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2023 DIGILAW 1011 (KER)

Ratheesh S. , S/o. Sashidharan v. Kerala State Electricity Board Ltd.

2023-12-07

RAJA VIJAYARAGHAVAN V.

body2023
JUDGMENT : The petitioners are permanent employees of KSEB Ltd., working in the Electrical Section, Neyyattinkara. They have approached this Court seeking to quash Exts P5 & P6 suspension orders and for consequential reliefs. 2. Short facts are as under: On 7.08.2023, the petitioners and Dilip Kumar R G accompanied Overseer Suresh Kumar to repair electrical posts NP 63/24 and NP 63/25. They allege that the Overseer instructed them to work without switching off the power. Apprehending that they would sustain injury, they refused to climb the post. The refusal to climb the post was taken as insubordination and based on the same Exts.P1 and P2 charge memos were served on the delinquents on 5.09.2023. In response, the petitioners submitted written replies, as is evident from Exts.P3 and P4, explaining their objections and detailing their version of the events that took place on 7.8.2023. They reiterated that their refusal to climb the post was due to concerns of their own safety. 3. The petitioners assert that Exts.P3 and P4 replies submitted by the petitioners are in tune with Kerala State Electricity Employee’s (Classification, Control & Appeal) Regulations, 1969. 4. The respondents noted the contentions raised by the petitioners and proceeded to suspend them from service by issuing Exts.P5 and P6 orders. In the suspension order, it has been stated that the assertions made by the petitioners in their reply are factually incorrect and have caused fear and panic among the employees and thus would affect the smooth functioning of the Board. 5. The petitioners contend that the action on the part of the respondents to suspend the petitioners on the basis of their defense in the disciplinary proceedings are against all tenets of law. It is on these assertions that this writ petition is filed seeking the following reliefs : (i) Call for the records leading to Exts P5 & P6 and set aside the same by issuing a writ of certiorari or other appropriate writ order or direction. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to permit the petitioners to rejoin in duty, forthwith. (ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondent to permit the petitioners to rejoin in duty, forthwith. (iii) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondents to treat the period of suspension of the petitioners, w.e.f 16.09.2023 till the date of re-joining in duty, as duty and disburse all consequential benefits within a timeframe fixed by this Hon’ble Court. 6. A counter affidavit has been filed by the 3rd respondent. After reiterating the sequence of events, it is stated that on 7.8.2023, the petitioners herein had disobeyed the directions issued by the Overseer and refused to climb the electric post by stating that the line had not been switched off. It is stated that the very same incident was repeated thereafter as well. Due to the aforesaid reason, the Overseer has to wind up the work without executing the same. The overseer furnished Ext.R3(a) statement before the authorities. It is submitted that the allegations in the reply that the Overseer had tried to endanger the lives of the workmen were raised only at the time of submission of the reply on 10.9.2023 to the Memo of Charges issued to them for the act of insubordination which was committed on 7.8.2023 and no such assertion was made before any competent authority at any point of time earlier. It is stated that by raising allegations in the reply against supervising staff and trying to spread fear among the workmen regarding their safety, the respondents felt that an order of suspension was required to be issued. 7. Sri. M H Asif Ali, the learned counsel appearing for the petitioners, points out that Memo of Charges were issued to the petitioners on 5.9.2023, and replies were submitted on 10.9.2023. It was after receipt of the reply that the respondents proceeded to issue the order of suspension on the premise that the petitioners, while defending the disciplinary proceedings, had stated certain facts with respect to the safety of other employees, which caused fear and panic among the workers. According to the learned counsel, the petitioners were merely exercising their right to reply to the Charges leveled against them, and the reply submitted by them could not have been taken as a reason to suspend the petitioners. 8. According to the learned counsel, the petitioners were merely exercising their right to reply to the Charges leveled against them, and the reply submitted by them could not have been taken as a reason to suspend the petitioners. 8. In response, it is submitted by the learned counsel appearing for the respondents that by submitting a reply stating incorrect facts, the petitioners intended to spread panic among the employees. 9. I have considered the submissions advanced. 10. Regulation 10 of the Kerala State Electricity Board (Classification, Control and Appeal) Regulations, 1969 deals with suspension. The provision reads as under : 10. Suspension.- (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the Board in that behalf may, at any time place a Board employee under suspension. (a) Where a disciplinary proceedings against him is contemplated or is pending; or (b) Where a case against him in respect of any criminal offence is under investigation or trial; or (c) Where final orders are pending in the disciplinary proceedings, if the appropriate authority considers that in the then prevailing circumstances, it is necessary in public interest that the Board employee should be suspended from service. (2) Where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. (3) A Board employee who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detention, by an order of the appointing authority and shall remain under suspension until further orders. (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Board employee under suspension is set aside in appeal or on review under these regulations and the case is remitted for further enquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal, or compulsory retirement and shall remain in force until further orders. (5) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Board employee is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Board employee shall be deemed to have peen placed under suspension by the appointing authority from the date of the original order of dismissal, removal of compulsory retirement as the case may be and shall continue to remain under suspension until further orders. (6) An order of suspension made or deemed to have been made under this regulation may at any time be revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. (7) Whenever a Board employee is placed under suspension he shall be paid such subsistence and other allowances admissible under the rules for the time being in force regulating such matter. 11. Records disclose that a charge memo was issued to the petitioners on 5.9.2023 on the allegation that on 7.8.2023, the petitioners refused to climb the electric post despite the issuance of directions by the Overseer. In the charge, a copy of which is produced as Ext.P1, it is stated that their refusal to climb the post has resulted in the KSEB losing face among the public. They were informed that they are liable to be proceeded under the relevant provisions of the Kerala State Electricity Employee’s (Classification, Control & Appeal) Regulations, 1969. It is in response to the charge memo that the petitioners had furnished Exts P3 and P4 explanations narrating their version of the events. The petitioners have also raised a contention that if TMR test is done in the DTR meter, the fact that the line was not switched off would have been revealed. However, upon reviewing these explanations, the respondents concluded that the justifications were fabricated, leading to fear among KSEB employees and potentially disrupting operations. 12. As rightly submitted by the learned counsel appearing for the petitioners, the respondents failed to note that the petitioners have the right to defend themselves in the disciplinary proceedings that were initiated against them. However, upon reviewing these explanations, the respondents concluded that the justifications were fabricated, leading to fear among KSEB employees and potentially disrupting operations. 12. As rightly submitted by the learned counsel appearing for the petitioners, the respondents failed to note that the petitioners have the right to defend themselves in the disciplinary proceedings that were initiated against them. The response to the charge memo should not have been used as a basis for their suspension. Such an action compromises the rights of the accused employees to present their defense effectively. Moreover, it is noteworthy that the respondents chose to suspend the petitioners only after receiving their defense statement, rather than immediately following the alleged incident on August 7, 2023. 13. It has been held in a catena of decisions that having regard to the serious repercussions on livelihood, an order of suspension is not to be passed likely. In the instant case, issuance of an order of suspension for raising contentions in their defence is manifestly repugnant to the principles of natural justice and fair play in action. It is by now settled that an order of suspension can only be made after the authority comes to the conclusion that there are sufficient reasons for issuance of such an order. There has to be proper application of mind and satisfaction that suspension is called for in a given case. In that view of the matter, I am of the considered opinion that Exts.P5 and P6 orders of suspension are clearly illegal, and the same is quashed. The respondents are directed to permit the petitioners to rejoin duty forthwith. It would be open to the petitioners to approach the respondents to treat the period of suspension of the petitioners as duty and if any such request is made, the same shall be considered and appropriate orders shall be passed. It is made clear that the respondents are free to proceed with the disciplinary proceedings initiated against the petitioners in accordance with Regulations 1969 and in accordance with law. The Writ Petition is disposed of.