Kerala High Court Quashes Punishment On Sub-Engineer At Kerala State Electricity Board Invoked Based On 'Factum Valet' Doctrine

For context, the doctrine of Factum Valet which means that an act that was not supposed to be done, is valid once it is done.

Justice K Babu stated that the disciplinary proceedings initiated against the Sub-Engineer by invoking the doctrine of Factum Valet, was illegal and vitiated in law. The court said this after noting that the principle cannot be invoked to hold that the petitioner sub engineer, who was not authorised to issue a provisional assessment order with respect to a consumer, but had issued it in the interest of the board, is responsible for the delay in issuing the same. 

Explaining the maxim, the Court stated that the Doctrine of Factum Valet cannot be applied when the competence or authority of the person performing an act is essential to the validity of the transaction, as the legal validity of the act falls outside the scope of the Factum Valet doctrine.

It said, “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”. Some of the celebrated authors referred to this doctrine to the relevant Sanskrit quotation “a fact cannot be altered by a hundred texts”. The principle is that the impropriety of the act does not affect the legal character of the act (fatum valet). By reason of a legal prohibition to the contrary, an act solemnised could not be undone. 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 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. The reason for the delay was admittedly the absence of authorisation to do the act. The resultant conclusion is that the disciplinary proceedings initiated against the petitioner are illegal and, therefore, vitiated," the court underscored. 

Background

The petitioner, a Sub-Engineer at Kerala State Electricity Board Limited had approached the High Court for quashing the punishment imposed upon him through disciplinary proceedings for the alleged undue delay in issuing a provisional assessment order under Section 126 of the Electricity Act to a consumer pursuant to the inspection dated August 18, 2011. 

The petitioner was given the charge transfer certificate (CTC) when the person holding the post of Assistant Engineer was on leave from 2^nd to 15^th of August 2011. Upon returning to duty, the Assistant Engineer who had come back from leave was placed on suspension from August 16.

Subsequently the petitioner was served with a memo of charges and the statement of allegations for delay in issuing provisional assessment order. Later the Chief Engineer  as per order of June 15, 2021, imposed the punishment of barring one increment without cumulative effect for one year and ordered recovery of Rs.73,606 with applicable interest from September 26, 2011 onwards on the petitioner. The petitioner challenged this punishment in an appeal before the Chairman of the KSEBL. The Chairman, after hearing the matter, rejected the appeal but 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 with applicable interest from September 26, 2011 onwards. Against this the petitioner moved the high court. 

The Petitioner relying upon Section 126 of the Electricity Act of 2003 contended that the Assistant Engineer is the assessing officer and the competent authority to issue a provisional assessment order. It was argued that the petitioner did not have the charge of Assistant Engineer since August 16, 2011 and that he could not have assumed the role after expiry of CTC to issue the provisional assessment order. He further contended that as no competent officer was present in the section, in the interest of the institution, he issued a provisional assessment order. He further stated that he was in no way responsible for the delay in the preparation of the provisional assessment order.

The petitioner contended that he was incompetent to issue provisional assessment order and that no legal action could be taken against him. It was further stated that he issued the provisional assessment order in good faith since there since there was no competent authority. It was argued that he showed no dereliction of duty and that was not responsible for the delay in issuance of the provisional assessment order.

Findings

The Court noted that the only allegation proved against the petitioner was that he issued provisional assessment order on September 26, 2011 when it should have been issued on or before September 17, 2011.

The Court found that the disciplinary authority invoked the maxim doctrine of 'Factum Valet', on the ground that since the petitioner had assumed the role of the assessing officer to issue the assessment order, he was expected to do so without delay.

The Court noted that after expiry of CTC and on suspension of the Assistant Engineer, the authorities remained silent and did not give the charge of Assistant Engineer to the petitioner. The Court observed that the petitioner issued the provisional assessment order in good faith, for the benefit of KSEBL. The Court thus concluded that the petitioner cannot be punished by invoking the 'Factum Valet' maxim.

It said, "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. There is nothing to show that he assumed charge of the Assistant Engineer after the suspension of Sri.K.P.Mohanan. 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. On 16.8.2011, the petitioner ceased to be in charge of the Assistant Engineer. 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". 

In the facts of the case, the Court stated that it was not essential to assess the authority of the petitioner to issue the provisional assessment order. The Court clarified that the maxim cannot be invoked to impose punishment upon the petitioner when the delay was caused due to the delay of the authorities in giving charge to the petitioner.

Allowing the petition, the Court quashed the punishment and exonerated him from all charges.

Counsel for Petitioner: Advocate Jose J Matheikal

Counsel for Respondents: Standing Counsels K S Anil, B Pramod

Case Number: WP(C) NO. 27752 OF 2021

Case Title: Georgekutty C X v Chairman and Managing Director, KSEB

Citation: 2024 LiveLaw (Ker) 752