IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 WP(C).No. 22286 of 2008(C) ---------------------------------------- PETITIONER(S): ------------------------ 1. N.RATHEESH KUMAR, PEON, OFFICE OF THE SUB REGISTRAR SASTHAMANGALAM, THIRUVANANTHAPURAM DISTRICT. 2. K.ANIL KUMAR, PEON, OFFICE OF THE SUB REGISTRAR, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 3. R.MANIKUTTAN, PEON, OFFICE OF THE SUB REGISTRAR, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM DISTRICT. 4. K.RAJEEVAN, HEAD CLERK, OFFICE OF THE SUB REGISTRAR,POTHENCODE, THIRUVANANTHAPURAM DISTRICT. 5. J.JOHN DAVISON, SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR,OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM DISTRICT. 6. T.RAJENDRAN NAIR, SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR, CHALA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SMT.MARY BENJEMIN RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT,TAXES(REGISTRATION)DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. INSPECTOR GENERAL OF REGISTRATION, OFFICE OF THE INSPECTOR GENERAL OF REGISTRATION, VANCHIYOOR, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR.K.SANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2009 ALONG WITH WPC NO. 36270 OF 2008 AND WPC NO. 23947 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22286/2008 C APPENDIX PETITIONER'S EXHIBITS: P1(A): COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD. 6/05/2003 ISSUED TO THE 1ST PETITIONER. P1(B): COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD. 6/05/2003 ISSUED TO THE 2ND PETITIONER. P1(C): COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD.6/05/2003 ISSUED TO THE 3RD PETITIONER. P1(D): COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD. 6/05/2003 ISSUED TO THE 4TH PETITIONER. P1(E): COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD. 6/05/2003 ISSUED TO THE 5TH PETITIONER. P1(F): COPY OF THE MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS DTD. 6/05/2003 ISSUED THE 6TH PETITIONER. P2(A): COPY OF REPLY SUBMITTED BY THE 1ST PETITIONER. P2(B): COPY OF REPLY SUBMITTED BY THE 2ND PETITIONER. P2(C): COPY OF REPLY SUBMITTED BY THE 3RD PETITIONER. P2(D): COPY OF REPLY SUBMITTED BY THE 4TH PETITIONER. P2(E): COPY OF REPLY SUBMITTED BY THE 5TH PETITIONER. P2(F): COPY OF REPLY SUBMITTED BY THE 6TH PETITIONER. P3(A): COPY OF THE ORDER DTD. 10/10/2007 OF THE 1ST RESPONDENT ISSUED TO THE 1ST PETITIONER. P3(B): COPY OF THE ORDER DTD. 10/10/2007 OF THE 1ST RESPONDENT ISSUED TO THE 2ND PETITIONER. P3(C): COPY OF THE ORDER DTD. 10/10/2007 OF THE 1ST RESPONDENT ISSUED TO THE 3RD PETITIONER. P3(D): COPY OF THE ORDER DTD. 10/10/2007 OF THE 1ST RESPONDENT ISSUED TO THE 4TH PETITIONER. Kss ..2/- ...2..... WPC.NO.22286/2008 C P3(E): COPY OF THE ORDER DTD. 10/10/2007 OF THE 1ST RESPONDENT ISSUED TO THE 5TH PETITIONER. P3(F): COPY OF THE ORDER DTD. 10/10/2007 OF THE 1ST RESPONDENT ISSUED TO THE 6TH PETITIONER. P4(A): COPY OF THE REVIEW PETITION FILED BY THE 1ST PETITIONER. P4(B): COPY OF THE REVIEW PETITION FILED BY THE 2ND PETITIONER. P4(C): COPY OF THE REVIEW PETITION FILED BY THE 3RD PETITIONER. P4(D): COPY OF THE REVIEW PETITION FILED BY THE 4TH PETITIONER. P4(E): COPY OF THE REVIEW PETITION FILED BY THE 5TH PETITIONER. P4(F): COPY OF THE REVIEW PETITION FILED BY THE 6TH PETITIONER. P5(A): COPY OF THE ORDER DTD. 2/05/08 OF THE 1ST RESPONDENT ISSUED TO THE 1ST PETITIONER. P5(B): COPY OF THE ORDER DTD.2/05/08 OF THE 1ST RESPONDENT ISSUED TO THE 2ND PETITIONER. P5(C): COPY OF THE ORDER DTD. 2/05/08 OF THE 1ST RESPONDENT ISSUED TO THE 3RD PETITIONER. P5(D): COPY OF THE ORDER DTD.2/05/08 OF THE 1ST RESPONDENT ISSUED TO THE 4TH PETITIONER. P5(E): COPY OF THE ORDER DTD. 2/05/08 OF THE 1ST RESPONDENT ISSUED TO THE 6TH PETITIONER. P6: COPY OF THE JUDGMENT DTD. 13/01/05 IN REVIEW PETITION NO.816 OF 04. P7: COPY OF THE ORDER DTD. 19/10/2005 OF THE 1ST RESPONDENT. P8: COPY OF THE ORDER DTD. 31/10/06 OF THE 1ST RESPONDENT. P9: COPY OF THE ORDER DTD. 9/04/2007 OF THE 1ST RESPONDENT. P10: COPY OF THE ORDER DTD. 1/08/2006 OF THE 1ST RESPONDENT. P11: COPY OF THE ORDER DTD. 30/09/2005 OF THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.22286, 36270 of 2008 & 23947 of 2009 --------------------------------- Dated, this the 7th day of October, 2009 J U D G M E N T In so far as WP(C) No.22286/2008 is concerned, petitioners 1 to 3 are Peons, 4th petitioner is a Head Clerk and 5th & 6th petitioners are Sub Registrars, who were all working in the respective Offices mentioned in the cause title. 2. On 21/11/2002, the Officers of the Vigilance and Anti Corruption Bureau conducted a joint surprise check in various Sub Registrar Offices in the State. Subsequently, the petitioners were issued Ext.P1 series of memo of charges, containing the allegation that they did not enter cash/property in the Register maintained for that purpose. Replies were filed, where they confessed that it was an inadvertent omission on their part not to have entered the cash / property in the Register. The replies were considered and the 1st respondent issued Ext.P3 series of orders dated 10/10/2007, imposing minor penalty of barring of two increments for two years without cumulative effect as provided under Rule 11(1) of the KCS WP(C) Nos.22286, 36270 of 2008 & 23947 of 2009 -2- (CC&A) Rules, 1960. The petitioners filed review petitions before the Government, which were also rejected by Ext.P5 series of final orders dated 22/05/2008. It is in these circumstances, this writ petition is filed challenging Exts.P3 & P5 series of orders. 3. In so far as WP(C) No.36270/2008 is concerned, the petitioner herein was a LD Clerk in the Sub Registrar Office, Thrissur, when on 21/11/2002, joint inspection was conducted by the Vigilance and Anti Corruption Bureau. On 06/05/2003, she was issued Ext.P1 memo of charges alleging that she had an unaccounted amount of Rs.58.50 in her possession, and that the cash/property she had was not entered in the register. It was also alleged that the Register was not properly maintained. She submitted Ext.P2 explanation stating that Rs.58.50 found in her bag, was coins she kept after paying bus fare and making purchases for over a period of time. It was stated that she had entered Rs.400/- she had, in the Register. Rest of the allegations were also denied. Without any further notice or other proceedings, as in the previous case, she was issued Ext.P3 order dated 10/10/2007 by WP(C) Nos.22286, 36270 of 2008 & 23947 of 2009 -3- the 1st respondent imposing a minor penalty of barring of two annual increments for two years without cumulative effect under Rule 11(1) of the KCS (CC & A) Rules. She filed Ext.P4 review petition, which was ordered to be considered as per Ext.P5 judgment dated 16/09/2008 of this Court. Finally, by Ext.P6 order passed by the 1st respondent, the review was rejected. 4. In so far as WP(C) No.23947/2009 is concerned, the petitioner herein was working as a Peon in the Sub Registrar Office, Ernakulam, when the Vigilance and Anti Corruption Bureau inspected the Office on 21/11/2002. Here also, pursuant to the inspection by the Vigilance and Anti Corruption Bureau, the petitioner was issued a memo of charges, and the main allegation was that he did not enter the cash/property in his possession in the Register maintained for that purpose, and that the Register was not properly maintained. Rejecting his explanation, he was also imposed a minor penalty of barring of two annual increments for two years without cumulative effect under Rule 11(1) of KCS(CC&A) Rules, 1960 as per Ext.P2 order of the 1st respondent. He filed WP(C) Nos.22286, 36270 of 2008 & 23947 of 2009 -4- Ext.P3 review petition, which was rejected by Ext.P5 order dated 26/11/2008. It is thereupon that this writ petition is filed. 5. In so far as WP(C) No.22286/2008 is concerned, a reading of Ext.P1 series of memo of charges show that the allegation levelled against the petitioners was that they did not declare cash/property in the Register maintained for that purpose. Although, the petitioners had, in the replies submitted, confessed that it was on account of an inadvertent omission that they failed to make entries, a bare reading of the memo of charges reveals that there was no allegation that the petitioners had any amount of cash/property to be entered in the Register or that any cash/property has recovered from them. Unless the Disciplinary authority has a case that the employees had cash/property in their possession and that they deliberately failed to enter the same in the Register, there cannot be a misconduct. In my view, for this reason itself, the memo of charges do not disclose any misconduct warranting imposition of any punishment. Even otherwise, a reading of the explanations show that the petitioners have pleaded WP(C) Nos.22286, 36270 of 2008 & 23947 of 2009 -5- that it was an inadvertent omission on their side, which led to the situation. The plea of inadvertent omission has not been considered either in Ext.P3 orders of punishment or in Ext.P5 final orders passed by the Government. Further, along with Ext.P4 review petitions filed, the petitioners have produced various orders passed by the Government which were rendered in identical circumstances, exonerating employees, who were also proceeded against for similar misconduct. No reason whatsoever is forthcoming why a different stand has been adopted in the case of the petitioners. In the statement filed, the only justification offered by the respondents is that those employees were exonerated pursuant to Court directions. In my view, this is a totally unsatisfactory explanation and if another stand has been adopted in the case of similarly situated persons, the respondents cannot adopt a discriminatory attitude in the case of the petitioners. Therefore, I see absolutely no ground to sustain Ext.P3 series of orders of punishment or Ext.P5 series of final orders passed by the Government. Therefore, these orders will stand quashed and the increments, which were barred, will be restored to WP(C) Nos.22286, 36270 of 2008 & 23947 of 2009 -6- the petitioners. 6. In so far as the petitioner in WP(C) No.36270/2008 is concerned, there also, based on the joint inspection by the Vigilance and Anti Corruption Bureau, Ext.P1 memo of charges was issued to the petitioner. The allegation made is that Rs.58.50 was not entered in the Register maintained for that purpose. Explanation of the petitioner was that without her knowledge the amount happened to remain in her bag, which according to her was the balance accumulation of the amount kept for bus fare and other expenses. Neither in the order of punishment nor in the final order has this explanation even been considered by any of the authorities. When a person pleads a bonafide mistake, there is no reason why the same should not be considered. That apart, as in the case of the petitioners in WP(C) No.22286/2008, here also, along with Ext.P4 review petition, the petitioner had produced various orders passed by the Government, exonerating similarly situated employees, and there is absolutely no valid reason forthcoming from the respondents to justify why similar treatment was not WP(C) Nos.22286, 36270 of 2008 & 23947 of 2009 -7- adopted in the case of the petitioner. Therefore, I am not satisfi d that any misconduct has been proved against the petitioner warrant ng imposition of punishment as done vide Exts.P3 & P5. Theref e, these orders will stand set aside, and it is directed that the inc ements will be restored. 7. In so far as the case of the petitioner in WP(C) No.23947/2009 is concerned, as already noticed, the allegation levelled against him was that he did not declare the cash/property in the Register maintained for that purpose. A reading of Ext.P3 review petition filed by him shows that in the morning, he had entered Rs.30/- in the Register, and that at the time when the inspection was conducted, he had only Rs.10/-, and his explanation was that Rs.20/- was spent for his lunch. Neither in Ext.P2 nor in Ext.P5, was this case considered by any of the respondents. If as stated by the petitioner, he had entered what he had in the morning, there is no reason why the said explanation was not accepted. That apart, in this case also, the petitioner relied on orders passed by the Government itself exonerating similarly situated employees, and WP(C) Nos.22286, 36270 of 2008 & 23947 of 2009 -8- there is absolutely no reason why similar treatment was not provided to the petitioner. For these reasons, I have no reason to sustain Exts.P2 order of punishment & P5 final order passed by the respondents. Therefore, these orders will also stand set aside with a direction to the respondents to restore the two annual increments, which were barred, as per Ext.P2 order. In the result, these writ petitions are allowed quashing the impugned orders and directing restoration of the increments, which were barred by the impugned orders, which are set aside. (ANTONY DOMINIC, JUDGE) jg