IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 OP.No. 30367 of 2002(M) ----------------------- PETITIONER(S): --------------- P.ROBINSON BABU, AGED 54 YEARS, ASSISTANT EXECUTIVE ENGINER (TECHNICAL) DISTRICT PANCHAYATH DIVISION, THIRUVANANTHAPURAM BY ADV. SRI.SERGI JOSEPH THOMAS RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 1.4.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 30367/02. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE INSPECTION REPORT. P2. COPY OF THE EXPLANATION DTD.7.7.1990. P3. COPY OF THE REPORT OF THE CHIEF ENGINEER DTD.24.8.90. P4. COPY OF THE MEMO OF CHARGES. P5. COPY OF THE STATEMENT OF DEFENCE. P6. COPY OF THE REPORT OF SANTHOSH MITRA, THE THEN A.E.E. P7. COPY OF THE GOVT. ORDER DTD.24.7.95. P8. COPY OF THE REVIEW PETITION TO THE RESPONDENT DTD.24.7.95. P9. COPY OF THE GOVT. ORDER DTD.16.7.01. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 30367 of 2002 ================== Dated this the 1st day of April, 2009 J U D G M E N T The petitioner was an Executive Engineer in the District Panchayat Division of the Public Works Department of the Government of Kerala. While working as Assistant Engineer at the work site of the Kerala Legislature Complex, disciplinary proceedings were initiated on the basis of an inspection conducted on the spot, which revealed shortage of stock of cement. The petitioner was issued a charge memo, to the which the petitioner submitted explanation. Three other persons were also similarly proceeded against in respect of the same incident. Ultimately, by Ext.P7 order, the Government found the petitioner guilty of the misconduct alleged against him. Pursuant thereto, punishment of barring of two increments with cumulative effect was imposed on the petitioner. The petitioner filed a revision petition which was rejected by Ext.P9 order. The petitioner is challenging Exts.P7 and P9 in this original petition. 2. The counsel for the petitioner is absent. I have heard the learned Government Pleader. 3. In Ext.P7, the charges against the petitioner have been examined by the Government thus: “8. The argument of Sri.P.Rohinson Babu, Assistant Engineer are examined as follows: (I) No charge has been framed against the Assistant Engineer that he avoided his presence on 26.2.90. But there is an observation in 2 the Inspection Report that the Assistant Engineer avoided his presence on 26.2.90 and the 200 bags of cement shown to the Finance Inspection Wing on the next day ie. on 27.2.90 might have been placed after the inspection of the site on 26.2.90. There is every reason to believe that the Assistant Engineer being the officer responsible for the stock of materials avoided his presence since there was shortage of cement at site based on the physical verification made by the Finance Inspection Wing. The cement found short on 26.2.90 might have been replaced on the next day i.e. on 27.2.90. The argument that his casual leave was sanctioned by the Assistant Executive Engineer on 24.2.90 also cannot be taken for granted since the Assistant Executive Engineer himself is also responsible for the irregularity. (2). The Assistant Executive Engineer has also made this argument that the Assistant Engineer could not inform the Assistant Executive Engineer of the arrival of cement on 22.2.90. No sufficient or convincing reason has been put forward either by the Assistant Executive Engineer or by the Assistant Engineer as to why the Assistant Engineer could not meet the Asst. Executive Engineer on 24.2.90 and why the Assistant Engineer failed to inform the Asst. Ex. Engineer of the arrival of the 1 lorry load of cement on 22.2.90. The 200 bags of cement were not available at site at the time of inspection on 26.2.90. Hence this argument is not sustainable. (3). It is argued that there were two Overseers attached to his Section available and the Inspection party did not ascertain the position from those two Overseers, even though they were available in the Section office. The stock position of cement was arrived at after verification of site where cement was stocked in the presence of the Assistant Executive Engineer in charge of the work. Therefore, there was no necessity to verify further with other officers. Moreover if the Assistant Executive Engineer had any doubt regarding the stock position of cement he could have verified the matter with the two Overseers. But the same was not done which clearly indicate that the Assistant Executive Engineer was well aware that there was no cement stock other than the one showed to the Finance Inspection Wing. (4). This argument has no basis at all. The statement of the agent of the contractor was obtained by the Finance Inspection Wing in the presence of the Assistant Executive Engineer. No casual labourer or daily worker will come forward and give an oral statement before the officers of the Finance Inspection Wing and that too especially in the presence of the Assistant Executive Engineer who is in charge of the work. He stated that no cement was stocked anywhere in the work site except the stock already verified by the Finance Inspection Wing. It is also significant to note that the Assistant Executive Engineer in his written statement of defence has not made such an argument that it was not an agent of the contractor. The agent had stated in the presence of the Assistant Executive Engineer that there was no other stock of cement in the site. (5). The Finance Inspection Wing made a surprise check based 3 on a telephone call in the evening hours of 24.2.90 that one lorry load of cement has been shifted out from the Legislature Complex premises. The inspection was conducted on 26.2.90. It was revealed on physical verification that 200 bags of cement were missing. The Finance Inspection Wing was shown 200 bags of cement in a shed on the next day i.e. on 27.2.90. The stock of 200 bags of cement was not available at site on 26.2.90. The cement could have been replaced in the shed after the inspection party left on 26.2.90. This was the cement shown to the Finance Inspection Wing on 27.2.90. (6). The contentions that the shortage of 20 bags of cements is compensated as marginal shortage on account of loose packing and for partly clodded bags and that the amount has been recovered from the contractor are not sustainable. Had there been no inspection this shortage would have gone un-noticed causing lose to Government. (7). Since the charge No.I is found sustainable charge No.2 and 3 are also sustainable. (8). On verification of the M.A.S. Register and Day Book it could be seen that there were some over-writings and corrections. This charge is of general nature pertaining to the registers checked by the Finance Inspection Wing.” The above discloses application of mind by the Government to every aspect of the case. The explanation of the petitioner has been specifically examined and cogent reasons have been mentioned as to why his explanation could not be accepted. That cannot be termed as perverse by any standards. In the matter of disciplinary proceedings this Court can interfere with the findings on facts, only if the findings are perverse. In so far as I am unable to find any perversity whatsoever in the findings in Ext.P7, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner by interfering with Exts.P7 and P9. Accordingly, this original petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 30367 of 2002-M ================== J U D G M E N T 1st April, 2009