IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20825 of 2008(D)
1. A.VIDHYADHARAN , ANIYIL HOUSE
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD
... Respondent
2. CHIEF ENGINEER (HRM)
3. THE DEPUTY CHIEF ENGINEER
For Petitioner :SRI.DEEPU THANKAN
For Respondent :SRI.K.S.ANIL, SC, KSEB
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :17/12/2008
O R D E R
P.N.RAVINDRAN, J
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W.P.(C) NO:20825 of 2008
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Dated this the 17th day of December, 2008
JUDGMENT
The petitioner was an Assistant Executive Engineer in the
Kerala State Electricity Board. During the period from 31-5-2003 to
23-7-2005, he was the Assistant Engineer in charge of Electrical
Section, Aluva Town. Under the Electrical Section, Aluva Town there
are 17000 consumers including 600 industrial consumers out of whom
27 are HT consumers. There is also an industrial estate in South
Vazhakulam which falls within Electrical Section, Aluva Town. The
pleadings disclose that in the Electrical Section, Aluva Town 11 K.V
line has been drawn for a length of 60 kms and there are 110
transformers. On 11-5-2005, the Anti Power Theft Squad (APTS for
short) of the Kerala State Electricity Board inspected the premises of
M/s.Aluva Techno Rubbers, a HT consumer. The inspection lasted
from 9 AM to 10 PM. The petitioner was present through out the
inspection. On inspection, it was found that the said consumer had
committed theft of electrical energy by providing a contractor in the
under ground cable between the current transformer/power
transformer and the meter box. This was detected after 7 hours of
inspection and that too after verifying the power supply in a similar
factory situate within the limits of the Electrical Section at
Kizhakkambalam.
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2. Pursuant thereto, Ext.P1 memo dated 23-7-2005 was issued
by the Deputy Chief Engineer alleging that the petitioner did not take
steps to detect the theft of electrical energy by M/s.Aluva Techno
Rubbers, that thereby he failed to carry out his official duty and that his
action amounts to dereliction of duty resulting in revenue loss to the
Board. The petitioner was also called upon to show cause why
departmental action should not be taken against him as per the Kerala
State Electricity Board Employees Classification, Control and Appeal
Regulations, 1969. On receipt of Ext.P1 memo of charges, the
petitioner submitted Ext.P2 reply pointing out that as theft was
committed by laying an under ground cable and as there was no
external manifestation of any attempt to commit theft of energy, the
theft of energy went unnoticed. He also pointed out that there was no
sudden increase or decrease in the consumption pattern and therefore
he did not suspect any tampering with the electrical installation. He
also pointed out that there was no tampering with the meter or in the
transformer and therefore he had no reason to suspect theft of energy.
3. After Ext.P1 memo was issued, the petitioner was regularly
promoted to the category of Assistant Executive Engineer. Thereafter,
the files relating to the departmental action were transferred by the
third respondent to the second respondent, the competent disciplinary
authority. Along with the files, the third respondent had sent Ext.P3
letter to the second respondent inter alia stating that the petitioner and
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the Sub-Engineer have worked under him for a considerable long
period, that they were loyal and obedient and that their work and
character were satisfactory. However the second respondent Chief
Engineer proceed to issue Ext.P4 memo of charges dated 26-10-2006
to which the petitioner submitted Ext.P5 reply. However there was no
progress in the departmental enquiry and while matters stood thus, the
petitioner retired from service on 31-12-2007 on attaining the age of
superannuation.
4. After the petitioner retired from service, the Assistant
Executive Engineer in charge of Electrical Division Aluva issued Ext.P6
Non Liability Certificate dated 16-2-2008 certifying that no liability is
outstanding against the petitioner while he was working in the
Electrical Division at Aluva and that the said certificate is issued
subject to the finalisation of the departmental action initiated as per
Ext.P4. The petitioner thereupon submitted Ext.P7 representation
dated 21-2-2008 to the second respondent requesting for disbursement
of terminal benefits. Thereafter, the second respondent sent Ext.P8
letter dated 2-4-2008 to the Executive Engineer Electrical Division,
Aluva, sanctioning a minimum pension of Rs.1275/- to the petitioner
and family pension of 1275/-+Dearness Relief to his wife in the event of
his death. All other pensionary benefits were withheld for want of
vigilance clearance certificate. The petitioner thereupon submitted
Ext.P9 representation dated 18-6-2008 seeking disbursement of the
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terminal benefits in full. In Ext.P9 he also pointed out that
Sri.Parameswaran Nair, the Sub Engineer of Electrical Section, Aluva
Town who was also proceeded against in relation to the same incident,
was later promoted as Assistant Engineer and given all terminal
benefits after his retirement from service on 31-5-2006. This writ
petition was thereafter filed seeking the following reliefs:
i) issue a writ of mandamus or any other appropriate
writ, order or direction directing the respondents 1
and 2 to finalise the proceedings initiated on the
basis of Ext.P1 and P4 on the basis of Ext.P2, P3
and P5 and release the full pension and all
terminal benefits with interest to the petitioner.
ii) issue a writ of mandamus or any other writ or order,
direction directing the respondent to release the full
pension and to pay all terminal benefits to the
petitioner with interest from 1-1-2008 till the date
of payment.
5. The second respondent has filed a counter affidavit contending
inter alia that disciplinary action was initiated against the petitioner for
lack of supervision. Reference is made to the surprise inspection
conducted by Anti Power Theft Squad in the premises of M/s.Aluva
Techno Rubbers, a consumer of the Board. The counter affidavit
proceeds to state that following the surprise inspection an invoice for
Rs.87,81,097/- was issued to the consumer, that the consumer
thereupon filed W.P(C) No. 24397 of 2007 in this Court, that by virtue
of the interim order passed in the said writ petition and on the appeal
filed by the consumer before the Appellate Authority, the consumer has
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remitted the sum of Rs.53,47,055/-, that the sum of Rs.31,94,110/- is
still due from the consumer, that the disciplinary action against the
petitioner has not so far been finalised and that as the departmental
action is pending, minimum pension alone was sanctioned to him. The
respondents contend that under Rule 3 of Part III of the Kerala Service
Rules they are entitled to recover from the petitioner, the pecuniary
loss caused to the Board and that as the petitioner is being proceeded
against for lack of supervision, his pensionary benefits cannot be
disbursed before the departmental action is finalised.
6. From the materials on record that it is evident that the
petitioner who was the Assistant Engineer and his subordinate
Shri.Paramesaran Nair who was the Sub Engineer, were proceeded
against after theft of electrical energy in the premises of Aluva Techno
Rubbers was detected. Both of them were also promoted to the next
higher posts. Sri.Parameswaran Nair was promoted from the category
of Sub Engineer to the category of Assistant Engineer and the
petitioner was promoted to the category of Assistant Executive
Engineer. Sri.Parameswaran Nair, retired from service on 31-5-2006
on attaining the age of superannuation. Though departmental action
was pending against him and a memo similar to Ext.P1 had been issued
to him also in the year 2005, on his retirement, the terminal benefits
were disbursed in full. The stand now taken by the Board is that as the
Sub Engineer who was later promoted as Assistant Engineer retired
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from service on 31-5-2006, it was not possible to continue the
departmental action against him and therefore his terminal benefits
were fully disbursed. However, in the case of the petitioner, the stand
taken by the Board is that since the departmental action is pending, the
terminal benefits cannot be disbursed.
7. The materials on record disclose that it was the Sub Engineer
who was the person immediately concerned with the reading of the
meter and periodical inspection of the installation. Though the
petitioner was not bound to take the meter reading he had a duty to
inspect the installation. According to the petitioner there were no
visible signs of tampering with the meter or the transformer and there
was also no sudden decrease or increase in the consumption of energy.
He has also stated that the Board is not equipped to detect tampering
made under ground and that it was after 7 hours of intensive search
that theft of energy through an under ground cable was detected. In
these circumstances, the petitioner submits that he cannot be said to
be negligent in the discharge of his duties. The petitioner also submits
that if pensionary benefits can be disbursed to the Sub Engineer who
was the man in charge of the meter reading and inspection of the
installation, there is no reason why the petitioner who is a superior
officer, should be denied the same. If as contended by the Board, there
was negligence in the discharge of duties on the part of the Sub
Engineer and the Assistant Engineer, I find no merit in the stand taken
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by the respondents that the terminal benefits were disbursed to the
Sub Engineer, since the departmental enquiry could not be continued
against him after his retirement. Rule 3 of Part III of the KSR applies
to Sub Engineers and Assistant Engineers. In the case of the Sub
Engineer, the Board decided not to recover any portion of the
pecuniary loss arising out of the theft of electrical energy. However in
the case of the petitioner the stand taken by the Board is that his
pensionary benefits cannot be sanctioned or disbursed until the
departmental action is finalised.
8. From the materials on record it is evident that the stand
taken by the Board is arbitrary. The Board has no case that in the
normal course of inspection the theft could have been detected. The
Board has not denied the positive averment made by the petitioner that
the theft could be detected only after 7 hours of intensive search and
that theft was committed by laying an under ground cable. In these
circumstances, I am of the considered opinion that there is no merit in
the stand taken by the Board that there was negligence on the part of
the petitioner in detecting the theft of energy. The Board also does not
dispute, the averment made by the petitioner that the Board is not
equipped to detect theft of energy through under ground cables and
that theft of energy could have been detected only by digging up
premises through which the under ground cable is laid. Further it is
now conceded by the Board that the consumer has paid the sum of
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Rs.53,47,055/- and that the writ petition filed by the consumer
challenging the demand made by the Board is pending in this Court.
Having regard to the facts and circumstance set out above, I am
persuaded to take the view that the stand taken by the Board in Ext.P8
is not tenable. In the result, I dispose of the writ petition with a
direction to the respondents to fix the terminal benefits payable to the
petitioner and disburse the same within four months from today.
P.N.RAVINDRAN,
JUDGE
bps