Partly allowed

K.Muraleedharan Pillai v. Kerala State Electricity Board

Kerala HC28 Nov 2016WP(C)/23536/2013

Case brief

AI extract

What is this about?

The Court set aside impugned orders dismissing the petitioner's appeal and revision regarding disciplinary punishment. It directed the First Appellate Authority to re-examine the appeal, focusing on the petitioner's inability to cross-examine witnesses, within two months.

What did the court decide?

Exts. P8 and P10 orders set aside. Second respondent directed to reconsider Ext. P7 appeal, hearing petitioner, and pass orders within two months.

K.Muraleedharan Pillai Vs Kerala State Electricity Board — Service and Employment | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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MONDAY, THE 28TH DAY OF NOVEMBER 2016/7TH AGRAHAYANA, 1938

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WP(C).No. 23536 of 2013 (N)

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PETITIONER(S) :

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K.MURALEEDHARAN PILLAI, ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, 110 KV SUB STATION, THIRUMALA, ARAMADA P.O., THIRUVANANTHAPURAM.

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BY DR.K.P.SATHEESAN (SENIOR ADVOCATE) ADVS. SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI.S.VIBHEESHANAN

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RESPONDENT(S) :

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1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE CHAIRMAN, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.

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2. THE CHIEF ENGINEER (H.R.M), KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM-695 004.

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3. THE DEPUTY CHIEF ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, KOTTARAKARA, KOLLAM DISTRICT.

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BY ADV. SMT.A.G.ANEETHA, S.C

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 23536 of 2013 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXT.P1	TRUE COPY OF THE MEMO OF CHARGES ALONG WITH STATEMENT OF ALLEGATIONS GIVEN TO THE PETITIONER BY THE 3RD RESPONDENT DATED 19/10/2009.
EXT.P2	TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE FILED BY THE PETITIONER DATED 26/11/2009.
EXT.P3	TRUE COPY OF THE ENQUIRY REPORT GIVEN BY THE EXECUTIVE ENGINEER, ELECTRICAL CIRCLE, KOTTARAKARA DATED 07/05/2011.
EXT.P4	TRUE COPY OF THE SHOW CAUSE NOTICE GIVEN TO THE PETITIONER BY THE 3RD RESPONDENT DATED 03/08/2011.
EXT.P5	TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER AGAINST EXT.P4 DATED 22/09/2011.
EXT.P6	TRUE COPY OF THE ORDER NO.GB2/DIS-PRO/ES.KDRA/ 2012-13/203 DATED 11/5/2012 PASSED BY THE 3RD RESPONDENT.
EXT.P7	TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 21/05/2012.
EXT.P8	TRUE COPY OF THE ORDER NO.EBVS.8/11/2012/449 DATED 13/05/2013.
EXT.P9	TRUE COPY OF THE MEMORANDUM OF APPEAL FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 01.06.2013.
EXT.P10	TRUE COPY OF THE ORDER NO. VIG/A IV/5280/05/1683 DATED 16.08.2013.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

ANU SIVARAMAN, J.

W.P.(C) No.23536 of 2013

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Dated this the 28^th day of November, 2016

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JUDGMENT

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This writ petition is filed challenging Exts.P6, P8 and

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P10 orders, passed in disciplinary proceedings against the petitioner. While he was working as Assistant Engineer in Manjeri, he had been served with Ext.P1 memo of charges alleging that the petitioner, while working as an Assistant Engineer in Kerala State Electricity Board at Kundara, during the period from 29.12.2004 to 15.07.2006, had been in the habit of accepting bribes.

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The petitioner submits that the Vigilance Wing of

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the K.S.E.B. had received certain petitions raising these allegations against the petitioner. It is stated that though the records of such complaints had been forwarded to the Deputy Superintendent of Police, Vigilance and Anti Corruption Bureau, after quick verification, further action was dropped and no enquiry had been initiated against the petitioner. The

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petitioner submits that pursuant to Ext.P1, he had preferred a detailed reply, pointing out all these aspects.

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However, the reply was not accepted, and an Enquiry Officer was appointed. Ext.P3 is the enquiry report. The petitioner contends in the writ petition that the enquiry was conducted in a completely biased and one sided manner and that the defacto complainants had been examined and statements were taken, without even allowing him to participate in the proceedings. He contends that no opportunity had been given to him to cross examine the said witnesses. He further contends that Ext.P4 show cause notice was issued to the petitioner on 03.08.2011. The copy of the enquiry report was not forwarded along with Ext.P4. Thereafter, it was subsequently furnished to the petitioner on 06.09.2011, and he was directed to show cause against the proposed punishment before 30.09.2011. The petitioner again preferred Ext.P5, stating that the enquiry officer had based his conclusions solely on the statement recorded by the vigilance

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wing of the KSEB, and that he was not allowed to cross examine any of the witnesses, whose oral testimony was relied upon by the enquiry officer.

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By Ext.P6 order dated 11.05.2012, these

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objections raised by the petitioner were brushed aside, and a penalty of barring of one increment with cumulative effect for one year was imposed with a further direction not to post him in the Distribution Wing of the KSEB in future. The petitioner preferred Ext.P7 appeal, raising contentions to the effect that he was not given a proper opportunity to contest his case, and that evidence had been recorded from defacto complainants, while he was not even permitted to be present in the room. He also stated that he was not given an opportunity to cross-examine the witnesses. However, by Ext.P8 order dated 13.05.2013, his appeal was also dismissed, stating that he had not put forth any point for the consideration. Though Ext.P9 revision was attempted against Ext.P8 before the Board, but Ext.P10 order was issued by the Board, also upholding

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punishments. The petitioner challenges the said orders.

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Heard the learned Senior counsel for the

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petitioner and the learned Standing counsel appearing for the respondent Board.

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It is contended by the learned Senior counsel appearing for the petitioner, that the enquriy held against the petitioner was completely vitiated, since he was not given an opportunity to cross examine the witnesses and the oral testimony of the defacto complainant, was recorded by the enquiry officer, has been relied upon almost exclusively to find him guilty. He further contends that the issuance of the enquiry report to the petitioner on his own request, long after the show cause notice was issued to him, does not satisfy the requirement of issuance of a show cause notice with a copy of

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the enquiry report, as is provided in the rules which are applicable. It is further contended that no personal hearing was given to him, either by the Appellate Authority or the revisional authority and his contentions as regards the

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W.P.(C) No.23536 of 2013

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violation of principles of natural justice in the conduct of

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enquiry have not been considered by any of the authorities.

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The learned Standing Counsel appearing for the Board would submit that the rules relating to disciplinary enquiries applicable to employees of the Kerala State Electricity Board are the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations (hereinafter referred to 'the Regulations' for short) issued under Board order dated 31.01.1969. It is contended that all the procedure prescribed in Rule 16 thereof for the imposition of major penalty had been complied with, while passing the order of penalty. It is further stated that no prejudice has been caused to the petitioner by the non-supply of the enquiry report, along with the copy of the show cause notice, since copy of the enquiry report was forwarded to the petitioner, albeit on his request, before the date when he was required to given his reply. It is further stated that since the petitioner was aware of the contents of the enquiry report before he

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submitted his reply, no prejudice can be said to have been caused to him and therefore the imposition of penalty, which was reduced as bar of one increment with cumulative effect for one year, by the disciplinary authority was well in order. It is contended that the petitioner had not raised any valid grounds against the imposition of penalty in the appeal or in the second appeal preferred by him and therefore, Exts.P8 and P10 orders are also in order.

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I have considered the contentions raised on either side. It is the specific contention raised by the petitioner that he was not permitted to cross examine the witnesses, whose oral testimony is relied upon by the enquiry officer, to establish the guilt of the petitioner. Rule 16 of the Regulations provides the procedure for imposing major penalties. Since the Board had decided to appoint an enquiry officer and proceed with a formal enquiry, I am of the opinion that all the procedure as is prescribed for the conduct of a major penalty has to be complied with, in full, irrespective of

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the nature of penalty imposed on the petitioner. This position is covered by decisions of the Apex Court as well as this Court. Once the procedure for imposition of major penalty is initiated, the employer cannot thereafter depart from the same, on the plea that only a minor penalty is being imposed. Rule 16(7) provides that the enquiry authority shall consider such documentary evidence and take such oral evidence as may be relevant or material. It further provides that the Board employee “shall be entitled to cross examine witnesses, examined in support of the charges and to give evidence in person, and to have such witnesses as may be produced and examined in his defence.”

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Ext.P5 is the reply given by the petitioner to the

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show cause notice, proposing punishment. It is stated that in Paragraph 5 of the said objection, the petitioner had not been permitted to cross examine Sri.Dinesh Kumar, whose statement had been relied upon by the enquiry officer. It is specifically stated at paragraph 12 of Ext.P5 that the

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petitioner was not given an opportunity to cross examine one of the defacto complainants and even though he requested to cross examine another defacto complainant in the presence of defence witnesses, to prove the actual position, the same was not allowed by the enquiry officer. He states that he had submitted a request to change the enquriy officer, but on the ground of bias, no action was taken by the appropriate authority.

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Ext.P6 order of the disciplinary authority refers to the ground raised by the petitioner that he was not permitted to cross examine the witnesses relied on by the enquiry officer. However, it is stated that since the offence alleged is of a grave nature, there is no sufficient reason to “evade the delinquent officer from being punished”. It is in the above view of the matter, that the punishment of barring one increment with cumulative effect for one year has been imposed. Though it is submitted that the plea with regard to the violation of the principles of natural justice has been

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raised repeatedly by the petitioner before the first Appellate Authority as well as the Board, the said contentions where not considered by the statutory appellate authorities. It is contended that Ext.P8 order in First Appeal had been passed by the second respondent, without even hearing the petitioner. 11. It is clear from the pleadings and the materials on record that the petitioner had at the first available opportunity, on being served with a copy of the enquiry report, raised specific contentions with regard to the refusal of an opportunity to cross examine the witnesses produced by the Board, in support of the allegations raised against him. It appears from a reading of Exts.P5 and P6 that he had raised allegations of bias against the enquiry officer, even before the enquiry had concluded. In any view of the matter, Ext.P5 reply to the show cause notice contains the specific allegation that his request for cross examination of the prosecution witnesses had been disallowed by the enquiry officer. In view of the clear provisions contained in Rule 16(7) of the Regulations, I

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am of the opinion that the procedure followed by the enquiry

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officer was not in accordance with the said Regulations. This aspect of the matter was raised by the petitioner pointedly before the second respondent. However, the second respondent has gone on to hold that since the penalty imposed was only barring of one increment with cumulative effect for one year, and since the allegation raised against the petitioner was one of demanding and accepting bribes, no interference is called for in the order imposing punishment.

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On considering the arguments raised and the

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documents produced in this case, I am of the opinion that at least at the stage of appeal from the order of the disciplinary authority, the aspects raised by the petitioner, as regards the violation of the provisions of the Regulations ought to have gained the attention of the respondents. Though the allegation raised against the petitioner is one of demand and acceptance of bribes, I am of the opinion that the petitioner can be found guilty and penal action can be taken against him, only in a

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properly constituted enquiry. The contention of the petitioner being that the oral evidence relied on by the enquiry officer was adduced behind his back, and that he was not given an opportunity to cross examine the witnesses was a point, which should have gained the attention, at least of the appellate authority, at the stage of issuance of Ext.P8 order. This aspect though raised, not having been considered by the authorities, I am of the view that Exts.P8 and P10 orders are vitiated by total want of application of mind.

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Exts.P8 and P10 orders are therefore set aside. However, in the facts and circumstances of the case, I am of the view that the contention raised by the petitioner that the enquiry proceedings as well as the imposition of penalty was vitiated by want of adherence to the provisions of Rule 16(7) of the Regulations is to be considered by first Appellate Authority that is the second respondent. In the above view of the matter, the second respondent is directed to take up and consider Ext.P7 appeal preferred by the petitioner, with notice

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and after hearing the petitioner and to pass orders thereon, within a period of two months from the date of receipt of a copy of this judgment. The contentions raised by the petitioner as regards the refusal by the enquiring authority to permit him to cross examine the witnesses, whose testimonies were relied upon in Ext.P3 report, shall be taken up by the second respondent with reference to the records of the enquiry and speaking orders passed thereon, on the appeal preferred by the petitioner.

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Writ petition is disposed of as above.

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Sd/ANU SIVARAMAN, JUDGE

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K.Muraleedharan Pillai v. Kerala State Electricity Board

Case brief

What is this about?

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K.Muraleedharan Pillai v. Kerala State Electricity Board

Case brief

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