R. Christudas vs Kerala State Electricity Board and Others

K. Vinod Chandran, J.—1. The petitioner is before this Court challenging the punishment imposed at Ext. P2 by the Disciplinary Authority confirmed in Ext. P3 on appeal and Ext. P4 in revision. A review filed was also rejected as per Ext. P5. The punishment imposed was barring of two annual increments with cumulative effect. The period of suspension was also treated as suspension itself.

The procedural irregularities are alleged on three grounds, one that the Enquiry Officer himself had passed the order at Ext. P2 as the Disciplinary Authority. The further contention raised is that the appellate order was passed by an Executive Engineer-in-charge of the post of Deputy Chief Engineer and the same is in violation of Regulation 34 of the Kerala State Electricity Board Employees'' (Classification, Control and Appeal) Regulation, 1969. One another contention raised is that the Enquiry Officer had proposed a punishment and also proposed that the suspension period may be treated as suspension itself, which was impermissible. As to the findings in the enquiry, the petitioner contends that it is based on statements, presumably made by two other consumers of the locality, who is said to have witnessed the incident, but who did not turn up for the enquiry, thus denying the petitioner an opportunity to cross-examine them.

The procedural irregularity with respect to the Disciplinary Authority and the Enquiry Officer being the same may not be sustainable, especially since the Disciplinary Authority appoints an Enquiry Officer only to collect the evidence and arrive at a finding which does not bind the Disciplinary Authority at all and the Disciplinary Authority could either accept the findings of the Enquiry Officer or differ from it. It is also an accepted procedure if the Disciplinary Authority himself goes ahead with the enquiry proceedings. The appointment of an Enquiry Officer at best, is a measure of convenience. However, what is specifically pointed out is that the Executive Engineer, who was the Disciplinary Authority of the petitioner, had appointed one Assistant Executive Engineer as the Enquiry Officer by name David Xylem as is revealed from the counter affidavit. The said Assistant Executive Engineer was then promoted as the Executive Engineer and he passed Ext. P2 order. There is definitely an irregularity insofar as the enquiry report was by the officer, who was in a subordinate post, when the enquiry was conducted and then acted as the Disciplinary Authority, when promoted to the post of Executive Engineer. In this context, the proposal of the punishments, made by the Enquiry Officer, also assumes significance.

The contention with respect to Regulation 34 however is not sustainable. Regulation 34 only says that when the person, who made the original order becomes the appellate authority by virtue of a subsequent appointment, then such appeal shall be forwarded to the higher authority to which he immediately is subordinate. In the present case, there is no contention that David Xylem, who acted as the Enquiry Officer and the Disciplinary Authority, occupied the post of Deputy Chief Engineer, when the appeal was rejected. The contention is only that there was no Deputy Chief Engineer occupying the post at that point of time and the Executive Engineer-in-charge has passed Ext. P3 order. The contention hence would be that the person, who passed the initial order and the appellate order both had the same designation. Regulation 34 is only with respect to the same person acting as the Disciplinary Authority and the appellate authority and not with reference to the designations held by the respective authorities. The appellate authority was an officer, who at that point of time was holding charge of the Deputy Chief Engineer and he cannot be said to be occupying a lower post. Hence the said contention has to be rejected.

The further contention is about the findings of the Enquiry Officer and the Disciplinary Authority being vitiated for lack of sustainable evidence. One has to look at the enquiry report, produced at Ext. P1. The charges alleged against the petitioner, who was an Overseer was that he attempted to shift an electric post, unauthorisedly, to help a consumer and in that process, the Electrical Worker who accompanied the petitioner, died of electrocution. The allegation was that while attempting the transfer of the post, without receiving pre-deposit from the consumer and without proper authorisation, supervisory lapses in having not ensured that there is no supply in the lines, caused the death by electrocution.

The Enquiry Officer itself has categorically found that there is no evidence to show that the petitioner had attempted the shifting of an electric post. It was categorically held that the prosecution could not establish the attempt of unauthorized shifting of post, against the delinquent employee. Having held so the Enquiry Officer proceeded on the ground that " there is something wrong" and relied on the statements made by two other consumers, who were included in the list of witnesses produced by the Presenting Officer. Two consumers one K. Velappan Nair and Santhi, having respectively consumer numbers T.P.M 2955 and T.P.M 1432, were arrayed as PW 2 and PW3 by the Presenting Officer. Both of the witnesses did not turn up for the enquiry but the Enquiry Officer relied on the statements filed by the two persons at the preliminary stage, when the incident occurred.

The work attempted by the petitioner and the Electrical Worker was established to be one which was registered as a complaint at the Board''s Office and was one termed "fuse-off call". Admittedly both the Overseer and the Electrical Worker were at the work site, and in the course of the work, the death was occasioned by electrocution. The supervisory lapses were found on the basis of the statement made by one of the consumers that he saw the petitioner running to take off the fuse after the incident occurred. It was also stated by the two proposed witnesses, in their written statement that there was supply in their houses in the locality, when the work was going on. This is the only evidence on which supervisory lapse was found.

As was noticed, both these persons were not produced before the Enquiry Officer and the petitioner was not given a chance to cross-examine the witnesses. The Enquiry Officer ought not to have placed any reliance on the said statements made by the two proposed witnesses, going by the binding precedent of the Hon''ble Supreme Court reported in Nirmala J. Jhala v. State of Gujrat and Another [, 2013 (4) SCC 301]. The Hon''ble Supreme Court categorically found that the evidence gathered at the preliminary enquiry cannot be used in the regular one conducted, with the participation of the delinquent. The evidence relied on must be one which the delinquent was confronted with and permitted to controvert. It was also held that though the doctrine of ''proof beyond all reasonable doubt'' is not applicable to departmental proceedings there should at least be a preponderance of probabilities; since the proceedings are quasi judicial in nature. The supervisory lapses found in the enquiry was on the basis of statements of alleged witnesses who were not examined at the enquiry. The allegation that the petitioner did not remove the fuse before starting the work, was found proved only on the basis of the statement made by one of the proposed witnesses. The further findings are based on surmises and conjectures making the report a mere farce.

In such circumstance, there could be no supervisory lapses found against the petitioner on the basis of the evidence adduced at the enquiry. The order at Ext. P2 is found to be bad for procedural irregularities and also for the reason that the findings in the enquiry are based on totally extraneous considerations. Exts.P2, P3, P4 and P5 hence would stand set aside. The petitioner''s increment shall be restored and the entire arrears computed and paid within a period of three months from the date of receipt of a certified copy of this judgment. The petitioner''s pension shall also be revised in accordance with the last pay drawn as directed herein and the arrears paid within the above time limit.

The writ petition would stand allowed. No costs.