IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WA.No. 1707 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.33855/2005 Dated 05/06/2009 .................... APPELLANT(S)/PETITIONER: -------------- M.K.BALAKRISHNAN, S/O.KELAN, AGED 58 TEARS RETIRED CONTROLLER OF RATIONING, CIVIL SUPPLIES DEPARTMENT, RESIDING AT MUTHANATTY HOUSE, KAITHAKODAM, THODUPUZHA. BY ADV. SRI.C.K.PAVITHRAN RESPONDENT(S)/RESPONDENTS: --------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FOOD & CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. BY SR.G.P.SRI.BENNY GERVACIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------- W.A.No.1707 of 2009 ---------------------------------------- Dated 23rd March, 2010 JUDGMENT Balakrishnan Nair, J. The appellant is the writ petitioner. He retired from the services of the Civil Supplies Department as Controller of Rationing on 31.1.2006. While working as District Supply Officer, he was deputed to the Kerala Civil Supplies Corporation (Supplyco). During 1992-93, he was posted as the Regional Manager, Thiruvananthapuram. Between 14.5.1992 and 15.1.1993 he purchased various cosmetic items including shaving sets, shaving cream etc. worth Rs.7,07,868/-. During the period from 1.4.1992 to 2.9.1994, the goods worth Rs.1,79,133/- alone were sold out from the aforementioned items. Because of the delay in the sale, the Corporation suffered a loss of Rs.1,79,490/- towards interest for the principal amount invested. The Corporation proposed to hold the appellant liable for 50% of the amount. So, the Managing Director of the Supplyco issued a notice dated 1.2.1995, calling upon him to show cause why disciplinary action should not be taken against him under the provisions of the Kerala Civil Services (Classification, Control & Appeal) Rules for blocking of capital to the tune of Rs.5,28,735/- which caused a loss to the W.A.No.1707/2009 2 Corporation. The appellant submitted his explanation stating that he placed the orders based on the indents submitted by the Managers of the super markets. The Managing Director of the Supplyco considered the said explanation and decided not to proceed under the Kerala Civil Services (Classification, Control & Appeal) Rules. The appellant was let off with a severe warning. 2. Later, the Government issued a show cause notice dated 18.7.1997 calling upon him to show cause why disciplinary action should not be taken against him. The appellant submitted his explanation on 19.8.1997. The Government, not being satisfied with the explanation, decided to proceed with the disciplinary action. So, he was served with Ext.P2 memo of charges. The allegations against him were those allegations dealt with in Ext.P1. He submitted Ext.P3 written statement of defence to the memo of charges in which he highlighted that in view of Ext.P1, no further action is permissible. On merits also, he submitted that he has placed orders based on the indents from the lower level officers. The Government did not accept his explanation and decided to recover Rs.89,745/- from him, being 50% of the loss caused to the Corporation. Ext.P4 is the show cause notice issued, containing the said proposal, on 14.12.2000. The appellant again submitted a detailed representation, a copy of which is W.A.No.1707/2009 3 produced as Ext.P5. The Government, considering his objection, finally passed Ext.P6 order dated 11.7.2002, after affording him an opportunity of being heard in person, directing to recover an amount of Rs.89,745/- from him. The appellant submitted a review petition before the Government. That review petition was disposed of by Ext.P8, by reducing the amount to be recovered from him to Rs.71,796/-. 3. Challenging Exts.P2, P4, P6 and P8 the Writ Petition was filed. The learned Single Judge declined to interfere with the findings of the Government, but, reduced the amount to be recovered to Rs.50,000/-. The Government did not file any appeal against the said judgment. But, the writ petitioner has come up in appeal. According to him, in view of Ext.P1, further proceedings initiated against him were without jurisdiction. The Managing Director of the Supplyco is competent to take disciplinary action against him by virtue of Rule 19 (1) of the Kerala Civil Services (Classification, Control & Appeal) Rules. Thus, Ext.P1 order is passed by a competent officer. Therefore, the disciplinary action against him should not have been reopened and the punishment imposed. So, in relation to the very same allegations, he has been proceeded against twice and punished twice and the same is illegal, it is submitted. The respondents on the other hand pointed out W.A.No.1707/2009 4 that the Managing Director himself, after passing Ext.P1, moved the Government by a communication dated 20.5.1997, requesting to take disciplinary action against the appellant to recover the loss sustained by the Corporation. The learned Government Pleader also pointed out that in the case of other officers, against whom notices were issued along with the appellant by the Managing Director of the Supplyco, proceedings imposing penalty of recovery of a portion of the loss were passed. Only the appellant was let off. Therefore, the Managing Director rightly alerted the Government pointing out the necessity to take action against him. It is also submitted that under Ext.P1 no punishment was imposed on the appellant. Even before the stage of initiating proceedings under the Kerala Civil Services (Classification, Control & Appeal) Rules, the matter was dropped. Therefore, the pleading of double jeopardy, that is, punishment of the appellant twice based on the same misconduct has no application. The Government rightly proceeded against him and imposed the punishment, it is submitted. 4. We considered the rival submissions made at the Bar. We also perused the files made available by the learned Government Pleader. On a reading of Ext.P1 order of the Managing Director of the Corporation and the file leading to Ext.P8 order of the Government, we W.A.No.1707/2009 5 notice that the proposal to take action against the appellant was closed by Ext.P1, even without framing or serving any memo of charges against him. So, the said decision cannot be treated as a decision taken under the Kerala Civil Services (Classification, Control & Appeal) Rules. As a result, it cannot be held that the said order will bar disciplinary action against the appellant based on the same allegations covered by Ext.P1. Going by the materials on record, there were lapses from the part of the appellant which caused loss to the Corporation. Further, this point falls within the realm of disputed question of fact which we cannot deal with under Article 226 of the Constitution of India. We confine ourselves to the illegality of the action taken by the Government in the face of Ext.P1. Since we take the view that Ext.P1, not being an action under the Kerala Civil Services (Classification, Control & Appeal) Rules, does not bar further action under the said rules, as was taken in this case, we find no merit in the appeal and it is accordingly dismissed. K.BALAKRISHNAN NAIR Judge P.N.RAVINDRAN Judge TKS