Joseph Froid Periara vs Kerala State Electricity Board And Ors

This writ petition is filed with the following prayers:-

“i. To declare that the entire disciplinary proceedings culminated in the orders Exts.P7 and P20 are violative of Article 14,16,19 and 21 of

Constitution of India and rules pertaining to the disciplinary proceedings.

ii. Call for the records leading up to Exts.P7 and P21 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order

or direction.

iii. To issue a Writ of Mandamus commanding the respondents to reinstate the petitioner in service forthwith, with all consequential benefits including

seniority and salary arrears.â€​

Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents.

The petitioner challenges Exhibit P20 order passed in appeal on the ground that the specific directions contained in Exhibit P17 judgment of this

Court have been ignored while issuing the same.

It is submitted that the petitioner had challenged the order imposing the punishment of removal from service by filing an appeal in terms of the

Kerala State Electricity Board Employees (Classification, Control & Appeal) Regulation. By Exhibit P9 order, the appellate authority rejected the

specific contentions raised by the petitioner, but decided to modify the punishment as compulsory retirement. The said order was again challenged by

the petitioner by filing W.P.(C).No.27655 of 2015. The said writ petition was disposed of by Exhibit P13 judgment directing the second respondent to

reconsider the appeal preferred by the petitioner, considering his specific contentions. Thereafter, Exhibit P14 order was passed, which was again

challenged before this Court. This Court found that there was no proper consideration of the appeal. On the said finding, Exhibit P14 was set aside

and a fresh consideration of the appeal was ordered. Thereafter, Exhibit P16 order was passed, upholding the punishment, which again came to be

challenged. By Exhibit P17 judgment, the entire aspects of the matter were examined by this Court. The specific contentions of the petitioner were

recorded and the appellate authority was directed to reconsider the appeal on the specific ground pointed out by the petitioner. Exhibit P20 is the order

passed in appeal pursuant to Exhibit P17 judgment. The petitioner challenges Exhibit P20 on the ground that the specific grounds directed to be

considered in Exhibit P17 have not been considered even while passing Exhibit P20 order. It is submitted that in Exhibit P17 judgment, especially

paragraph 17 to 24 thereof, would show that the specific contentions of the petitioner with regard to bias, non supply of the material which was relied

on in the enquiry to the petitioner, reliance on material which was never put to the petitioner in the enquiry, reliance placed on a confession statement

of another employee, who had not been cited as a witness in the enquiry, and the absence of specific charges had not been considered by the

appellate authority in Exhibit P20. It is contended that the finding that there was no procedural irregularity or violation of the principles of natural

justice is completely against the facts. It is stated that the finding in Exhibit P20 is to the effect that the slight deviations in the procedure did not

prejudice the petitioner and therefore, the petitioner cannot rely on those aberrations to challenge the punishment imposed on him. It is submitted by

the learned counsel for the petitioner that the valid contentions urged by the petitioner as against the enquiry and the procedure followed for imposing

punishment had been accepted by this Court in Exhibit P17 judgment. This Court had held that the enquiry authority and the disciplinary authority have

to record their findings on each of the charges with the reasons thereof and that the said procedure had not been complied with by either of the said

authorities, apart from highlighting the specific contentions of the petitioner. This Court in Exhibit P17 had held as follows:-

“The inquiry authority in the conclusive part of his report has made a general statement that for the reasons and facts noted above and detailed

above, all the charges against both the accused are proved. Obviously, such general finding by the enquiry officer does not satisfy the mandate of the

Regulations. The disciplinary authority also in his Exhibit P7 order imposing penalty, has not come to the conclusion of the guilt of the petitioner on

each of the charges. To that extent, there is violation of the Regulations 1969.â€​

It was further found that the appellate authority, in spite of repeated directions, had not considered the specific grounds raised in the appeal by the

petitioner as against the enquiry report and the order imposing penalty. It was with the said observations that this Court in Exhibit P17 judgment

directed a reconsideration of the appeal. However, in Exhibit P20 appellate order also, the appellate authority continues to take an extremely casual

view of the matter. It is again found that the enquiry was conducted in substantial compliance with the principles of natural justice and that in view of

the serious nature of the allegations raised against the petitioner, the punishment of compulsory retirement was valid and legal.

The learned counsel for the petitioner places reliance on the provisions of the Kerala State Electricity Board Employees (Classification, Control &

Appeal) Regulation as also on the decision of the Apex Court in State of Andhra Pradhesh and others v. Sree Rama Rao [AIR 1963 SC 1723], State

of Bihar and others v. Phulpari Kumari (2020) 2 SCC 130 and State of Karnataka and another v. N.Gangaraj (2020) 3 SCC 423, Pokken v. Jessie

Estate [2001 KHC 589], Roop Singh Negi v. Punjab National Bank and others [2009 KHC 4143] in support of his contentions.

A counter affidavit has been placed on record by the respondents. It is contended therein that the specific grounds raised by the petitioner in the

appeal have been considered by Exhibit P20 and that the enquiry authority had come to conclusion that the petitioner was guilty of all the charges

leveled against him. It is submitted that the enquiry was conducted in substantial complaince with the procedure provided in the Regulations and that

the finding of guilt recorded against the petitioner was, therefore, fully sustainable. It is further submitted that the attempt of the petitioner is to rely on

minor procedural infractions to get over the substantiated findings of guilt as against him.

Several decisions of this Court and of the Apex Court are relied on to contend that the scope of interference by this Court in departmental enquiry

matters is extremely limited and that this Court should not embark on a fact finding enquiry in such matters.

I have considered the contentions advanced. The incident, which led to the initiation of the disciplinary proceedings, occurred in the year 2006. A

full fledged enquiry appears to have been conducted against the petitioner. It is not in dispute before me that the enquiry report was not served on the

petitioner along with show cause notice. It is also not in dispute at this point in time that Exts.10(d), 10(e), 10(f) and 10(g), which were additional

documents produced by the respondents and which were not served to the petitioner have been relied on to find the petitioner guilty on at least some

of the charges. The respondents in Exhibit P20 order itself admit to some procedural infractions in the matter of the conduct of the enquiry as well as

the imposition of the penalty. However, the contention appears to be that the infractions are not so grievous as to vitiate the proceedings or the

imposition of the penalty.

10.Having considered the findings in Exhibit P17 judgment, I am of the opinion that the contentions raised by the respondents that the petitioner is not

prejudiced by the findings in the enquiry and resultant imposition of penalty without giving him a due opportunity to meet the contentions raised against

him cannot be accepted. This is more so in view of the fact that the specific failings in the procedure had been examined by this Court in Exhibit P17

judgment and the matter was remanded to the appellate authority to consider those aspects on their merits. The continued generalization and vague

statements, relying on the nature of the allegations against the petitioner, cannot be accepted. In view of the specific findings contained in Exhibit P17,

I am of the opinion that Exhibit P20 also does not amount to a proper consideration of the appeal preferred by the petitioner on the specific grounds

raised by him as has been directed by this Court on repeated occasions.

In the above view of the matter, this Court is compelled to set aside Exhibit P20 order and direct a reconsideration of the appeal on its merits. The

specific contention of the petitioner that additional documents, copies of which were never served on the petitioner, had formed the basis for the

findings of guilt against him on the charges and that the enquiry report and the imposition of the penalty were vitiated by procedural infractions are

liable to be considered by the appellate authority in accordance with law.

In the above view of the matter, Exhibit P20 is set aside. There will be a direction to the appellate authority to reconsider the appeal in accordance

with the directions contained in Exhibit P17 judgment and pass appropriate orders on the same, within a period of two months from the date of receipt

of a copy of this judgment.

Writ petition is ordered accordingly.