The Kerala High Court stated that the principle of ‘Factum Valet’ cannot be used to penalize an employee if the order was given in good faith for the benefit of the institution.
The Kerala High Court dismissed the disciplinary actions taken against a Sub Engineer from the Kerala State Electricity Board Limited, based on the principle of “Factum Valet.” The court recognized that the Sub Engineer issued a provisional assessment order in good faith, which ultimately benefited the organization. The Sub Engineer contested the disciplinary measures imposed by the relevant authority at KSEBL. Justice K. Babu, in a Single-Judge Bench, stated that the provisional assessment order was issued with the institution’s best interests in mind, and thus, the “Factum Valet” principle should not be used to penalize the Sub Engineer.
Advocate Jose J. Matheikel represented the Sub Engineer, while Advocate K.S. Anil represented the opposing side. The Sub Engineer had received a Charge Transfer Certificate (CTC) for 13 days from the Assistant Engineer at the Section office. However, upon returning to duty, he was suspended immediately. The Anti Power Theft Squad inspected a consumer’s premises in the Aranmula Section, and the Sub Engineer was part of the team preparing the report. No CTC or authorization was provided by the Assistant Engineer or any higher officials to transfer the Assistant Engineer’s responsibilities to the Sub Engineer. According to Section 126 of the Electricity Act, 2003, the Assistant Engineer is the designated assessing officer, and only they have the authority to issue a provisional assessment order.
The Chief Engineer (HRM) sent a memo of charges and allegations to the petitioner on April 26, 2017, mainly claiming that he delayed issuing the provisional assessment order under Section 126. The petitioner argued that he did not have the authority of the Assistant Engineer and was therefore not qualified to issue such an order. Following this, disciplinary actions were taken against him. During the appeal, the Chairman used the principle of “Factum Valet” to determine that since the petitioner acted as the Assistant Engineer by issuing the provisional assessment order, he was considered to be the Assistant Engineer for that section. The Chairman then reduced the punishment from barring one increment for a year to a “Censure on Record” and ordered the recovery of Rs 73,606. Upset by this decision, the petitioner went to the High Court.
Initially, the Bench clarified that according to Section 126 of the Electricity Act, 2003, if an inspection reveals unauthorized use of electricity, the assessing officer must provisionally determine the electricity charges based on their judgment. The appellate authority applied the “Factum Valet” principle to hold the petitioner accountable. The only action the petitioner took during that time was preparing and issuing the provisional assessment order under Section 126. The Bench noted that higher authorities did not assign the Assistant Engineer’s responsibilities to anyone during that period.
The Bench explained that the phrase “Quod fieri non debet factum valet” is a Latin saying meaning “what should not be done is valid when done.” This principle states that the wrongness of an act does not change its legal status (factum valet). If the authority of the person performing the act is crucial for the transaction’s validity, then the legal status of the act falls outside the scope of the ‘factum valet’ doctrine. The Bench noted that the petitioner’s authority to issue the provisional assessment order is not crucial for the validity of the proceedings. Thus, the legal status of the provisional assessment order is safeguarded by the “Factum Valet” doctrine. However, this principle does not imply that the petitioner, who lacked the authority to issue the order but did so for the institution’s benefit, is accountable for the delay. The Bench clarified that the delay was due to the lack of authorization for the act, leading to the quashing of the proceedings against the Petitioner and clearing him of the charges. It also stated that the KSEB must not deny any service benefits to the petitioner due to the initiated proceedings.
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
