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E.N.SOMAN, AGED 53 YEARS, S/O.LATE versus KERALA STATE ELECTRICITY BOARD, REP:

High Court of Kerala

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E.N.SOMAN, AGED 53 YEARS, S/O.LATE v. KERALA STATE ELECTRICITY BOARD, REP: - WP(C) No. 12542 of 2006(R) [2007] RD-KL 15187 (8 August 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 12542 of 2006(R)

1. E.N.SOMAN, AGED 53 YEARS, S/O.LATE
... Petitioner

Vs

1. KERALA STATE ELECTRICITY BOARD, REP:
... Respondent

2. DEPUTY CHIEF ENGINEER, ELECTRICAL

3. CHIEF ENGINEER (HRM), KERALA STATE

4. CHAIRMAN, KERALA STATE ELECTRICITY

5. K.S.DAMODARAN NAMBOODIRI,

For Petitioner :SRI.M.A.ABDUL HAKHIM

For Respondent :SRI.K.S.ANIL, SC, KSEB

The Hon'ble MR. Justice ANTONY DOMINIC

Dated :08/08/2007

O R D E R

ANTONY DOMINIC, J.


===============
W.P.(C) NO. 12542 OF 2006
====================

Dated this the 8th day of August, 2007



J U D G M E N T

While working as Sub Engineer at Mavungal Electrical Section of Kasargod District, Ext.P4 charges were laid against the petitioner, to which petitioner submitted Ext.P5 explanation. The explanation submitted was found to be unsatisfactory and by Ext.P6, an Enquiry Officer was appointed. Ext.P7 report of the enquiry reveals that both documentary and oral evidence was adduced before the Enquiry Officer. In so far as the first two charges against the petitioner are concerned, they were held to be proved. Charge Nos. 3 and 4 were held to be partially proved and Charge No.5 was held to be not proved. The disciplinary authority thereafter issued Ext.P8 show cause notice. In so far as charges 1 and 2 are concerned, the disciplinary authority held that he is accepting the findings of the WPC 12542/06 Enquiry Officer. In so far as charge No.3 is concerned, disciplinary authority held that the charge is fully proved and it is further held that the image of the Board was also affected badly, which was the subject matter of Charge No.5. On this basis, petitioner was called upon to show cause why punishment of barring next two increments with cumulative effect and also why the loss sustained by the Board by his irregular act amounting to Rs.18,500/- plus interest shall not be recovered from him. To Ext.P8, the petitioner submitted Ext.P9 explanation which was rejected and disciplinary authority imposed punishment of barring of two increments with cumulative effect and ordered recovery of loss of Rs.18,500/- with interest, by Ext.P10 order. Petitioner pursued the matter in appeal by Ext.P11, in which the appellate authority passed Ext.P12 order reducing the punishment to barring of one increment with cumulative effect along with recovery of the amount of loss together WPC 12542/06 with interest. Still aggrieved, the petitioner filed Ext.P13 representation before the Chairman of the Board, in which Ext.P14 order was passed reducing the punishment and ordering bar of one increment for six months without cumulative effect and recovery of the amount lost without any interest. He pursued the matter by filing review , that also met with dismissal by Ext.P15. It is in this background, the petitioner has filed this writ petition seeking to quash the orders of punishment as confirmed in appeal, revision and review.

2. Counsel for the writ petitioner canvassed on the propriety of the findings entered into by the Enquiry Officer and the punishment that was imposed by the disciplinary authority as confirmed in the Appellate order as well as the revision and the review orders. However, at the outset I should caution myself about the limits of my jurisdiction under Article 226 of the Constitution of India. Exercising the WPC 12542/06 power of judicial review, this Court will be justified in interfering with proceedings in a disciplinary action only if the findings of the Enquiry Officer are perverse in the sense that reasonable person would not arrive at such a conclusion on the evidence available. This is a case where even before the Enquiry, the Vigilance Department had conducted an enquiry and apparently recommended disciplinary action. On the materials available, the Enquiry Officer found the petitioner guilty and that has been confirmed throughout. On going through Ext.P7 Enquiry Report, I do not agree with the counsel for the writ petitioner that the findings arrived at by the Enquiry Officer are vitiated on any of the grounds that are available for judicial review.

3. As already stated, in Ext.P7 report of Enquiry, Charge Nos. 1 and 2 were held to be proved. In so far as Charge Nos. 3 and 4 are concerned, they were held to be partially proved and Charge No.5 was held to be not proved. WPC 12542/06 However, the disciplinary authority in Ext.P8 show cause notice held that Charge No.3 was proved. He has also held that the action of the petitioner tarnished the image of the Board, which was charge No.5. Thus the disciplinary authority disagreed with the Enquiry Officer atleast in so far as Charge Nos. 3 and 5 are concerned. It is on that basis that the disciplinary authority called upon the petitioner to show cause why the punishment shall not be imposed on him.

4. The records would reveal that before disagreeing with the conclusions of the Enquiry Officer, in so far as Charge Nos.3 and 5 are concerned, the disciplinary authority did not put the delinquent on notice nor was he given an opportunity to sustain findings in the Enquiry report, which were in his favour. It is settled law that if a disciplinary authority proposes to disagree with the findings of the Enquiry Officer, indicating the tentative reasons thereof, he WPC 12542/06 should put the delinquent on notice. This has not been done in this case and therefore the action of the disciplinary authority in holding that Charge Nos. 3 and 5 are proved has to be held to be violative of the principles of natural justice and on that ground, the punishment imposed by Ext.P10 deserves to be interfered with. Consequently, Exhibits P12, P13 and P15 orders confirming Ext.P10 order of punishment also has to be set aside. However, for the only reason that show cause notice was not given before disagreeing with the findings on Charge Nos. 3 and 5 are concerned, the action against the petitioner, who is still in service of the Board, does not lapse. The disciplinary authority is entitled to issue notice indicating the tentative reasons for its disagreement and after considering his explanation, can proceed with the matter thereafter and impose punishment that it considers appropriate. However, if the disciplinary authority does not WPC 12542/06 want to rely on findings of Charge Nos. 3 and 5 and proposes to rely on Charge Nos. 1 and 2 alone, without issuing such notice, they are entitled to proceed with the matter. Writ petition is disposed of accordingly.

ANTONY DOMINIC, JUDGE.

Rp


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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