IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 16TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL No.1489 OF 2012(S-DE) BETWEEN:
KARNATAKA POWER TRANSMISSION CORPORATION LIMITED CORPORATE OFFICE CAUVERY BHAVAN, BENGALURU-560 009 PRESENTLY REPRESENTED BY THEIR DIRECTOR (ADMIN AND HR) …..APPELLANT (BY SRI. SYED KASNIT ALI, ADVOCATE FOR M/S SUNDARASWAMY AND RAMADAS, ADVOCATES) AND:
SRI. M L NAGARAJA SON OF SRI. L LAKSHMANA NAIK AGED ABOUT 43 YEARS WORKING AS ASSISTANT EXECUTIVE ENGINEER (ELE), T.A. AND Q.C., CORPORATE OFFICE BENGALURU ELECTRICITY SUPPLY COMPANY (BESCOM) BENGALURU-560 001.
….RESPONDENT (BY SRI. M V HIREMATH, ADVOCATE) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION 2821 OF 2009 DATED 19.08.2011.
THIS WRIT APPEAL COMING ON FOR HEARING THIS DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT Being aggrieved by the order dated 19.8.2011 passed by the learned Single Judge in W.P.No.2821 of 2009, the respondent-Karnataka Power Transmission Corporation Limited has come up in appeal.
2. Parties are referred to as per the rank of the parties in the writ petition.
3. Brief facts of the case are as follows :
The petitioner-employee was appointed as Assistant Engineer in June 1994 and promoted as Assistant Executive Engineer in the year 1999. The respondent, employer-Karnataka Power Transmission Corporation Limited issued articles of charge against the respondent and five others. A joint enquiry was contemplated against all the six persons, including the respondent. As against the respondent, charges levelled are in two parts namely :
1) That he did not collect the development charges deposited in respect of certain service connections and 2) That in respect of one service connection i.e. 7 EEH – 20617 /10-12-2004, though a 66 KV high tension line was passing over the above the above said installation in a house, necessary clearance from the competent authority was not obtained.
The petitioner denied the said charges levelled against him and gave an explanation. During the course of enquiry, the petitioner did not press charge No.1. As regards charge No.2 is concerned, allegation was levelled against the officers jointly. The petitioner gave an explanation to charge No.2 by reply dated 9.11.2005 stating that inspection has to be done by the concerned Section Officer namely the Junior Engineer and that the Assistant Executive Engineer is not under the mandatory duty to inspect every house to which service connection is given. That no report was sent to the petitioner about passing of high tension line over the house. That as per Rule 80 of the Indian Electricity Rules, 1956, the difference between high tension power line and the top portion of the building must be minimum four meters in respect of 66 KV line. But in respect of service connection given to the house of one Mr.Radhakrishna, the difference between high tension wire and a portion of the building was 4.52 meters as certified on inspection by the concerned authorities; that if the difference is less than four meters, then only sanction of the Competent Authority i.e. Electrical Inspector is required to be obtained under Rule 134 of the Indian Electricity Rules 1956. That as the difference between high tension wire and the house was more than 4.5 meters, no clearance from the Electrical Inspectorate was necessary. However, the Enquiry officer has prepared a report stating that though the respondent is not guilty of the charge of not collecting the development charge from the consumers, he is guilty of negligence in the matter of giving service connection to the house of Sri.Radhakrishna i.e. 7-EEH-20617 i.e. charge No.2. The petitioner submitted a detailed reply dated 4.9.2006 to the enquiry report. Inspite of the same, the second respondent has passed the order 28.3.2007 imposing a penalty of withholding of one annual increment of the petitioner. Aggrieved by the said order, the petitioner preferred a statutory appeal to the third respondent which came to be rejected vide order dated 10.12.2008. The petitioner aggrieved by the orders passed by the second and third respondents, preferred W.P.No.2821 of 2009 before this Court which came to be disposed off on 19.8.2011 observing as under :
“Accordingly, it is also appropriate if the respondents take into account the respondents take into account the date his juniors were promoted as the date which would be relevant for the petitioner’s promotion and compute the same for the purpose of pension and his future enhancement of salary, if any and promotion as well.”
The respondent being aggrieved by the said order preferred the appeal.
4. Heard learned counsels.
5. It is the contention of the respondent/appellant that charge No.2 levelled against the petitioner is a serious one and cannot be condoned. That the penalty imposed on the petitioner is minor and it would last only for a year and the disability suffered by the petitioner is only for a period of one year. Therefore, the order passed by the learned Single Judge needs interference.
6. Charge No.2 levelled against the petitioner reads as under :-
“CHARGE LEVELLED AGAINST SRI.M.L.NAGARAJ, ASST. EXECUTIVE ENGINEER (ENCL):-
You, Sri. M L Nagaraj, while working as Assistant Executive Engineer (Encl) in 7th East Sub-division, when the Assistant Engineer (ENCL) (Tech) of the said jurisdiction submitted records for the purpose of sanctioning power supply to some installations, you, without verifying the said documents properly and without collecting the development fee from the consumer as per Regulation-10 of the Electricity Supply Regulation-2001, sanctioned power supply and gave approval for the work order and thereby inflicted a financial loss of Rs.72,000/-, also, even though the building with installation R.R.No.
7 ELG comes below the 66 KV line, you have given power supply to it without obtaining proper approval from the competent authority and thereby have committed dereliction of duty.”
7. The petitioner has given an explanation to charge No.2 by reply dated 9.11.2005 stating that inspection has to be done by the concerned Section Officer namely the Junior Engineer and that the Assistant Executive Engineer is not under the mandatory duty to inspect every house to which service connection is given. That no report was sent to the petitioner about passing of high tension line over the house. That as per Rule 80 of the Indian Electricity Rules, 1956, the difference between high tension power line and the top portion of the building must be minimum four meters in respect of 66 KV line. Rule 80 of the Indian Electricity Rules, 1956 reads as under :-
“80 Clearance from buildings of high and extra high voltage line:
(1) Where a high or extra high voltage overhead line passes above or adjacent to any building or part of a building which shall have on the basis of maximum sag a vertical clearance about the higher part of the building immediately under such line of not less than-
a) for high voltage line upto and including 33,000 volts 3.7 Meters b) for extra high voltage line-3.7 Metres plus 0.3 Metre for every additional 33,000 volts or part thereof;
(2) The horizontal clearance between the nearest Conductor and any part of such building shall be on the basis of maximum deflection due to wind pressure of not less than-
(a) for high voltage line upto and including 11,000 volts -1.2 Metres (b) for high voltage line above 11,000 volts and upto and including 33,000 volts-2.0 Metres (1) for extra high voltage line-2.0 Metres plus 0.3 Metre for every additional 33,000 volts or part thereof;
Explanation: For the purpose of this Rule the expression “building” shall be deemed to include any structure (various clearances such as vertical height and ground clearance shall be considered as per the sketch in Annexure –XVI) But in respect of service connection given to the house of one Mr.Radhakrishna, the difference between high tension wire and a portion of the building was 4.52 meters as certified on inspection by the concerned authorities; that if the difference is less than four meters, then only sanction of the Competent Authority i.e. Electrical Inspector is required to be obtained under Rule 134 of the Indian Electricity Rules 1956.
8. As discussed above and after perusing the relevant rules, there was no negligence on the part of the respondent in giving service connection to the house of Ramakrishna. However, the respondent/appellant have already implemented the order of penalty. The petitioner was entitled for promotion but by virtue of order of penalty, he has been denied promotion to which he was entitled in due course and accordingly, he has lost his seniority. The respondent/appellant is not justified in denying the promotion to the petitioner merely on the ground that there is an order of punishment. The action of the respondent/appellant in not promoting the petitioner is arbitrary. However, the respondent/appellant has not contested the matter seriously before the learned Single Judge and have not filed statement of objections in the writ petition. The petitioner’s juniors were promoted but the petitioner was not promoted on the above said ground. The order of imposing penalty cannot bar the petitioner from getting a promotion permanently. The learned Single Judge has passed the order to consider the case of the petitioner by taking into account the date of his juniors were promoted is the date which would be relevant for the petitioner’s promotion and compute the same for the purpose of promotion and his future enhancement of salary if any in promotion as well.
9. The order dated 19.8.2011 passed by the learned Single Judge reads as under :-
“Since the petitioner has already suffered the consequence, in that, he has been denied a promotion on account of the said entry, after also having suffered withholding of one increment in his service record, it would be appropriate and in the interest of justice if the said entry in the service record is deleted since the punishment has been imposed and has been suffered by the petitioner. If the intent was to bring home to the petitioner the need for diligence, that message has been brought home. Therefore, a should not affect the petitioner, throughout his career and the petitioner having been overlooked for grant of promotion, would still not bring him the benefit that he would be entitled to from the date his juniors were promoted over him. Accordingly, it is also appropriate if the respondents take into account the date his juniors were promoted as the date which would be relevant for the petitioner’s promotion and compute the same for the purpose of pension and his future enhancement of salary, if any and promotion as well.”
10. The learned Single Judge has rightly observed that there is no meaning in going into the correctness or the order of penalty as the petitioner has already suffered punishment of losing an increment. The respondent/appellant by denying promotion to the petitioner have committed an error. The learned Single Judge after considering the material on record has rightly disposed of the writ petition directing the respondent/appellant to take into account the date of his juniors promotion as the date which would be relevant for the petitioner’s promotion and compute the same for the purpose of pension and his future enhancement of salary, if any and promotion as well.
11. Hence, for the aforesaid reasons, we do not find any ground to interfere with the order of the learned Single Judge. Hence, we pass the following :
ORDER The writ appeal is dismissed without costs.
Sd/- Sd/-
JUDGE JUDGE rs