IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18682 of 2005(Y)
1. V.G.RAJAN, RTD.SUPERINTENDENT,
... Petitioner
Vs
1. THE KERALA STATE ELECTRICITYBOARD,
... Respondent
2. THE DEPUTY CHIEF ENGINEER,
3. THE ACCOUNTS OFFICER,(PENSION AUDIT),
For Petitioner :SRI.S.RAMESH BABU
For Respondent :SRI.K.S.ANIL, SC, KSEB
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :02/03/2010
O R D E R
S. Siri Jagan, J.
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W.P(C) No. 18682 of 2005
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Dated this, the 2nd day of March, 2010.
J U D G M E N T
The petitioner retired from the service of the Kerala State
Electricity Board as a Superintendent on 30-9-2004. Prior to his
promotion as Superintendent, the petitioner was working as Assistant
Store Keeper, Transmission Circle, Nallalam. When he was to be
relieved from the post of Assistant Store Keeper, the petitioner was
directed to hand over the materials under his custody to the Store
Keeper. In spite of repeated directions, he did not do so. He actually
handed over the materials under his custody only after 8 years. On
verification of the stock in his custody, shortage of materials as
detailed in Ext. P 5 were detected. Disciplinary proceedings were
initiated against the petitioner for disobedience of lawful orders of the
superior authorities, dereliction of duty causing loss to the Board and
misappropriation of materials belonging to the Board. An enquiry
was conducted in which the petitioner participated. After considering
the evidence adduced in the enquiry, the enquiry officer submitted
Ext. P6 report finding the petitioner guilty of gross misconduct,
dereliction of duty, insubordination and misappropriation of the
properties of the Board amounting to Rs. 8,24,441/-. Based on that
enquiry report, Ext. P7 order was passed by the disciplinary authority
directing recovery of the amount of Rs. 8,24,441/- from the
petitioner. Since the petitioner did not pay the same, the amounts
were sought to be recovered from his retirement benefits and
retirement benefits were withhold except minimum pension at the
rate of Rs. 1275/-. It is under the above circumstances, the petitioner
has filed this writ petition seeking the following prayers:
“a. issue a writ of certiorari calling for the records leading upto
Ext. P 6 and quash the same.
W.P.C. No. 18682/2005 -: 2 :-
b. issue a writ of mandamus commanding the respondents to
forthwith sanction disburse gratuity (Rs.3,50,000/-), provident
fund (Rs.55,466/-), pension commutation (Rs. 3,25,607/-) terminal
leave surrender (Rs.64, 728/-), arrear D.A (Rs. 55,547/-) as also full
pension from 10/2004 onward forthwith to the petitioner with
statutory interest thereon at 12% per annum till the date of
payment.”
2. A statement has been filed by the Kerala State Electricity
Board seeking to justify their action. The petitioner has also filed a
reply affidavit.
3. I have considered the rival contentions in detail.
4. As far as the challenge against Ext. P6 is concerned, the
petitioner does not contend that the enquiry proceedings are vitiated
by violation of principles of natural justice or procedure prescribed
by rules. His only contention is that the findings are not correct. He
challenges the findings on grounds A, B and C of the writ petition
which read thus:
“A. The assumption in imposition of the huge liability is
that the petitioner has misappropriated the items though in fact it
is only a case of shortage in materials which arose because of
improper accounting as also irregular method of keeping and
distribution of materials and stock. A mere reading of Ext. P5
which is the statement prepared by the 2nd respondent for
imposition of the liability would show that the short items are not
items which would be the subject matter of misappropriation by
anyone much less the petitioner. The items are exclusively used
for Board’s purposes and Board being the sole purveyor of
Electricity in the State, these items or of any value in general.
This is more particularly so of those items in Ext. P5 of substantial
value which mainly consists of huge 66KV CT transformers each
valued up to Rs. 50,000/- By no stretch of imagination can a
charge be laid that the petitioner has misappropriated such large
items of particular use only for the Board. This is a case where
essentially due to inherent defects in the Board’s system of
storing, transporting and recording the usage of materials
shortages are seen in the accounts. These transformers metering
equipments and other materials required for supply of electricity
have in fact been used by the Board at various sites. But want of
proper records have hampered the petitioner and has resulted in
the “shortage” on paper. As a matter of fact there is no shortage.
However, the Board has without adequate enquiry as to theW.P.C. No. 18682/2005 -: 3 :-
whereabouts of the transformers etc., imposed liability on the
petitioner and even suggested that the petitioner has
‘misappropriated” the items found short.
B. Even a cursory reading of Ext. P5 shall undeniably
reveal the fact that imposition of huge liability pertains to
materials which cannot but be used by Kerala State Electricity
Board alone since they are monopoly items which are exclusively
reserved to be used by State Electricity Boards. For example item
Sl. No. 1 to 44, 58 to 61, 63, 66, 67, 68, 79, 81 to 90 are solely and
exclusively tower parts intended for the erection of High Tension
Towers carrying 220 KV/110 KV/66 KV High Tension lines. Under
the provisions of Electricity Supply and no individual or private
Company can erect such High Tension lines. The above tower
parts are designed with accurate slots and holes as per the
drawings of the tower and no parts can be used for any other
purposes except for which it is designed and moulded. More
particularly, they are galvanised bearing numbers of each part
and as such no body can use it for any other personal purposes as
they are significantly identifiable and traceable even for a layman.
Similarly, item no. 93 to 96 are current transformers which can be
used only in substations owned by the K.S.E.B. No private person
or private Company can erect or establish a substation. Likewise
item No. 101 to 119 are conductors and control cables which are
exclusively used in high tension lines and substations. No private
individual or establishment can utilize them in any way. Similarly,
item Nos. 126 to 180 are line materials which could be used only
in LT and HT Lines which are erected and owned by K.S.E.B. No
private individual or establishment can utilize the same for any
personal purposes since Electricity Supply Act does not permit
anybody else to draw electric lines either LT or HT or EHT.
Similar is the case with regard to other items also. The petitioner
affirms that only a negligible item amounting to 1% or 2% of the
total liability can be used for any personal purpose by anybody.
The controlling authorities who are technically competent and
qualified to understand the real aspects of the issue have
attributed these liabilities on the petitioner. A meticulous study of
the items listed for liability by any competent technical person can
reveal the fact that these items could be and can be used only by
Electricity Board ad none else can handle such items.
C. Besides as per the prevailing orders Assistant Engineers
were the actual custodian of stores and store materials. The
petitioner had no direct control of the stock yard and godown.
Most of the materials found short are stored and kept in the open
yard without proper fencing and watch and ward. The Assistant
Engineer had full control and custody of the stores materials and
in this bonafide interest of works he had issued such monopoly
and exclusive items without proper accounting. The Board has
issued clear cut directions and guidelines regarding the custody
and control of the stores materials. True copy of the same isW.P.C. No. 18682/2005 -: 4 :-
produced herewith and marked as Ext. P9. Several similar orders
were issued subsequently regarding the control and custody of the
stores being entrusted to the Assistant Engineers. Accordingly,
Assistant Engineer, Stores has been managing and controlling the
stores transactions. Besides the petitioner’s substitute Sri. N.K.
Kunju had issued numerous items of valuable materials to
different field officers in his absence and the petitioner had kept
photocopies of such intents and requisitions. Regarding the same
the petitioner has submitted several representations to his
controlling authorities true copy of one of which is produced
herewith and marked as Ext. P10. Ext. P10 evidences that
frequent issue of materials were done in the absence of the
petitioner and also proves that the delay in handing over is due to
the non-cooperation of his substitute Sri. N.K. Kunju who was
intensely interested in travelling with an aim of drawing travelling
allowances which very often amounted to Rs.1000 to 1500 per
month.”
On a reading of Ext. P6, I do not find that the petitioner has taken
such contentions before the enquiry officer, In fact, before the
enquiry officer, he did not dispute the fact that the stores were under
his custody. He also did not dispute the fact that on verification of the
accounts, shortage as detailed in Ext. P5 had been detected. The
petitioner heavily relies on the findings in Ext. P6 to the effect that
there was no evidence to show that the petitioner had amassed
wealth disproportionate to his known source of income. The
petitioner’s contention is that a mere look at the list of articles found
short as per Ext. P5, it is clear that none of the materials mentioned
therein are capable of being misappropriated and used by anybody
insofar as the same are monopoly items, which could have been used
by State Electricity Boards alone. According to the petitioner,
therefore, the petitioner could not have misappropriated the
materials. The petitioner’s contention is that in such circumstances,
the only conclusion possible is that there was no shortage and those
materials were actually used in the field, which was not properly
accounted.
5. I do not think that I can countenance such a contention. If
W.P.C. No. 18682/2005 -: 5 :-
I do so, then it would be utter chaos in the Electricity Board
because on the strength of such a finding anybody can get away with
even misappropriation. Before the enquiry officer, the petitioner did
not dispute the fact that the petitioner was the custodian of the stores
as the Assistant Store Keeper. He also did not dispute the fact that
materials worth Rs. 8,24,441/- were found short in the stock. Then it
is for the petitioner to explain the discrepancy. If the petitioner
cannot explain the discrepancy, even if there is no misappropriation,
the petitioner is bound to make good the loss caused to the Board.
That alone has been directed as per Ext. P7 order. Therefore, I do not
find anything wrong with Ext. P6 enquiry report or Ext. P7 order
directing recovery of an amount of Rs. 8,24,441/- from the petitioner.
6. The next question that arises for consideration is as to
whether the amounts can be adjusted against the retirement benefits
due to the petitioner. The amounts which have been withheld are
provident fund amount, gratuity amount, pension commutation
amount, terminal leave surrender salary and arrears of D.A. Before
dealing with this question, I have to consider an incidental question as
to whether the petitioner is entitled to gratuity as per the Payment of
Gratuity Act, insofar as in the statement filed by the Kerala State
Electricity Board, they have taken a contention that as per the Kerala
Service Rules which have been made applicable to employees of the
Board, the maximum gratuity payable is Rs. 2,80,000/-. But that
question is no more res integra insofar as a Division Bench of this
Court has already held that employees of the Kerala State Electricity
Board are entitled to gratuity as provided under the Payment of
Gratuity Act. Of course, the Electricity Board has taken that
judgment in appeal before the Supreme Court, which is pending.
However, unless the judgment of the Division Bench is reversed by
the Supreme Court, the petitioner is also entitled to gratuity as per
W.P.C. No. 18682/2005 -: 6 :-
the Payment of Gratuity Act. It is not disputed before me that going
by his last drawn salary, the petitioner is entitled to the maximum
gratuity provided in the statute. At the relevant time, the maximum
gratuity payable under the Payment of Gratuity Act was Rs.
3,50,000/-. Therefore, the petitioner is entitled to Rs. 3,50,000/-
towards gratuity.
7. The next question that has to be considered is as to which
all retirement benefits due to the petitioner can be adjusted against
the loss caused to the Board. The petitioner has not raised any
contention in respect of the same. But, I find that the provident
fund, terminal leave surrender salary and arrears of D.A can be
adjusted against the loss caused to the Board. As far as gratuity is
concerned, Payment of Gratuity Act permits forfeiture of gratuity in
cases where an employee is punished for misconduct involving loss to
the employer to the extent of the loss. Here, by Exts. P6 and P7, the
petitioner has been found to have been guilty of the misconduct of
loss to the Kerala State Electricity Board. Therefore, the amount of
gratuity to the extent of loss caused to the Board can be forfeited. As
such, the amount of gratuity of Rs. 3,50,000/- is liable to be forfeited
against the amount of Rs. 8,24,441/-.
8. But, it is a different question when it comes to commuted
value of pension and pension. Counsel for the Board was unable to
point out any provision of law, which permits recovery from pension
payable to an employee. In fact, the K.S.R prescribes recovery only
from DCRG and not from other retirement benefits. As such, the
pension commutation amount and actual pension cannot be
proceeded against for recovery of amounts due as per Ext. P7. In the
above circumstances, the petitioner is entitled to disbursal of the
commuted value of pension and pension due to him as per Rules.
There is a dispute as to whether the pension commutation amount is
W.P.C. No. 18682/2005 -: 7 :-
Rs. 3,24,607/- as claimed by the petitioner or whether it is
Rs. 2,73,431/- as stated in the statement filed. The petitioner has not
chosen to controvert the contention in the statement in the reply
affidavit filed by the petitioner. Therefore, I am inclined to accept the
figure in the statement as Rs. 2,73,431/-.
9. Admittedly, the petitioner has been paid only Rs. 1275/- as
minimum pension. There is no order of the Board withholding pension
from the petitioner under any provision of law. Therefore, the
petitioner cannot be denied pension due to him as per the Rules. In
the above circumstances, while repelling the challenge against Exts.
P6 and P7, I direct the respondents to pay to the petitioner the
commuted value of pension and regular pension due to the petitioner
in accordance with the rules as expeditiously as possible, at any rate,
within two months from the date of receipt of a copy of this
judgment. However, this would be without prejudice to the right of
the Board to recover the balance amount due from the petitioner out
of Rs. 8,24,441/- after adjusting those terminal benefits found to be
liable to be adjusted as above, by resorting to other remedies
available to them under law.
The writ petition is disposed of as above.
Sd/- S. Siri Jagan, Judge.
Tds/