energy was supplied to the said consumer through a Time - of Day meter (for short, 'the TOD meter') installed by the Transformer and Meter Testing and Repairing Division (for short, 'the TMR Division') of the KSEBL. It is stated that the Assistant Engineer of the Electrical Major Section was authorised only to take the meter readings and installation, maintenance, testing and repairing
are permissible only by the TMR Division. In an inspection conducted by the TMR Division on 22.10.2002 in the premises -: 5 :- of the said HT consumer, the meter showed an error and the meter was declared as faulty. On the very next day, the meter was replaced and on 25.10.2002, the original TOD meter was surrendered by the consumer. These facts were reported by the Executive Engineer to the Deputy Chief Engineer by Ext.P2
letter. Thereafter, the petitioner, who was the Assistant Executive Engineer as well as the petitioner in the connected writ petition, who was the Sub Engineer in charge of Assistant Engineer were charge sheeted on 13.10.2004. An enquiry was conducted into the charges and Ext.P3 enquiry report was generated. Thereafter, by Ext.P4 proceedings, a punishment of bar of one increment without cumulative effect was inflicted on
the petitioner. In Ext.P4, it was stated that the Board had sustained a loss of Rs.24,65,103/-. After remitting Rs.5,00,000/-, the consumer had filed W.P.(C) No.22971/2003 before this Court. Since both the crime cases and writ petitions were pending, the Board reserved the right to realise any further liability from the petitioner which may arise in connection with the verdict of the court of law. -: 6 :-
3. It is submitted that the writ petition was
subsequently dismissed as withdrawn on 16.12.2011. The criminal case referred to, that is, C.C. No.747/2004, in which the petitioners herein were not even cited as witnesses, also ended in acquittal by Ext.P6 judgment dated 27.4.2012. However, by Ext.P8 proceedings, a show cause notice was issued to the petitioner proposing recovery of an amount of Rs.38,76,506/- being 50% of the loss occasioned to the KSEBL
with interest as on 13.10.2015. Ext.P8 states that after withdrawal of the writ petition, the Board had issued notice to the consumer demanding an amount of Rs.1 Crore which was refuted by the consumer in the light of Ext.P6 judgment in the criminal case. It appears that it was in the above circumstances that the entire liability was sought to be mulcted on the petitioners herein.
4. Ext.P9 reply was submitted to the show cause notice.
Nothing was done thereafter. The petitioner again approached the respondents with Ext.P11 representation dated 26.6.2020. But, the non-liability certificate to draw pension and other -: 7 :- retirement benefits have not been issued to the petitioner so far on the ground that the petitioner has to remit the amount as stated in Ext.P8. Thereafter, Ext.P1 order was passed on 20.10.2020 ordering to recover an amount of Rs.38,76,506/- along with interest.
5. In W.P.(C) No.9721/2021, the petitioner was the Sub
Engineer in charge of Assistant Engineer under the Electrical Section, Ayarkunnam, who was also charge sheeted on 13.10.2004 with regard to the dereliction of duty in the case of theft of electrical energy by M/s.Matha Roller Flour Mills Private Limited. He was also subjected to the disciplinary proceedings and Ext.P7 order was passed finalising the disciplinary proceedings, imposing the punishment of barring of one increment without cumulative effect. Though an appeal
was preferred against the same, the punishment was confirmed. The petitioner therein, thereafter retired from service in 2013 and was granted all pensionary benefits as well. However, Ext.P11 show cause notice was issued on
9.12.2015 proposing recovery of the amount of Rs.38,76,506/-. -: 8 :-
It is submitted that the Executive Engineer of the Electrical Division, Pallom and the Deputy Chief Engineer, Kottayam had also been charge sheeted, but the disciplinary action initiated against them was dropped by Exts.P19 and P20 proceedings. It is further contended that the petitioner had been deputed for training in TOD meters only on 02.01.2013 and that there is absolutely no whisper of any complicity of the petitioner in the matter. The petitioner therefore prays for quashing Exts.P13 and P14 proceedings and for a declaration that no liability can be fixed against him on the strength of the said proceedings.
6. The learned Senior Counsel for the petitioner in
W.P.(C).No.27257/2020 and the learned counsel for the petitioner in W.P.(C).No.9721/2021 would contend that the show cause notice issued to the petitioners for recovery of amounts from them is completely illegal and unfounded. It is submitted that the petitioners had been subjected to a full disciplinary proceedings wherein the charge with regard to causing loss to the Board was specifically considered and
found against by the Enquiry Officer. Reliance is placed on -: 9 :- Ext.P3 enquiry report produced along with W.P.(C).No. memos including a charge of having caused financial loss to the Board. In the case of the petitioner in W.P.(C).No.27257/ 2020, the finding of the Enquiry Officer on the said charge is as follows :- “Charge.6- Though financial loss had occurred to the Board the prosecution could not adduce any evidence to place the responsibility solely on the accused. Hence, this charge is not proved.” Whereas, in the case of the petitioner in W.P.(C). No.9721/ 2021, the finding on charge No.6 is “not proved”. While issuing notice to the petitioners on the enquiry report, the
disciplinary authority accepted the report in toto. The reservation in the orders imposing penalty of bar of one increment without cumulative effect was that the Board reserves the right to realise any further liability which may arise in connection with the verdict of the court of law. The two matters pending at the relevant time were apparently C.C. No.747/2004 before the Judicial First Class Magistrate Court,
Kanjirappilly and W.P.(C).No.22971/2003. The writ petition -: 10 :- was dismissed as withdrawn on 16.12.2011 while the criminal case ended in acquittal of the accused therein who were the competent persons representing the High Tension consumer. A reading of the show cause notice would show that there has been no fixation of any liability on the petitioners in a manner known to law.
7. The charge raised against the petitioners with
regard to causing of loss to the Board had been examined in a disciplinary proceedings at the instance of the Board and an enquiry report was generated holding that the said charge had not been proved. The enquiry report having been accepted in toto by the disciplinary authority, any further imposition of liability on the delinquents as reserved in the order imposing penalty could have been only after fixing the liability in a manner known to law. The statements in Ext.P8 show cause notice with regard to the loss and liability by itself cannot amount to any fixation of liability as against the petitioners.
8. A finding of loss caused to the Board can be sustained only in case a competent court of law had found that -: 11 :-
such loss had been caused or at least a finding that the petitioners in these writ petitions were responsible for such loss in competent disciplinary proceedings. Recovery of loss caused to the employer has to be based on findings either in judicial proceedings or in departmental proceedings to make such amounts recoverable from the retirement benefits due to retired employees.
9. The petitioner in W.P.(C). No.9721/2021 had
already retired from service in 2013 and had been sanctioned with all his retirement benefits. In the light of the provisions of Rule 3 of Part III Kerala Service Rules, I am of the opinion that the proceedings now initiated against him for recovery of amounts on account of loss caused to the Board which was specifically found to have been not proved in a competent enquiry proceedings is bad in law.
10. With regard to the petitioner in W.P.(C). No.27257/
2020 also, he had faced a full disciplinary proceedings and was exonerated of the charge of having caused loss to the Board. The action of the Board in seeking to inflict an imaginary -: 12 :- liability because the same could not be realised from the consumer due to the exoneration of the consumer in a criminal case, according to me, is completely untenable and is against the specific provisions of the Service Rules with regard to pensionary benefits and fixation of liability.
11. A reading of Ext.P8 notice would show that the respondents are seeking to recover amounts caused as loss to
the Board. However, it is clear that no such loss has been found to have been caused to the Board in any competent proceedings or even in any disciplinary proceedings initiated by the Board. The right reserved in the order imposing penalty was specifically to recover the loss, if any, to be found in such competent proceedings. If that be so, in the absence of any finding with regard to loss having been caused to the Board by the employees in any proceedings, the respondents would be disabled from attempting to recover such loss.
In the above circumstances, I am of the opinion that the writ petitions are liable to succeed. Exts.P13 and P14 in W.P.(C).No.9721/2021 are set aside. It is declared that the -: 13 :- respondents cannot recover any amounts from the pensionary benefits due to the petitioner in the absence of any competent finding by a court of law that there has been a loss occasioned to the Board and that the petitioner is responsible for the same. In W.P.(C) No.27257/2020, Exts.P1 and P8 are set aside. There will be a direction to the respondents to immediately issue the non-liability certificate to the petitioner and to take appropriate steps to see that all pensionary benefits are computed and paid to the petitioner within a period of three months from the date of receipt of a copy of this judgment. These writ petitions are ordered accordingly. Sd/- ANU SIVARAMAN JUDGE Jvt/NP -: 14 :- APPENDIX OF WP(C) 27257/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER NO.VIG/B2/1017/2002/3409 DATED 20/10/2020 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE LETTER NO.DB.33/2002-03/295 DATED 26/10/2002 OF THE EXECUTIVE ENGINEER TO THE DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE, KOTTAYAM.
EXHIBIT P3 TRUE COPY OF THE RELEVANT EXTRACT OF THE ENQUIRY REPORT DATED 26/5/2006 ISSUED BY THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, ATTINGAL. EXHIBIT P4 TRUE COPY OF THE ORDER VIDE NO.EBVS.4/52/2004/1757 DATED 21/8/2008 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE STATUS REPORT OF THIS HON'BLE COURT DATED 16/12/2011 RELATING TO WP(C) NO.22971/2003. EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 27/4/2012 IN CC NO.747/2004 OF THE JUDICIAL 1ST CLASS MAGISTRATE- I, KANJIRAPPALLY. EXHIBIT P7 TRUE COPY OF THE PROCEEDINGS VIDE NO.PA VII/PPO 40400 DATED 2/6/2014 OF THE 3RD RESPONDENT. EXHIBIT P8 TRUE COPY OF THE SHOW CAUSE NOTICE VIDE NO.VIG/BII/1017/2002/2585 DATED 9/12/2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P9 TRUE COPY OF THE REPLY DATED 30/12/2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P10 TRUE COPY OF THE PROCEEDINGS VIDE NO.PA.VII/PPO NO.40400 DATED 28/12/2016 OF THE 1ST RESPONDENT (ACCOUNTS OFFICER). -: 15 :- EXHIBIT P11 TRUE COPY OF THE REQUEST DATED 26/6/2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P12 TRUE COPY OF THE DISCHARGE SUMMARY DATED EXHIBIT P13 COPY OF THE REQUEST DATED 07.02.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P14 COPY OF THE CONSENT LETTER DATED 08.02.2021 IN FAVOUR OF THE PETITIONER. EXHIBIT P15 TRUE COPY OF THE ORDER VIDE (CMD)No.369/2021 (ESTT.VIII/506/2021) DATED 16.03.2021 FORWARDED BY THE BOARD SANCTIONING PENSION TO THE PETITIONER. EXHIBIT P16 TRUE COPY OF THE STATEMENT SHOWING CALCULATION OF PENSION INCLUDING CALCULATION OF AVERAGE EMOLUMENTS OF THE PETITIONER. -: 16 :- APPENDIX OF WP(C) 9721/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE MEMO OF CHARGES NO.EBVS.4/52/04/1503 DATED 13/10/2004 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE REPLY DATED 24/12/2004 SUBMITTED BY THE PETITIONER TO EXT.P1. EXHIBIT P3 TRUE COPY OF THE LETTER DATED 22/10/2002 OF THE
ASSISTANT ENGINEER, TMR DIVISION, PALLOM, ADDRESSED TO THE ASSISTANT ENGINEER, ELECTRICAL MAJOR SECTION, AYARKUNNAM.
EXHIBIT P4 TRUE COPY OF THE SHOW CAUSE NOTICE NO.EBVS.4/52/2004/735 DATED 12/10/2006 ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT. EXHIBIT P5 TRUE COPY OF THE SUBMISSION DATED 01/11/2006 OF THE PETITIONER REQUESTED THE 3RD RESPONDENT. EXHIBIT P6 TRUE COPY OF THE LETTER NO.GB1/EBVS/4/52/2004 DATED 05/01/2007 OF THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PALLOM, ALONG WITH ITS ENCLOSURES. EXHIBIT P7 TRUE COPY OF THE ORDER NO.EBVS.4/52/2004/756 DATED 21/08/2008 OF THE 3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE ORDER
NO.VIG/BII/BV/1017/2002/1370 DATED 17/06/2009 OF THE CHAIRMAN OF THE BOARD. EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 16/12/2011 IN WP(C) NO.22971/2003 OF THIS HON'BLE COURT. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 27/04/2012 IN C.C.747/2004 OF THE JFCM-I, KANJIRAPPALLY. -: 17 :- EXHIBIT P11 TRUE COPY OF THE NOTICE NO.VIG/BII/1017/2002/ 2584 DATED 09/12/2015 OF THE 2ND RESPONDENT. EXHIBIT P12 TRUE COPY OF THE DETAILED REPLY DATED EXHIBIT P13 TRUE COPY OF THE ORDER NO.VIG/B2/1017/2002/3410 DATED 20/10/2020 OF THE 2ND RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE LETTER NO.EB7/PPO-40400/2020- EXHIBIT P15 TRUE COPY OF THE G.O.(P) NO.192/2018 DATED EXHIBIT P16 TRUE COPY OF THE LETTER NO.VIG/AAO&PIO/53/2020-
INFORMATION OFFICER OF THE BOARD. EXHIBIT P17 TRUE COPY OF THE MEMO OF CHARGES NO.VIG/BII/BV/1017/02 DATED 08/09/2004 ISSUED TO SRI.K.RAMACHANDRAN NAIR. EXHIBIT P18 TRUE COPY OF THE MEMO OF CHARGES NO.VIG/BII/BV/1017/02 DATED 08/09/2004 ISSUED TO SRI.M.J.ANDREWS. EXHIBIT P19 TRUE COPY OF THE NO.VIG.BII/BV/1017/02 DATED TO SRI.K.RAMACHANDRAN NAIR. EXHIBIT P20 TRUE COPY OF THE NO.VIG.BII/BV/1017/02 DATED TO SRI.M.J.ANDREWS. EXHIBIT P21 TRUE COPY OF THE ATTENDANCE CERTIFICATE DATED JOINT DIRECTOR (TRAINING)OF THE REGIONAL POWER TRAINING INSTITUTE, PALLOM.