Allowed

Joseph Froid Periara v. the Kerala State Electricity Board

Kerala HC5 Jul 2022WP(C)/16264/2021

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging a compulsory retirement order against a petitioner. Finding that the appellate authority repeatedly failed to address defects in the inquiry report despite multiple directions, the Court set aside the impugned orders. A direction was issued for the disciplinary authority to seek the petitioner's explanation on inquiry findings and conclude proceed

What did the court decide?

Exhibits P7 and P23 set aside. Notice to be issued seeking explanation on inquiry findings. Disciplinary proceedings to conclude within three months;否则 reinstate.

Joseph Froid Periara Vs the Kerala State… — Pension and Retirement Benefits | Kerala HC (2022)

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WP(C) NO. 16264 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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TUESDAY, THE 5^TH DAY OF JULY 2022 / 14TH ASHADHA, 1944 WP(C) NO. 16264 OF 2021

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PETITIONER/S:

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JOSEPH FROID PERIARA AGED 54 YEARS SON LATE FRANCIS PERAIRA, OVERSEER 9REMOVED FROM SERVICE) 66 KV SUB STATION, NJARAKKAL, VYPIN, UNDER TRANSMISSION CIRCLE, KERALA STATE ELECTRICITY BOARD, KALAMASSERY, RESIDING AT KALAVARAMPARAMBIL, 44/1074/B/5, N.KALOOR, POTTAKUZHY, KOCHI-682 017 BY ADVS. C.UNNIKRISHNAN (KOLLAM) M.R.SUDHEENDRAN ANANDA PADMANABHAN SANJAY JOHNSON UTHARA A.S MAHESH CHANDRAN VIJAYKRISHNAN S. MENON JOHN GOMEZ

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RESPONDENT/S:

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1 THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004

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2 THE CHAIRMAN AND MANAGING DIRECTOR, KERALA ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004

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3 THE CHIEF ENGINEER (HRM), KERALA ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM, PATTOM PALACE P.O., THIRUVANANTHAPURAM-695 004

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4 THE CHIEF ENGINEER (DISTRIBUTION CENTRAL), KERALA ELECTRICITY BOARD, ERNAKULAM , KOCHI-682 011

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5 THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA ELECTRICITY BOARD, ERNAKULAM , KOCHI-682 018 BY ADV A.G.ANEETHA

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OTHER PRESENT:

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SC FOR KSEB K.S.ANIL

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23.05.2022, THE COURT ON 05.07.2022 DELIVERED THE FOLLOWING:

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V.G.ARUN, J.

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W.P(C).No.16264 of 2021

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Dated this the 5^th day of July, 2022

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JUDGMENT

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The petitioner, while working as Lineman Grade-I, Electrical Section (Central), Ernakulam was placed under suspension on 19.6.2006. Thereafter, he was issued with Exhibit P1 memo of charges alleging involvement in instances of power theft along with one A.G.Dinesh, the then Senior Superintendent, Electrical Section, Thevakkal. As the petitioner's explanation to the memo of charges was not satisfactory, departmental inquiry was ordered against him. In the inquiry the petitioner was found guilty of the charges. Based on the findings in the report of inquiry, the disciplinary authority imposed punishment of removal from service on the petitioner, as per Exhibit P7 dated 7.11.2014. In appeal, the finding of guilt was confirmed and the punishment modified as compulsory retirement.

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Petitioner challenged the orders of the disciplinary and appellate authority in W.P(C).No.27655 of 2015. By Exhibit P13 judgment, this Court set aside the appellate order and directed reconsideration of the entire issues involved in the case. Thereafter, petitioner's appeal was reconsidered and the earlier order reiterated as per Exhibit P14 order.

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Aggrieved, the petitioner filed W.P(c).No.7049 of 2018 challenging the order. By Exhibit P15 judgment, this Court set aside the order and directed to reconsider the appeal in tune with the observations in Exhibit P13 judgment. The appellate authority passed Exhibit P16 order, once again rejecting the appeal and awarding the punishment of compulsory retirement. That order was challenged in W.P(C).No.19016 of 2018 and by Exhibit P17 judgment, the order was set aside and the appellate authority directed to reconsider the appeal and pass a reasoned order in the light of the observations in the judgment. Undeterred, the appellate authority passed Exhibit P20 order, upholding the findings in the inquiry report and modifying the penalty of removal from service to compulsory retirement. The petitioner challenged Exhibit P20 order in W.P(c).No.32287 of 2019. By Exhibit P21 judgment, the order was set aside once more and appellate authority directed to consider the appeal in accordance with the directions in Exhibit P17 judgment. The appellate authority having reiterated its stand in Exhibit P23 order, by upholding the order of the disciplinary authority, the hapless petitioner is before this Court for the fifth time.

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Adv.M.R.Sudheendran, learned Counsel for the petitioner submitted that the findings in the inquiry report were rendered without examining crucial witnesses and relying on documents which were not marked during inquiry or even made available to the petitioner. The

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most vital document relied on by the inquiry officer is the confession statement alleged to have been given by the petitioner. That statement is admittedly written by another employee and the petitioner's signature obtained under threat and coercion. The petitioner's request for examining crucial defence witnesses was summarily rejected. In short, the inquiry was conducted in gross violation of the principles of natural justice. The inquiry report is defective for the reason that separate findings on each charge are not entered. After inquiry, copy of the

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inquiry report was not given to the petitioner and as a result, he was compelled to submit explanation to the show cause notice without even seeing the inquiry report.

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Even though, above crucial defects in the inquiry report and order of the disciplinary authority were pointed out, the appellate authority refused to consider those contentions. For the above reason, this Court had repeatedly interfered and directed reconsideration of petitioner's appeal. The obstinate stand taken by the appellate authority shows that no purpose will be served by once again directing reconsideration of the appeal.

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Adv.K.S.Anil, learned Standing Counsel for the KSEB, submitted that Exhibit P23 order is passed in terms of the directions in Exhibit P17 and P21 judgments. The petitioner’s contentions are considered and all points answered. It is contended that, interference in disciplinary

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proceedings is possible only if the inquiry was conducted in violation of the principles of natural justice or the punishment imposed found to be disproportionate. In the instant case, other than vague allegations, there is nothing to show that the principles of natural justice was not adhered to during inquiry. Further, the appellate authority having reduced the punishment to compulsory retirement, contention that the punishment is disproportionate cannot also be countenanced.

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The earlier orders of the appellate authority were quashed for specific reasons. Therefore, it is necessary to consider the earlier judgments of this Court. While interfering with the appellate order and directing reconsideration on the first occasion, this Court held as under;

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“7. Disciplinary proceedings against erring employees have to be taken by the appropriate Disciplinary Authorities in accordance with provisions of the relevant rules relating to such proceedings. It is beyond doubt that such proceedings have also to comply with the principles of natural justice. Before any material can be relied on by the Enquiry Officer to establish the guilt of an employee, the said material has to be put to the employee and the employee has to be given an opportunity to state his case as regards the same These are common procedures which have to be followed in all disciplinary proceedings which are not proceedings in the nature of civil or criminal cases in courts of law but are only fact finding enquires. In the above view of the matter, I am of the opinion that the order passed by the Appellate

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Authority in Ext P9 without considering the specific grounds raised by the petitioner in Ext P8 Appeal does not serve the purpose of the consideration of an appeal from an order imposing a punishment Since the petitioner had specifically raised grounds as against the enquiry report, the appellate authority ought to have considered the records of the enquiry and come to a conclusion whether the finding of guilt as against the petitioner stood established on the basis of the materials which were marked in the enquiry and which were put to the petitioner. The Appellate Authority has reduced the punishment to one of compulsory retirement However the petitioner had a larger claim that the finding of guilt as against him was completely unjustifiable. The said aspect of the matter has not been considered by the Appellate Authority.

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8. In the above view of the matter while retaining the reduction of punishment to one of compulsory retirement in Ext P9. I direct the 2 respondent to reconsider Ext Appeal preferred by the petitioner as against Ext P7 enter Imposing penalty by specifically considering case of the petitioner that no guilt could be established as against him in the basis of the records produced and the materials marked in the enquiry and put to him. The Appeal shall be reconsidered with notice to the petitioner and after hearing him within a period of three months from the date of receipt of a copy of this judgment. All the contentions raised in the appeal with regard to the guilt of the petitioner and the conduct of the enquiry are left open for consideration .”

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On the second occasion, it was found that the appellate order does not reflect the consideration as directed in Exhibit P13 judgment. In Exhibit P17 judgment rendered on the third time challenge, it was held as under;

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“27. As regards sustainability of the findings in the enquiry report on the grounds of violations of principles of natural justice as alleged by the petitioner, the appellate authority did not specifically advert to the grounds of the petitioner raised in the appeal memorandum. Instead of that, the appellate authority held that preponderance of probability alone is required to arrive at findings of guilt and that the principles of natural justice had been observed in the disciplinary proceedings against the petitioner. The appellate authority did not consider whether the fact of disciplinary authority proposing the penalty of removal before issuing show-cause and without hearing the petitioner, points towards a legal bias on the part of the disciplinary authority. The appellate authority did not either come to any conclusion as to the argument of the petitioner as regards nonexamination of material witnesses resulting in vitiating the enquiry. Going by the enquiry report, it is seen that the inquiry authority has in its enquiry report taken into consideration a number of "additional documents. The appellate authority did not at all check whether these additional documents were originally proposed to be the materials for disciplinary enquiry and whether these additional documents were brought to the notice of the petitioner during the enquiry and whether the petitioner was given any opportunity to examine those additional documents. The appellate authority also did not consider whether the requirements in the KSEB Employees (Classification, Control and

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Appeal) Regulations, 1969 as to recording of finding on each charge, by the inquiry authority and the disciplinary authority has vitiated the enquiry The appellate authority neither did express its opinion on the acceptability of statements of witnesses which were relied on by the inquiry authority without examining the authors of the statements. All the above legal contentions urged by the petitioner have material bearing on the legality of the disciplinary proceedings, which the appellate authority miserably failed to consider. The failure is much aggravated, taking into account the fact that this Court in Exts P13 and P16 judgments had specifically directed the appellate authority to consider the legal grievances of the petitioner.

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28 In the facts and circumstances of the case, Ext P18 appellate order is vitiated by non application of mind and cannot be sustained. Ext.P18 is, therefore, set aside. Taking into account the fact that the charges levelled against the petitioner are in respect of the incidents happened in the year 2006 and also taking into account the fact that the petitioner was kept out of service from the year 2014, the 2 respondent-appellate authority is directed to reconsider Ext P8 appeal filed by the petitioner and pass a detailed reasoned order, in the light of the observations made hereinabove, within a period of two months from the date of receipt of a copy of this judgment.”

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In spite of the above specific findings, Exhibit P20 order was passed without considering the appeal in the manner expected. Therefore, this Court was compelled to render Exhibit P21 judgment, setting aside Exhibit P20 order and directing reconsideration of the appeal on merits. The appellate authority was directed to consider the contentions of the

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petitioner that the inquiring authority had relied on certain additional documents, copies of which were never served on the petitioner and further, to consider the appeal in accordance with the directions in Exhibit P17 judgment. Exhibit P23 order is stated to have been passed in purported compliance of the above direction.

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In the above circumstances, the following aspects highlighted in Exhibit P17, assumes relevance;

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i) violation of principles of natural justice;

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ii) issuance of show cause notice proposing penalty of

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removal without seeking the petitioner’s explanation on the findings in the inquiry report;

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iii) non examination of material witnesses by the inquiry authority and consideration of additional documents that were not part of the disciplinary inquiry;

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iv) failure to record finding on each charge by the inquiry authority and disciplinary authority;

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v) acceptance of statements of witnesses by the inquiry authority without examining the authors of the statements.

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The short question is whether the appellate authority has dealt with the above aspects in a proper and judicious manner. A reading of Exhibit

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P23 shows that, on the aspect regarding violation of principles of natural justice, absolutely nothing is mentioned in Exhibit P23 order. On the

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aspect whether issuance of show cause notice proposing penalty, without hearing the petitioner on the findings in the inquiry report, amounts to legal bias, the appellate authority has held that there is no bias, since a show cause notice was issued, copy of inquiry report furnished and opportunity of personal hearing granted to the petitioner. For answering the contention regarding non-examination of material witnesses, the appellate authority has placed reliance on Paragraph 22 (2) of the Manual of Disciplinary Proceedings and held that it is not necessary to record the evidence of witnesses whose statements were recorded at the preliminary inquiry. That, it would be suffice if the statements so recorded are read out in the presence of those witnesses. It is pertinent to note that the statements recorded at the preliminary inquiry stage were not read out over those witnesses in the departmental inquiry.

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The next aspect to be considered was failure of the inquiring authority and disciplinary authority to record their findings on each charge. On this, the appellate authority has come out with an explanation that, failure to record the findings on each charge may be due to the fact that the charges are with respect to illegal abstraction of power in various consumer premises and the depositions and confession statements of the employees relied on to prove those charges are common. In this regard, it will be apposite to consider Regulation 16(9)

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of the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1969 extracted here under;

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“16. Procedure for imposing major penalties

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xx xx xx

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(9) At the conclusion of the inquiry, the Inquiry Authority shall prepare and report of the inquiry, recording its findings on each of the charges together with reasons therefor. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed, it may record findings on such charges provided that findings on such charges shall not be recorded unless the Board employee has admitted the facts constituting them or has had an opportunity of defending himself against them.”

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The above mandatory requirement having been flouted, the appellate authority cannot wish away that defect by offering an explanation. Such attempt gives credence to the allegation of bias.

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The obstinate stand taken by the appellate authority, even after repeated directions from this Court, makes it evident that no purpose will be served by merely setting aside Exhibit P23 order and directing reconsideration for the fifth time. No doubt, the allegations are grave in nature. At the same time, equity demands that the petitioner should be relieved from the trauma and ignominy of being shunted from this Court to the appellate authority and back.

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In the result, the writ petition is allowed as under;

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Exhibits P7 and P23 orders are set aside. The 3^rd respondent is directed to issue notice to the petitioner, seeking his explanation on the findings in the inquiry report. If the explanation is not satisfactory, the disciplinary proceedings shall be continued, in strict compliance with the procedure prescribed in the Kerala State Electricity Board Employees (Classification, Control and Appeal) Regulations, 1969. As the petitioner is on the verge of superannuation, the disciplinary proceedings shall be concluded within three months of receipt of a copy of this judgment, failing which, the petitioner shall be reinstated in service after three months and only thereafter the proceedings shall be continued.

Sd/-

V.G.ARUN, JUDGE

vgs

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APPENDIX OF WP(C) 16264/2021

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PETITIONER EXHIBITS

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Exhibit P1	A TRUE COPY OF THE MEMO OF CHARGES DATED 16.12.2006
Exhibit P2	A TRUE COPY OF THE REPLY DATED 12.1.2007
Exhibit P3	A TRUE COPY OF THE SHOW CAUSE NOTICE DATED 4.6.2013
Exhibit P4	A TRUE COPY OF THE REPLY DATED 11.9.2013 SUBMITTED BY THE PETITIONER
Exhibit P5	A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 26.7.13
Exhibit P6	COPY OF THE ENQUIRY REPORT
Exhibit P7	TRUE COPY OF THE PROCEEDINGS DATED 7.11.2014 OF THE 3RD RESPONDENT
Exhibit P8	A TRUE COPY OF THE APPEAL DATED 10.12.2014
Exhibit P9	A TRUE COPY OF THE APPELLATE ORDER DATED 6.8.2015
Exhibit P10	TRUE COPIES OF THE PROGRESS REPORT
Exhibit P11	TRUE COPIES OF THE PROGRESS REPORT
Exhibit P12	A TRUE COPY OF THE LEGAL OPINION
Exhibit P13	A TRUE COPY OF THE JUDGMENT DATED 14.11.2017 I WPC NO.27655/2015
Exhibit P14	A TRUE COPY OF THE ORDER DATED 20.1.2018 OF THE 2ND RESPONDENT
Exhibit P15	A TRUE COPY OF THE JUDGMENT DATED 9.3.2018 IN WPC NO.7049/2018
Exhibit P16	A TRUE COPY OF THE ORDER DATED 4.5.2018 OF THE 2ND RESPONDENT
Exhibit P17	A TRUE COPY OF THE JUDGMENT DATED 19.2.2019 IN WPC NO.19016/2018
Exhibit P18	TRUE COPY OF THE R.P.NO.307/2019
Exhibit P19	TRUE COPY OF THE ORDER DATED 4.4.2019 IN RP NO.307/2019 IN WPC NO.13016/2018
Exhibit P20	A TRUE COPY OF THE ORDER DATED 20.6.2019
Exhibit P21	A TRUE COPY OF THE JUDGMENT DATED 19.1.2021

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IN WPC NO.32287/2019 Exhibit P22 A TRUE COPY OF THE LETTER DATED 26.2.2021 WITH ENCLOSED DOCUMENTS Exhibit P23 A TRUE COPY OF THE ORDER DATED 26.23.2021 ISSUED BY THE 2ND RESPONDENT

Joseph Froid Periara v. the Kerala State Electricity Board

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Joseph Froid Periara v. the Kerala State Electricity Board

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