IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 9181 of 2002(R)
1. S.SHEREEF RAWTHER S/O.SHAHUL HAMEED,
... Petitioner
Vs
1. KERALA STATE ELECTRICITY BOARD,VIDYUTHI
... Respondent
2. DEPUTY CHIEF ENGINEER,KERALA STATE
3. EXECUTIVE ENGINEER,KERALA STATE
4. DEPUTY CHIEF ENGINEER,TRANSMISSION
5. K.THANKAPPAN CONTRACTOR,PARAKKAL
For Petitioner :SRI.M.M.ABDUL AZIZ (SR.)
For Respondent :SRI.P.SANTHALINGAM, SC, KSEB
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :17/12/2008
O R D E R
T.R. Ramachandran Nair, J.
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O.P. No.9181/2002-R
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Dated this the 17th day of December, 2008.
J U D G M E N T
The petitioner seeks to challenge Exts.P5 to P8 and further seeks a
declaration that he is not liable to pay the value of unreturned unutilised
balance materials for which a liability has been fixed as per Exts.P2 and P5.
2. The brief facts are the following:-
He was a Assistant Engineer in the K.S.E.B at the time of filing of the
writ petition. While he was working as Sub Engineer at Electrical Major
Section, Charummood, the then Assistant Engineer at the said station retired
from service on superannuation in November 1994. The petitioner was in-
charge of the Assistant Engineer, Electrical Major Section, Charummood for
the period from 01/12/1994 to 03/05/1995. Construction was in progress
for drawing a new 11KV single circuit line from 110 KV Sub-Station,
Edappone to Kattanam and a contractor engaged by the K.S.E.B was
performing the work. Fifth respondent was the contractor and as per the
agreement executed by him, materials required were to be supplied by the
K.S.E.B. By Ext.P2 memo, the petitioner was informed that the Board had
suffered heavy loss due to non-accounting of valuable materials as per
MASA. The liability has been fixed at Rs.3,41,989/-. He was directed to
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clear the liabilities within 30 days from the date of receipt of the memo and he
was also informed that if it was not paid, action would be taken to recover it as
per the rules. He submitted Ext.P3 explanation seeking to drop the action
proposed. An opportunity of being heard was also sought. Thereafter, Ext.P4
was issued to him stating that the liability already fixed against him still holds
good and that the matter was being reported to the higher authorities for
initiating disciplinary action against him and also for recouping the loss. The
amount covered by Ext.P2 was modified by Ext.P5 by the same officer and the
liability was reduced to Rs.2,33,502.60. Through Ext.P6, recovery of the said
amount from his salary and other claims, was mooted. Ext.P7 is the memo of
charges, issued pursuant to the disciplinary action initiated and Ext.P7(2) is the
statement of allegations. Ext.P8 is the letter given by the petitioner to the
Deputy Chief Engineer informing that the direction to pay the amount with
interest is against rules and highly irregular, but he is prepared to remit the
amount of liability and at the same time he may be exonerated from payment of
interest.
3. The petitioner challenges the proceedings against him on various
grounds. It is submitted that the materials were supplied to the contractor on
proper receipt and, therefore, the question of liability for those materials
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supplied to the contractor for the work that was being executed for the K.S.E.B,
cannot arise on his part. It is therefore, pointed out that there is gross violation
of the rules and that the liability has been fixed without any notice to him and
without giving an opportunity for him to object and, the quantification itself is
thus vitiated. Even the explanation given in Ext.P3 have not been properly
verified by the Executive Engineer and Ext.P4 is rather cryptic. None of the
points have been answered therein. It is therefore, submitted that the entire
action initiated culminating in the disciplinary proceedings is without any legal
sanction.
4. The respondents have filed a detailed counter affidavit. The stand
taken in the counter affidavit is that the materials issued to the work should
have been properly accounted through materials consumption statement. The
petitioner is only trying to evade his responsibility without making any earnest
efforts to settle the matter. It is further submitted in paragraph (6) that even
though the petitioner requested in Ext.P3 to give him an opportunity of being
heard, as the third respondent was fully convinced of all the matters and had no
doubt in the matter, no personal hearing was found necessary.
5. It is not known how the liability was fixed as per Ext.P2 and how
the amount was arrived at. Later it was reduced also. Normally when such
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monetary loss is alleged on the part of the person concerned and when he is
asked to recoup the said loss, the principle of natural justice requires that the
person should be given an opportunity to put forward his objections in the
matter before the loss is fixed. That is totally absent here as evident from the
proceedings Ext.P2 itself. What is attempted to be done by Ext.P2 is to inform
the petitioner of the liability to the tune of Rs.3,41,989/- and asking him to
clear the said liability within 30 days. Even though he submitted an explanation
Ext.P3, none of the points referred to therein have been adverted to while
rejecting it by Ext.P4. Even in Ext.P4, no answer is attempted as to how the
liability was fixed and the request to verify the documents is not seen answered.
But later by Ext.P5, the amount has been reduced to Rs.2,33,502.60. Exts.P2
and P5 thus cannot stand as the same violates the principles of natural justice.
He should have been given a proper notice before any quantification was
arrived at, of the alleged loss. Further it is pointed out that the matter is
governed by Kerala Civil Services (CC & A) Rules, 1960 and, therefore, only
by resorting to the said rules alone, proceedings can be initiated and finalised.
No punishments have been imposed as per the said rules, including recovery
from pay, It is only after directing recovery, Ext.P7 was issued. It is true that a
disciplinary action has been proposed separately, even then it is elementary that
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before fixing the liability on any account, the petitioner should have been given
an opportunity. For all these reasons, I find that Exts.P2 and P5 cannot be
sustained. Therefore, I quash the same.
6. Even though it is contended by the respondents that going by
Ext.P8, the petitioner volunteered to remit the amount, in the light of the fact
that the same is only pursuant to the proceedings which are highly irregular, no
sanctity can be attached to it. Even in Ext.P8 he has made it clear that the
direction issued to him is against the rules and, highly irregular. Once the basis
of the order goes, the same cannot have any effect at all.
7. Thus what remains is the finalisation of the disciplinary
proceedings and fixation of liability, if any. It is reported that the petitioner has
retired from service. Therefore, it is upto the competent authority to take a
decision as to the manner in which the disciplinary action could be proceeded
against the petitioner and liability, if any, could be recovered from him. Leaving
open the said right of the respondents, I allow this writ petition. No costs.
(T.R. Ramachandran Nair, Judge.)
ms
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ORDER ON C.M.P.NOS.16381/2002 & 21390/2003
IN O.P No.9181/2002
DISMISSED.
SD/-T.R.RAMACHANDRAN NAIR, JUDGE
17/12/2008
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P.A TO JUDGE
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T.R. Ramachandran Nair, J.
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O.P. No.9181/2002-R
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J U D G M E N T
1 7t hD e c e m b e r , 2 0 0 8 .