Doctrine Of ‘Factum Valet’ Can’t Be Applied To Punish Employee When Order Was Issued In Good Faith Benefitting Institution: Kerala HC
The Kerala High Court quashed the disciplinary proceedings initiated on the basis of doctrine of “Factum Valet” against a Sub Engineer employed with Kerala State Electricity Board Limited after noting that the act of issuing the provisional assessment order was only done by him in good faith which benefited the institution.
The Petitioner challenged the disciplinary proceedings initiated against him by the competent authority in the Kerala State Electricity Board Limited.
The Single-Judge Bench of Justice K. Babu said, “It was only in good faith, for the interest of the institution, that the petitioner issued the provisional assessment order, which benefited the institution. The doctrine of “Factum Valet” cannot be applied to punish the petitioner.”
Advocate Jose J. Matheikel represented the Petitioner while Advocate K.S. Anil represented the Respondent.
The petitioner, a Sub Engineer, in the Kerala State Electricity Board Limited (KSEBL) received Charge Transfer Certificate (CTC) for 13 days from the Assistant Engineer in the Section office. However, when the Sub Engineer joined duty he was placed under suspension from that day onwards. The Anti Power Theft Squad inspected the premises of a Consumer under the Aranmula Section office and the petitioner accompanied the team for the preparation of Mazhar.
The Assistant Engineer or any other higher officials did not issue CTC or any other authorization transferring the charge of the Assistant Engineer to the petitioner. The Assistant Engineer of the concerned section office of the KSEB is the assessing officer under Section 126 of the Electricity Act, 2003. The authority competent to issue a provisional assessment order was the Assistant Engineer of the section office concerned.
The Chief Engineer (HRM) issued a memo of charges and statement of allegations dated 26.4.2017 to the petitioner, mainly alleging delay on his part to issue the provisional assessment order under Section 126. The petitioner contended that he never had the power of the Assistant Engineer and, therefore, was incompetent to issue a provisional assessment order. Thereafter, the disciplinary proceedings were initiated against him. In the appeal proceedings, the Chairman, applying the doctrine of “Factum Valet”, concluded that since the petitioner acted as the Assistant Engineer by issuing a provisional assessment order, he was deemed to be the Assistant Engineer of the concerned section. The Chairman reduced the punishment of barring one increment without cumulative effect for one year to that of “Censure on Record” and ordered recovery of Rs 73,606. Aggrieved thereby, the petitioner approached the High Court.
At the outset, the Bench explained that as per Section 126 of the Electricity Act, 2003, on an inspection of any place or premises or after inspection of the records maintained by any person, the assessing officer, on satisfied that such person was indulged in unauthorised use of electricity, shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
The appellate authority applied the doctrine of “Factum Valet” to shoulder the responsibility on the petitioner. The only function the petitioner performed during the relevant period was the preparation and issuance of a provisional assessment order under Section 126 of the Electricity Act. “The higher authorities remained silent during the relevant period without giving charge of the Assistant Engineer, who was the competent authority to issue proceedings under Section 126 of the Electricity Act, to any officers”, the Bench said.
It was explained by the Bench that the maxim “Quod fieri non debris factum valet or the Doctrine of Factum Valet”, is a Latin maxim, which means ‘what ought not to be done is valid, when done”. The principle is that the impropriety of the act does not affect the legal character of the act (factum valet). If the competence or the authority of the person doing the act is essential to the validity of the transaction the legal character of the act is beyond the province of the doctrine of ‘factum valet’.
The Bench further said, “The authority of the petitioner to issue the provisional assessment order seems to me not essential to the validity of the proceedings. Therefore, the legal character of the provisional assessment order is protected under the doctrine of “Factum Valet”. However, this principle cannot be extended to hold that the petitioner who was not authorised to issue the provisional assessment order but issued the same in the interest of the institution, is responsible for the delay.”
Clarifying that the reason for the delay was admittedly the absence of authorisation to do the act, the Bench quashed the proceedings against the Petitioner and exonerated the petitioner from the charge levelled against him. “The KSEB shall not deny any service benefits to the petitioner as a consequence of the proceedings initiated against him”, it added.
Cause Title: Georgekutty C. X. v. The Chairman & Managing Director Kerala State Electricity Board Limited [Neutral Citation: 2024:KER:87414]
Appearance:
Petitioner: Advocate Jose J.Matheikel
Respondent: Advocates K.S. Anil & B. Pramod