The petitioner, who was the member of the Kerala State Electricity Board (Chief of Generation) has come up before this Court aggrieved by Ext.P13 order issued by the respondent board by which he has been demoted as the lowest among the Chief Engineers of the board.
2. The brief history of the case, as narrated by the petitioner, is under:
The petitioner was appointed as Member (Civil) in the respondent board as per Ext.P1. However, he was removed from the said post by order dated 7.9.1998 which was challenged by him before this Court in O.P No.1724 of 1998. The original petition was dismissed by this Court and the matter was taken in intra court appeal wherein this Court by Ext.P2 judgment dated 2.6.2000 clarified that if ultimately the petitioner is absolved of all the charges levelled against him in the enquiry and he is not found guilty, the provisions of sub section 4 shall not stand in the way of his being considered in future to hold the post of a member or in any other capacity under the board, if he is otherwise qualified.
The petitioner further alleges that on further enquiry by the Vigilance, it was found that the allegations levelled against the petitioner were not genuine and a final report was submitted by the Vigilance before the Enquiry Commissioner and Special Judge, Thiruvananthapuram, which was duly accepted and further action was dropped as per Ext.P3 order. Subsequently, the petitioner while working as Chief Engineer, was appointed as Chief of Generation and Board Member vide Ext.P4 as he was senior-most Chief Engineer. While the petitioner was discharging his duties as Chief of Generation, the Government issued Ext.P5 order by which, referring to certain circumstances stated to have been reported by the Chairman of the Kerala State Electricity Board, sanction was accorded to remove the petitioner from the aforesaid post.
The petitioner alleges that he was not served with the copy of the letter of the Chairman referred to in Ext.P5 and was not aware of the actual contents of the same. According to him, pursuant to Ext.P5, no order has been passed by the Government factually removing the petitioner from the post of Chief of Generation. He challenged Ext.P5 before this Court in W.P(C) No.11762 of 2008 and this Court by judgment dated 9.4.2008 directing that the enquiry against the petitioner should be completed expeditiously and in any event, within six months from the date of judgment. In the meanwhile, the Chairman of the respondent board issued Ext.P6 memo of charges along with statement of allegations dated 19.6.2008 containing seven allegations. The petitioner alleges that this was without any decision of the board.
The petitioner was required to show cause and to reply to Ext.P6 memo of charges. The petitioner alleges that Ext.P6 is dated 19.6.2008 and it was forwarded by the Secretary only on 19.7.2008. To Ext.P6, the petitioner gave Ext.P7 reply. Dis-satisfied with the reply, the Chairman of the respondent board appointed Legal Adviser and Disciplinary Enquiry Officer (LA & DEO) as the Enquiry Officer vide Ext.P8 order. Accordingly, the petitioner faced the enquiry. Ext.P9(a) is the additional statement filed by him on 14.1.2009 and Ext.P9 (b) is the final written statement filed by him on 26.2.2009. In the meanwhile, the period prescribed by this Court in the judgment in W.P(C) 11762/2008 was extended in the first instance by three months i.e. from 9.12.2008. However, further extension of time sought for by the Government was dismissed by this Court. Thereafter the Enquiry Officer concluded the enquiry and copy of the enquiry report dated 7.2.2009 was forwarded to the Special Officer, the second respondent. The petitioner alleges that he was not served with the copy of the same. However, show cause notice dated 23.4.2009 was issued to the petitioner referring to the Ext.P6 and Ext.P7 stating that the Special Officer after examining the statement of defence was convinced that the subject case warrants a formal enquiry by the LA & DEO.
It was further stated that the LA & DEO has submitted a report and it was substantiated beyond any doubt that the act of the petitioner amounted to official misconduct, dereliction of duty and misuse of official powers. It was further stated that the finding of the LA & DEO, K.S.E Board was examined by the full time members and recommended to impose major penalty under Section 16 of the K.S.E. Board (Classification Control and Appeal) Regulations, 1969 on the petitioner for violation of standing orders of the board and accordingly, proposed reduction in the rank in seniority list to the junior-most among the Chief Engineer (Civil). Based on the same, the petitioner was served with Ext.P10 show cause notice granting 15 days' time to furnish his explanation.
The petitioner submitted reply dated 30.4.2009 requesting for a copy of the enquiry report. Accordingly, he was furnished with a true copy of the enquiry report (Ext.P11). Thereafter, the petitioner gave Ext.P12 reply. Rejecting the same, the second respondent issued Ext.P13 order dated 20.10.2009 ordering that the petitioner be placed as junior-most among the current Civil Chief Engineers. It is with this background, the petitioner has come up this Court.
3. In the detailed counter affidavit filed by the respondents, they have justified the action initiated against the petitioner and the penalty imposed. According to the board, there are no procedural irregularities in the action initiated against the petitioner. They would further contend that the petitioner was facing disciplinary action in other four cases.
4. I have heard the learned Senior Counsel appearing for the petitioner and the learned Senior Standing Counsel appearing for the respondents quite in extenso.
5. The following were the allegations contained in Ext.P6 memo of charges levelled against the petitioner:
(1) Violated the explicit standing orders of the Board by carrying out additional works in the Lower Periyar Hydro Electric Project, without permission of the Board.
(2) Executed elaborate and expensive heavy concrete work for a mere storage yard without obtaining Administrative Sanction from the Board thereby sustaining loss to the Board.
(3) Irregularly accorded sanction to the Deputy Chief Engineer, LP Circle, Vazhathope to award the additional work of Stop Log Yard and allied works of LPHE Project at Pambla without obtaining ratification from the Board.
(4) Violated the Standing Orders of the Board by executing works claiming to be done on the basis of an oral instruction of the Chairman, whereas no such direction was given by the Chairman.
(5) Showed unholy haste with a malafide intention in order to avoid the estimate being scrutinized at the Board level before presenting the Board with a fait accompli.
(6) Deliberately delayed the despatch of the approved letter to the Secretary seeking ratification till the Deputy Chief Engineer awarded the work.
(7) Deliberately took action so that work could be initiated by the contractor before the Board could have prevented the execution and ordered retendering.
6. The learned Senior Counsel appearing for the petitioner made a frontal attack on the initiation of disciplinary proceedings against the petitioner on the ground that there was no decision, at any point of time, by the respondent board to initiate proceedings against the petitioner. It was argued that the minutes in the concerned file had been manipulated to make it appear that there was a decision by the members of the respondent board to initiate disciplinary action against the petitioner.
7. Though this was stoutly denied by the learned Senior Standing Counsel appearing for the respondent board, the learned Senior Counsel for the petitioner would submit that, in fact, the manipulation by fraudulent insertion in the note has been accepted by the Enquiry Officer also. To prove this, the learned Senior Counsel invited my attention to the relevant page of the concerned file TC5/74/2000 which is produced as Ext.P16. According to him, the same was obtained by the petitioner during the course of enquiry.
8. The contents of Ext.P16 shows that the board had earlier decided in its meeting held on 22.12.2001 that the Chairman and the full time members should visit the site to see whether the work in question had been completed and whether it was actually necessary to take up the work and then to make suitable recommendation to the board on the basis of the said finding. The learned Senior Counsel for the petitioner would submit that factually, the said decision was not carried out insofar none of the full time members except the Chairman visited the site. The site was visited only by the Chairman along with Shri B. S. Radhakrishnan, the then Chief of Generation. It is evident from Ext.P16 that thereafter the Chief of Generation had minuted as follows:
“During the inspection of the site it was noted that the expenditure incurred for the work could have been kept down. It is necessary that the stop logs are to be preserved by stacking in firm designed ribs. Heavy concrete works could have been avoided.”
9. According to the petitioner, below the same the signature of the officer concerned who made the remarks, viz., the Chief of Generation Shri Radhakrishnan was affixed with the date “20.6.2002”. Thereafter, the matter is seen placed before the Member (Finance) who minuted on 23.6.2002 as under:
“the other members who visited the site may see for remarks”.
10. Thereafter the file is seen placed before the Member (Distribution) who just initialed the same on 24.6.2002.
Thereafter, the file is seen sent to the Member (Transmission) who minuted as under on 8.7.2002.
“conform with the views of the COG and M (D). The matter may be placed before the FTMs meeting.”
Later, the file is seen marked to the Chairman who minuted as follows:
“I also agree with the views expressed by the COG and M(D). Stop logs such huge and heavy steel structures which should be kept immersed in water, in sun and rain when put to use. It requires crane to move them. Hence possibility of theft and probability of damage when exposed to sun and rain are little. But is is always better to keep them properly stacked without touching the ground on a well drained area. Put up with explanation submitted by the CE Sri. K. K. Karappankutty.”
11. It is surprising to note that the aforesaid minutes was seen initialed by the Chairman on 1.7.2002. It was submitted by the learned Senior Counsel for the petitioner that the then Chairman was Shri T. M. Manoharan. It is not disputed. It was argued that thereafter the file did not see light till 31.12.2007 i.e. the date on which Sri. T. M. Manoharan demitted the office as Chairman. On that date, the file was brought to light, i.e. after a gap of six years and was followed up by the issuance of Ext.P10 show cause notice without placing the matter for the decision of the board, which is the competent authority; so submitted the learned Senior Counsel for the petitioner.
12. It was pointed out that to cover up the fact that the matter did not have sanction from the board, the minutes by the chief of Generation on 20.6.2002 was altered by the interpolation of the following words:
“Execution of works without A/S against specific instruction from Board has to be proceeded against by initiating disciplinary action.”
13. It can be seen from Ext.P17, which is the copy of the deposition of Member (Distribution) who was examined as DW3 that the fact that the aforesaid words were not in the file at the relevant time was admitted by him. It is also brought to my notice that apart from this the custodian of the file, viz., DW2 has opined before the Enquiry Officer that it appears to be a subsequent interlineation.
14. The following observation of the Enquiry Officer in his report reveals, how lightly the same has been explained away by him:
“On a perusal of the same I am of the view that there was insertion as alleged and this ought not have been happened. But the above observation based on Ext.D34 cannot come to the rescue of the delinquent from the charge that he violated the explicit standing orders vide Ext.P4.”
(emphasis supplied)
15. There is reason to believe that interpolations in the minutes were made subsequently which would indicate that there was no decision by the respondent board to initiate any disciplinary action against the petitioner. As the matters now placed on board abundantly tend to indicate that the interpolation was made subsequently, the only possible conclusion is that at no point of time the board has decided to initiate disciplinary proceedings against the petitioner, as rightly pointed out by the learned Senior Counsel for the petitioner.
16. It is relevant to note that when the disciplinary action was taken, the petitioner was holding the post of Chief of Generation which was an appointment made by the Government. By Ext.P5 he was temporarily removed from the post and reposted as Chief Engineer (Civil). As the petitioner was appointed by the Government, the order of penalty now imposed ought to have come up, either from the Government or a disciplinary authority duly appointed by the Government. It cannot be said that a Special Officer who even acting as the Chairman of the board can claim himself to be a disciplinary authority to impose punishment on the petitioner as an equivalent member of the board. The present order was passed by the Chairman exclusively acting as such.
17. Bringing down the petitioner from the post of Chief of Generation to the post of Chief Engineer and thereafter reducing him to the junior-most Chief Engineer amounts to reduction in rank. Therefore, it should have been in conformity with the requirement of Article 311 of the Constitution which requires that before imposing such punishment, the Government Servant should be heard in the matter of acceptance of his guilt. I say this because in the light of Ext.P14 and P15 government orders, the institution of KSEB no longer exist. It is discernible that the process of the Transfer scheme as well as the vesting and reverting of the rights and obligations in terms of 131(2) of the Act is on going. However, as a continuance of Exts.P14 and P15, the employees of the former KSEB are now employeess of the Government which status will continue till there is a reverting in a company to be formed in terms of the Transfer scheme. Ext.P10 notice issued by the second respondent who was the Special Officer is only one proposing punishment after accepting the guilt of the petitioner based on the enquiry report in the matter without hearing him. After the amendment of Article 311 of the Constitution by the 42nd amendment in 1976, the proposed show cause notice can be confined to the proposed acceptance of guilt alone and no separate show cause notice to the guilt is contemplated. However, in the present case, the petitioner has never been served with any show cause notice prior to the acceptance of the enquiry report. It is true that the copy of the enquiry report has been served upon him at his request. However, the show cause notice has been confined only to the proposed punishment. Therefore, the show cause notice issued was only to the proposed punishment after acceptance of an enquiry report and, therefore, there was no independent consideration as to the guilt or otherwise of the petitioner in the matter by the second respondent.
18. Now, coming to the allegations, it can be seen that out of 7 charges levelled against the petitioner, the petitioner stood exonerated on charge nos.2, 5, 6 and 6. What remains is the finding charge nos.1, 3 and 4 which are to the effect that the petitioner violated the standing orders issued by the board. The respondent board has a case that by Order No.211/2000 (TC.5.1510/1999) dated 22.1.2000,the Chief Engineer (Civil Construction) has been informed that any further works in the Lower Periyar Project should be taken by the CE (CC) only with prior permission of the Board.
Regarding this, following is the explanation given by the petitioner.
19. The work alleged to have been tendered without prior permission of the board was the work relating to the construction of stop logs yard and allied work at 'Pambla Lower Periyar Hydro Electrical Project'. Stop logs are 10 tonne heavy and 12 metre long structures used for the purpose of arresting the water when radial gates are to be repaired. The Lower Periyar dam was partially commissioned by using stop logs in the dam before completion of the work of radial gate and once the work of radial gate was completed, the dam would be made functional only after removing the stop logs. Therefore, according to the petitioner, there was urgency in removing the stop logs from the dam. The removed stop logs had to be properly stacked and stoked. Since the full functioning of the dam could not be effected due to non removal of the stop logs for want of adequate yard to stack and store the same, tenders have been invited by the concerned Deputy Chief Engineer on 22.1.1999. At that point of time, there was no direction contained in the order dated 22.1.2000 and the concerned Chief Engineer of the work was the Chief Engineer (World Bank Project). Thereafter, the post of Chief engineer (World Bank Project) was amalgamated with the post of Chief Engineer (CC).
20. The petitioner alleges that Sri. Mohanachandran, the then Chairman of the Board visited the site on 22.5.1999 along with a panel of experts. The petitioner was also present at that time. The panel of experts as also the Chairman has noticed that the commissioning of the project in full was being delayed due to non removal of the stop logs. Monsoon was also in the offing within a month. Taking into account the urgency of the situation, the Chairman directed the petitioner orally to go ahead with the work in question and to immediately arrange for removal of the stop logs from the dam so that the radial gates could be operated fully. However, even thereafter the work relating to the construction of the yard could not be taken up because of the delay from the office of the Chief Engineer (designs) in providing requisite design. Under the circumstances, 10 stop logs were temporarily removed and placed on the top of the dam. For want of yard, the remaining 32 stop logs were still lying in the dam gate preventing the full flow of water. By that time, the designs were received and the order dated 22.1.2000 had been issued. The petitioner alleges that as he met the Chairman Sri.Mohanachandran on 27.3.2000 and apprised him of the facts, the Chairman instructed him to proceed with the work since, according to him the work in question which had been tendered earlier would not come within the scope of the order dated 22.1.2000. It was accordingly the work was carried out and completed; so alleges the petitioner.
21. The learned Senior Standing Counsel for the respondent board, per contra, would submit that the Chairman of the board would not give such an oral direction in such matters, and the action of the petitioner without obtaining previous of the board is illegal.
22. It is relevant to note that the petitioner thereafter has chosen to write to the board on 12.4.2000 seeking ratification of the action in proceeding with the work. The said letter is produced as Ext.P7/40. The petitioner alleges that at the time of enquiry it was revealed that the said letter sent by the petitioner seeking ratification of the oral direction issued by the Chairman was never placed before him by the section during the tenure of his office as Chairman. Ext.P7/40 fortifies the case of the petitioner that he was orally permitted by the then chairman to proceed with the work.
23. It is pointed out that during the course of enquiry, the petitioner sought to have the former chairman Mohanachandran to be called as witness to prove the above. As the definite case of the petitioner was that he was acted on the basis of the oral direction of Mr. Mohanachandran, he alone was competent to verify the same. Ext.P18 shows that in the witness list submitted by the petitioner before the Enquiry Officer, Mohanachandran was indicated as witness to be examined on the side of the defence. Though he was summoned by the Enquiry Officer, he did not turn up. Therefore, the petitioner filed another application before the Enquiry Officer dated 7.2.2009 pointing out that the examination of the former Chairman was relevant and material, and requested that if his physical presence could not be secured, the petitioner be allowed to cause the examination of the said witness by appointment of a Commission. However, it was not permitted by the Enquiry Officer. The observation made by the Enquiry Officer in this regard is as follows:
“By way of adducing best evidence he has moved the enquiry officer to issue notice to Shri Mohanachandran the then Chairman for recording his statement. Anyhow, the presence of the witness could not be secured and the coercive steps were also not possible. The circumstances and the steps taken in this respect have already been mentioned earlier. Now the question remains whether absence of the then Chairman in the enquiry proceedings results in advantage to the delinquent officer.
The non-cross examination of the then Chairman as a witness in the enquiry does not lead to a presumption in favour of the delinquent. His evidence is not intentionally suppressed or kept away. Under any stretch imagination it cannot be said that there was intentional abstinence by Shri Mohanachandran, the then Chairman. It is beyond imagination that the Chairman may give oral instructions in the matter. It cannot be expected that he would state in the enquiry proceedings that he gave such an oral direction as stated by the delinquent employee especially when Ext.P4 order was issued while he was Chairman. Ext.P4 itself rules out the chance of any such oral direction by the Chairman.”
The aforesaid observation and conclusions are nothing but the imagination of the Enquiry Officer. The material evidence which the petitioner wanted to rely on was not allowed to be brought in causing serious prejudice to the petitioner.
24. It was further pointed out that the arrival of finding on each charge is a precondition for exercising an opinion as to the imposition of any of the major penalties, as per Regulation 16(11) of the Kerala State Electricity Board (CC&A) Regulations, 1969. The disciplinary authority is required under the Regulations to record its findings on each charge. Thereafter, a copy of the enquiry report along with statement of findings has to be furnished to the employee. In this case, the copy of the enquiry report along with the statement of findings has not been provided to the petitioner, in terms of the aforesaid Regulations.
25. Before I would conclude, I would like to add that the punishment imposed on the petitioner is disproportionate to the gravity of the alleged misconduct. The respondent cannot deny the fact that due to the timely action of the petitioner the board stood to gain several crores of rupees due to the full functioning of the dam with maximum storage. However, branding the action as misconduct and dereliction of duty, a severe punishment has been imposed on the petitioner. The allegation that the petitioner was facing other enquiries is not a justifiable reason to award a punishment like the one imposed on the petitioner.
26. On a consideration of the entire materials now placed on record, this Court is of the definite view that the petitioner is entitled to succeed.
In the result, the writ petition is allowed. Ext.P13 is quashed. It is hereby declared that the petitioner is entitled to be treated with due seniority de hors Ext.P13 and he is entitled to the resultant position that he would have held, had Ext.P5 not been issued. The first respondent is directed to place the petitioner forthwith in the same position as he would have been if Ext.P5 had not been issued. Needless to say that the petitioner is entitled to all consequential, monetary and service benefits.
Sd/- A.V.RAMAKRISHNA PILLAI JUDGE krj true copy P.S.TO JUDGE