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2021 DIGILAW 246 (KER)

Vijayan v. Kerala State Electricity Board Ltd.

2021-03-09

ALEXANDER THOMAS, K.BABU

body2021
JUDGMENT : ALEXANDER THOMAS, J. 1. The petitioner in W.P.(C). No.33134/2017 has filed the instant Writ Appeal under S.5(i) of the Kerala High Court Act, 1958, so as to impugn the judgment dated 28.1.2021 in W.P.(C).No. 33134/2017, to the extent it has denied the interest on the delayed payment of retirement benefits of due to the petitioner by the respondent Kerala State Electricity Board. 2. Heard Smt.Shameena Salahudheen, learned counsel appearing for the appellant in the W.A./petitioner in the W.P.(C) and Sri.M.K.Thankappan, learned Standing Counsel for the Kerala State Electricity Board (KSEB) appearing for the respondents in the W.A./respondents in the W.P.(C). 3. While the appellant/petitioner in the W.P.(C) was working as Assistant Engineer in the Electrical Section concerned of the respondent KSEB, the Anti Power Theft Squad (APTS) had conducted inspection in the premises of the consumer of the respondent KSEB on 23.1.2012 and had allegedly detected power theft. Consequently, the petitioner was served with Ext.P-4 memo/letter dated 21.1.2016 issued by the 5th respondent Executive Engineer, KSEB Electrical Division, Ernakulam, seeking his explanation in the delay in detecting power theft. The main defence of the appellant was that, the consumer in question had filed Ext.P-1 W.P.(C) No.17975/2014 before this Court challenging the impugned proceedings against him pursuant to the inspection conducted by the APTS and this Court as per Ext.P-2 judgment dated 30.7.2014 had directed that a revised bill will be issued to him limiting assessment to two years. 4. It is common ground that the respondent KSEB authorities had in fact complied with the directions in Ext.P-2 judgment. So, the appellant has contended that without challenging the judgment at Ext.P-2 rendered by this Court in the said W.P.(C) and without initiating disciplinary action against the petitioner, the respondents herein are estopped from proceeding further against the petitioner. It appears that the writ petitioner has retired from service on 30.4.2016. The abovesaid memo as per Ext.P-4 dated 21.1.2016 was issued by the respondents to the appellant prior to his retirement from service. It appears that, citing the pendency of the said proceedings at Ext.P-4 dated 21.1.2016, the retirement benefits of the petitioner was delayed. It is in the light of these aspects that the petitioner has filed the instant W.P.(C). No.33134/2017 seeking the following reliefs: [See pages 29 & 30 of the paper book of this Writ Appeal)]. It appears that, citing the pendency of the said proceedings at Ext.P-4 dated 21.1.2016, the retirement benefits of the petitioner was delayed. It is in the light of these aspects that the petitioner has filed the instant W.P.(C). No.33134/2017 seeking the following reliefs: [See pages 29 & 30 of the paper book of this Writ Appeal)]. “i. to issue a writ in the nature of mandamus directing respondents to sanction and disburse retirement benefits due to the petitioner including Pension in full, Death cum Retirement Gratuity, Commuted Value of Pension, Pension arrears, and DR arrears (Pension) and other attendant benefits attached thereto, at the earliest, within a time frame to be fixed by this Hon’ble Court; ii. to issue a writ in the nature of mandamus directing the respondents to pay penal interest at market rate on the delay caused in payment of terminal benefits due to the petitioner; iii. to call for records leading to Ext.P4 communication dated 21/01/2016 issued by the 5th respondent and all proceedings leading that and pursuant thereto and to issue a writ in the nature of certiorari to quash the same; iv. to declare that the acts of respondents insofar as proposing to initiate disciplinary proceedings against the petitioner pursuant to Ext.P4, even without issuing a memo of charges or show cause notice, subsequent to his retirement is illegal, improper, perfunctory, mala fide action in bad faith, arbitrary, baseless, ultra vires, and is against the provisions of Regulations of 1969; v. to mould and issue any other writ or direction appropriate in the circumstances of this case which this Hon’ble Court deems just, fit, proper and necessary and to grant cost of this proceedings to the petitioner.” 5. After hearing both sides the learned Single Judge has rendered the impugned judgment in the above W.P.(C). No.33134/2017 on 28.1.2021 recording the submissions of both sides that due to the pendency of this W.P.(C), the retirement benefits have already been paid to the petitioner/appellant. So, the only prayer that survived for consideration in the W.P.(C) was regarding payment of interests on delayed payment of retirement benefits. The learned Single Judge in paras. No.33134/2017 on 28.1.2021 recording the submissions of both sides that due to the pendency of this W.P.(C), the retirement benefits have already been paid to the petitioner/appellant. So, the only prayer that survived for consideration in the W.P.(C) was regarding payment of interests on delayed payment of retirement benefits. The learned Single Judge in paras. 7 to 9 of the impugned judgment in the W.P.(C) found that the ATPS had infact conducted surprise inspection on the premises of a consumer on 23.1.2012 and had detected power theft and gross irregularities were found in the meter reading, tariff applicable and the actual consumption, and the irregularities were assessed for the period from January, 2008. It was noted that the low consumption was as a result of installation of a faulty meter during the tenure of the petitioner. In Ext.P-2 judgment rendered by this Court in Ext.P-1 W.P.(C) filed by the consumer it was found that there was failure on the part of the KSEB. It is in the light of these aspects that the respondents had called for an explanation from the petitioner as per Ext.P-4 dated 21.1.2016 to which the petitioner had given reply on 22.2.2016. Later, the petitioner retired from service of the respondent KSEB and that it cannot be held that the respondent KSEB authorities have withheld the terminal benefits of the petitioner arbitrarily and capriciously and that the delay in payment of the retirement benefits have occurred only in these circumstances, and therefore this is not a fit case in the matter of award of interest on the delayed payment of retirement benefits of the petitioner in exercise of the discretionary powers conferred under Article 226 of the Constitution of India, etc. 6. After hearing both sides it is seen that Ext.P-4 explanation has been sought from the petitioner as early as on 21.1.2016, before the writ appellant had retired from service on 30.4.2016. From the submissions of both sides and from a reading of the pleadings and materials on record it is seen that the respondent KSEB authorities have issued Ext.P-11 proceedings dated 27.11.2017 stating that the enquiry officer will conduct an enquiry in matters against the various delinquent officials concerned including the appellant. Thereafter, it appears that the respondents have issued Ext.P-12 proceedings dated 21.5.2019 ordering that the proceedings against the appellant contemplated in Ext.P-11 will stand dropped. Thereafter, it appears that the respondents have issued Ext.P-12 proceedings dated 21.5.2019 ordering that the proceedings against the appellant contemplated in Ext.P-11 will stand dropped. From the submissions of both sides, during the pendency of said W.P.(C), the learned Single Judge has issued an interim order pursuant to which part of the retirement benefits were disclosed to the appellant. After the issuance of Ext.P-12 proceedings, the remaining retirement benefits were disclosed to the appellant as per Ext.P-13 dated 5.8.2019. 7. It is common ground that the respondent KSEB authorities have adopted the provisions contained in Part-III KSR for the purpose of dealing matters in relation to grant of retirement benefits and pensionary benefits to its employees. Hence it can be seen that Rule 3 of Part III KSR is applicable in the instant case. Ext.P-4 has been issued on 21.1.2016 which is before the retirement of the petitioner on 30.4.2016. A reading of Ext.P-4 would show that only an explanation is called from the petitioner and no memo of charges as contemplated in Rule 15 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960, or the corresponding provision in the Board Regulations relating to disciplinary proceedings against the employees has been issued against the petitioner at any point of time, prior to his retirement on 30.4.2016. A reading of Ext.P-4 issued by the Executive Engineer would indicate that the respondent KSEB has examined the report of the Executive Engineer, Electrical Circle, and has decided to initiate disciplinary action against the delinquent officers concerned. However, Ext.P-4 cannot be said to be issuance of memo of charges as contemplated in the rules regulating initiation of disciplinary proceedings as stated above. In view of the retirement of the petitioner from service on 30.4.2016, it is indisputable that the jural relationship of employer and employee has snapped as between the employer KSEB and the retired employee appellant. Hence, at best only disciplinary action could be taken only in terms of Rule 3 of Part III KSR. A reading of Ext.P-11 proceedings dated 27.11.2017 would also indicate that the same refers to a memo of charges dated 19.6.2017, which is referred to as paper No.2 in Ext.P-11. Both sides have not made available a copy of said memo of charges dated 19.6.2017 said to have been issued to the petitioner. A reading of Ext.P-11 proceedings dated 27.11.2017 would also indicate that the same refers to a memo of charges dated 19.6.2017, which is referred to as paper No.2 in Ext.P-11. Both sides have not made available a copy of said memo of charges dated 19.6.2017 said to have been issued to the petitioner. Assuming that a memo of charges has been on 19.6.2017 and for a moment we may assume that the said memo of charges dated 19.6.2017 referred to as paper No.2 in Ext.P-11 is in relation to the surprise APTS inspection conducted on 23.1.2012 and the irregularities covered therein for the period from January, 2008 etc. Since no memo charges has been issued against the appellant prior to his retirement from service on 30.4.2016, the respondent Board authorities can proceed only strictly in accordance with the procedure envisaged in Clause ‘b’ to the proviso to Rule 3 of Part III KSR. 8. Rule 3 of Part III KSR reads as follows: (Notes 1 to 3 under Rule 3 are not extracted as they are not relevant) “Rule 3. 8. Rule 3 of Part III KSR reads as follows: (Notes 1 to 3 under Rule 3 are not extracted as they are not relevant) “Rule 3. The Government reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service, including service rendered upon re-employment after retirement: Provided that- (a) such departmental proceeding, if instituted while the employee was in service, whether before his retirement or during his re-employment, shall after the final retirement of the employee, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the employee had continued in service; (b) such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment,- (i) shall not be instituted save with the sanction of the Government; (ii) shall not be in respect of any event which took place more than four years before such institution; and (iii) shall be conducted by such authority and in such place as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the employee during his service; (c) no such judicial proceedings, if not instituted while the employee was in service whether before his retirement or during his re-employment, shall be instituted save with the sanction of the Government, in respect of cause of action which arose or an event which took place more than four years before such institution; and (d) the Public Service Commission shall be consulted before final orders are passed. Explanation.- For the purpose of this rule- (a) a departmental proceeding shall be deemed to be instituted on the date on which the statement of charges is issued to the employee or pensioner or if the employee has been placed under suspension from an earlier date, on such date; and (b) a judicial proceeding shall be deemed to be instituted- (i) in the case of a criminal proceeding, on the date on which the complaint or report of the police officer on which the Magistrate takes cognizance is made; and (ii) in the case of a civil proceeding, on the date of presentation of the plaint in the court.” 9. In the instant case it appears that the incident of ATPS inspection said to have been conducted on 23.1.2012 and the alleged irregularities are in respect of the period from January, 2008. Since, memo of charges referred to in Ext.P-11 is taken only on 19.6.2017, the procedure and rigour of Clause ‘a’ to the proviso to Rule 3 of Part III KSR would come into play. In other words, even if the memo of charges would have been issued, the same shall not be in respect of an event which took place more than 4 years before its institution. Therefore, in such a case institution of the disciplinary proceedings should be treated as one instituted on 19.6.2017, viz. the date of issuance of abovesaid memo of charges. Therefore, the allegations should not be in respect of any event that taken place 4 years prior to 19.6.2017. In other words, the subject matter of the allegations cannot pertain to any event which has taken place prior to 19.6.2013. Obviously the basic incident which said to have happened is the surprise APTS inspection conducted on 23.1.2012 and the alleged irregularities are found out for the period from January, 2008. In other words, the institution of such proceedings on the basis of memo of charges have been issued after the retirement of the employee concerned, which is strictly prohibited by virtue of the provisions contained in Clause ‘b’ to the proviso to Rule 3 of Part III KSR read with Clause ‘a’ to the Explanation of Rule 3 of Part III KSR. That apart, Ext.P-4 explanation has been sought from the appellant as early as on 21.1.2016, before the writ appellant had retired from service on 30.4.2016. That apart, Ext.P-4 explanation has been sought from the appellant as early as on 21.1.2016, before the writ appellant had retired from service on 30.4.2016. Nothing prevented the respondents from issuing memo of charge even when the appellant had retired from service. Hence, in the light of these aspects now the entire proceedings have been stopped as per Ext.P-12 issued on 21.5.2019, in other words, the entire proceedings after the retirement of the appellant have been initiated without jurisdiction and in flagrant violation of the principles of the rules. That apart, a reading of Exts.P-11 & P-12 would show that there is not even a reference to the provisions contained in Rule 3 of Part III KSR. It is not known whether the memo of charges dated 19.6.2017 referred to as paper No.2 in Ext.P-11 has been issued purportedly in exercise of the powers under Rule 3 of Part III KSR. 10. Sri.M.K.Thankappan, learned Standing Counsel for the Kerala State Electricity Board (KSEB) appearing for the respondents would fervently urge that the allegations raised against the appellant are serious and that this Court may not award any interest on the delayed payment of the retirement benefits to the appellant, etc 11. The allegations raised in this case could be serious, but nothing prevented the respondent KSEB authorities from diligently proceeding with the matter immediately after the same has been detected as early as on 23.1.2012 or atleast after the explanation received from the appellant on 22.2.2016 in pursuance of Ext.P-4 memo issued on 21.1.2016, which is all before the retirement of the appellant on 30.4.2016. At any rate, we are of the firm view that proceedings should have been finalized against the appellant strictly in accordance with law atleast within a period of one year from the date of retirement of the appellant. All the time in the world was certainly available to the respondents inasmuch as, the surprise APTS inspection has been conducted on 23.1.2012, which is more than 4 years prior to the retirement of the appellant on 30.4.2016. 12. In the light of the view we have taken that the proceedings actually now commenced against the petitioner based on memo of charges issued on 19.6.2017 which is in flagrant violation of the procedure mandated in Rule 3 of Part III KSR, the appellant could have claimed interest immediately after the date of retirement. 12. In the light of the view we have taken that the proceedings actually now commenced against the petitioner based on memo of charges issued on 19.6.2017 which is in flagrant violation of the procedure mandated in Rule 3 of Part III KSR, the appellant could have claimed interest immediately after the date of retirement. However, we are not amenable to said request of the appellant. Though the appellant could also seek interest at the rate of 9%, we are not persuaded to grant interest in the facts and circumstances of this case at the rate of 9%, and we are inclined only to order that interest shall be paid to the appellant at the rate of 6% per annum, for the period from 1.5.2017 onwards (after the expiry of one year from the date of retirement of the appellant on 30.4.2016) on the delayed payment of retirement benefits, upto the date of actual release of retirement benefits to the appellant. Interest as above shall be paid by the respondents to the appellant for the period from 1.5.2017 upto the date of actual payment of the pensionary benefits concerned within a period of 3 months from the date of receipt of a certified copy of this judgment. If the said interest amount at the rate of 6% is not paid to the appellant within an outer time limit of 3 months from the date of certified copy of this judgment, then the said interest amount will stand enhanced at the rate of 8% per annum from 1.5.2017 onwards upto the date of actual payment of the pensionary benefits. 13. These crucial aspects of the matter have not been adverted to in the impugned judgment and hence the same would deserve interdiction. In view of the abovesaid reasons, the impugned judgment dated 28.1.2021 of the learned Single Judge in W.P.(C).No.33134/2017 will stand set aside. With these observations and directions, the above Writ Appeal will stand finally disposed of.