IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 WP(C).No. 23817 of 2003(I) -------------------------- PETITIONER(S): --------------- T.SELVARAJ, G-3, RENGAPRIYA RESIDENCY, 43/45, K.V.LAYOUT, 2ND STREET, JAY NAGAR, 4TH BLOCK, BALGALORE-560011, NOW WORKING AS BADGE NO.6332, DISMISSED FROM SERVICE AS ASSISTANT SALES MANAGER, MPS OFFICE, FACT MARKETING DIVISION, UDYOGAMANDAL-683 501. BY ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.KAYALATT KUTTYKRISHNAN RESPONDENT(S): --------------- 1. THE FERTILISERS AND CHEMICALS TRAVANCORE LTD., REP. BY THE CHAIRMAN AND MANAGING DIRECTOR, FACT CORPORATE OFFICE, P.O.UDYOGAMANDAL 683 501. 2. THE GENERAL MANAGER (MARKETING) THE FERTILIZERS AND TRAVANCORE LTD., UDYOGAMANDAL P.O. ADV. SRI.E.K.NANDAKUMAR SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SMT.PRIYA MAHESH SMT.PRIYA MANJOORAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No. 23817 of 2003 ================== Dated this the 12th day of April, 2011 J U D G M E N T The petitioner, an Assistant Sales Manager of the 1st respondent, was dismissed from service, by Ext.P15 order, on having been found guilty of certain allegations of misconducts levelled against him. His appeal against the order of punishment was also rejected. The petitioner challenges the disciplinary proceedings on three grounds. The first is that the enquiry has been conducted in violation of the principles of natural justice insofar as, as is revealed from Ext.P6, the petitioner had specifically requested the enquiry officer to summon certain documents from the management, which would have proved the innocence of the petitioner, which was not brought on record by the management. The second is that the findings in the enquiry report are perverse. The third is that the punishment of dismissal from service imposed on the petitioner is shockingly disproportionate, insofar as in respect of the same set of facts, the petitioner's superior and his subordinate officers were also proceeded against and they were imposed with only the punishments of warning and barring of one increment without cumulative effect respectively. 2. The respondents have filed a counter affidavit seeking to controvert the contentions of the petitioner. 3. The petitioner was proceeded against in the following w.p.c.23817/03 2 circumstances: The Depot Manager concerned released stock to a dealer without first ascertaining whether the previous cheques issued by the dealer had been honoured. The allegation is that it was the responsibility of the petitioner as the Area Sales Officer to ensure that, before the Depot Manager released further stock to a dealer, earlier cheques issued by the dealer had been duly honoured, which the petitioner had not done. Along with the same, several other charges were also levelled against the petitioner. But the only charge found against the petitioner in Ext.P9 enquiry report is that, in violation of the standing instructions of the company, the petitioner authorised release of stock without first ensuring that the earlier cheques issued by the dealer in question had been honoured. 4. On this question, the duties and responsibilities of the Depot Officer, the petitioner and the Area Manager, are very relevant. If it was the responsibility of the Depot Officer to see that the earlier cheques issued by the dealer are honoured, before releasing further stock, then the primary responsibility in respect of the same would be on the Depot Officer and at best, the petitioner's fault would be only in the matter of supervisory lapse. If the responsibility of the Area Manager also was to ensure that previous cheques are not dishonoured before release of further stock, then some of the guilt w.p.c.23817/03 3 would rub on him also. Therefore, the responsibilities of all these persons are very relevant for the purpose of deciding the guilt of the petitioner. In Ext.P6 request dated 11.2.2002, the petitioner had requested for several documents, the first of which was the duties and responsibilities of the (1) Depot Officer who is in charge of ASC (2) Sales Officer (3) SRO and (4) Area Manager. The petitioner has categorically alleged that that request was not considered by the enquiry officer at all. The respondents could not satisfy me that the petitioner had not submitted Ext.P6 or that those documents were actually made available in the enquiry. In fact although the petitioner had specifically taken this ground in the writ petition, in the counter affidavit, the respondents have not chosen to deal with the same. As such, I am inclined the accept the contention of the petitioner that the documents requested for in Ext.P6 have not been furnished in the enquiry. That amounts to violation of principles of natural justice. As such, the enquiry itself is vitiated for violation of principles of natural justice. 5. On the question of guilt of the petitioner also, I am not satisfied that the same has been sufficiently proved in the enquiry. Ext.P13 is a circular issued by the Senior Regional Manager of the 1st respondent to all Depot Officers, which reads thus: “We have come across an instance where stock were supplied to our dealers by accepting local cheques based on Delivery Orders issued w.p.c.23817/03 4 by our ASMs/SSD/SOs without verifying the realisation of the local cheques issued by the dealers. Though there is very clear cut instructions issued by HO and by us that more than a lakh of Rupees should not be accepted through local cheque/cheques on a particular day, some of the ASCs are issuing stocks to our dealers by accepting local cheque/cheques based on the Delivery orders issued by ASMs/SSOs/SOs. This is highly irregular. As a custodian of stocks in the ASCs, it is your responsibility to see that immediately after getting the local cheque/cheques, you should get it confirmed with the concerned bank, whether the local cheque issued by the dealer will be passed for payment and it will be credited to our Bank account and after verifying the bank pass book with the dealers whether it has been debited to the party's account and then only you have to issue stock. Suppose, you come to know that, when one particular local cheque is held up without passing for payment and without credited to our Bank for want of sufficient funds, you should not effect further supply of our products even though there is Delivery Orders issued by our ASMs/SSOs/SOs against Local Cheque/Cheques. If any deviation from the above procedure is noticed, it will be dealt with severely which please note.” Of course, the learned counsel for the respondents would point out that this was issued after the incident, which led to the disciplinary action against the petitioner. But it gives an indication as to the duties and functions of the Depot Officer and going by the same, it is the primary responsibility of the Depot Officer to ensure that the previous cheques issued by the dealer have been honoured, before delivering further stock to that dealer. The enquiry officer found the petitioner guilty of authorising issue of stock against cheques without verifying whether the earlier cheques issued by the dealer were honoured. In the light of the above evidence, all what the petitioner could be found guilty of is supervisory lapses. 6. I am also of opinion that the penalty imposed on the petitioner is shockingly disproportionate, especially in view of the w.p.c.23817/03 5 minor punishments imposed on the Depot Officer and the Senior Regional Manager. Exts.P17 and P18 are the punishment orders issued to the Senior Regional Manager and the Depot Officer in respect of the same set of facts. The Senior Regional Manager was imposed with the punishment of warning for not ensuring that the previous cheques were honoured before releasing of further stock. In Ext.P18, the Depot Officer, who is the person, who actually released the stock to the dealer without verifying whether the earlier cheques of the dealer have been honoured, has been awarded the punishment of withholding of his annual increment due on 1.9.2002 without cumulative effect. From the same, it is more than evident that the punishment of dismissal imposed on the petitioner is not only shockingly disproportionate to the gravity of the misconduct, but also discriminatory, even assuming that the misconduct has been proved. Therefore, on all counts, the disciplinary proceedings against the petitioner are liable to be quashed. I do so. The petitioner would therefore be entitled to be reinstated in service with back wages. If the petitioner has attained the age of superannuation, it would be deemed that the petitioner continued in service till his age of superannuation without any disciplinary proceedings and the petitioner would be entitled to all service benefits including monetary benefits accordingly. The petitioner would also be entitled to all retirement benefits. Orders in this regard shall be issued w.p.c.23817/03 6 and the monetary benefits disbursed, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.23817/03 7 W.P.(C).No. 23817/2003 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE SUSPENSION ORDER DTD.4.10.99. P2. COPY OF THE ORDER DTD.21.12.99 BY R1. P3. COPY OF THE EXPLANATION DTD.29.1.2000 TO R1. P4. COPY OF THE ORDER DTD.27.2.2001 BY R1. P5. COPY OF THE EXPLANATION DTD.24.4.01. P6. COPY OF THE LETTER DTD.11.2.02 TO THE ENQUIRY OFFICER BY THE PETITIONER. P7. COPY OF THE LETTER DTD.14.3.02, TO THE ENQUIRY OFFICER. P8. COPY OF THE WRITTEN STATEMENT DTD.27.6.02 OF K.P.MURALEEDHARAN. P9. COPY OF THE ENQUIRY REPORT. P10. COPY OF THE STATEMENT DTD.7.8.02 TO R1. P11. COPY OF THE LETTER DTD.3.11.99 BY THE MANAGER S.B.T., THANJAVUR. P12. COPY OF THE MEMO DTD.11.9.99. P13. COPY OF THE DOCUMENT DTD.23.9.99. P14. COPY OF THE FACT EMPLOYEES' CONDUCT RULES. P15. COPY OF THE ORDER DTD.30.1.03 BY R2 TO THE PETITIONER. P16. COPY OF THE APPEAL DTD.19.2.03 TO R1. P17. COPY OF THE ORDER DTD.29.1.03 BY R2. P18. COPY OF THE ORDER DTD.29.1.03 BY R2. P19. COPY OF THE ORDER DTD.2.7.03 BY R1. RESPONDENT(S)' EXHIBITS: R2A. COPY OF THE MEMORANDUM OF CHARGES DTD.21.21.99. sdk+ ///True copy/// P.A. to Judge w.p.c.23817/03 8