IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 30TH SEPTEMBER 2008 / 8TH ASWINA 1930 OP.No. 29162 of 1999(V) ----------------------- PETITIONER(S): --------------- V.A. PHALGUNAN, S/O. V.V. PULLAN, AGED 47 YEARS, FOREST GUARD, DIVISIONAL FOREST OFFICE, FLYING SQUAD, PALARIVATTOM, KOCHI-25. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE SECRETARY TO GOVERNMENT, FOREST & WILE D LIFE (A) DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE CHIEF CONSERVATOR OF FORESTS (PROTECTION), TRIVANDRUM. 3. THE CONSERVATOR OF FORESTS, CENTRAL CIRCLE, THRISSUR. GOVERNMENT PLEADER FOR R1 TO 3 SRI. M.R. SABU. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 30/09/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P. NO. 29162/1999. ------------------------------------------------------------------ EXT.P1 TRUE COPY OF MEMO OF CHARGES DT. 31-7-1989. EXT.P2 EXPLANATION OF PETITIONER. EXT.P3 ORDER DT. 23-10-1990 EXT.P4 ORDER DT. 7-6-1994. EXT.P5 ORDER DT. 21-8-1995. EXT.P6 ORDER DT. 30-4-1996. EXT.P7 ORDER DT. 23-9-1999. RESPONDENTS' EXHIBITS: ------------------------------------- EXT.R1(a) COPY OF ENQUIRY REPORT DT. 29-6-1992, EXT.R1(b) SHOW CAUSE NOTICE DT. 16-3-1993. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 29162 of 1999 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 30th September, 2008. J U D G M E N T The petitioner is a forest guard. For a period of six months, from 29-6-1988 to 23-11-1988, he was working in Ponmudi beat of Thalikuzhi section in Peechi Range of Thrissur division. He, along with others who were in service and worked in the particular section, was proceeded against for lack of devotion to duty in the matter of detecting illegal felling of forest trees, which ultimately ended in Ext. P4 order, whereby the punishment of barring of three increments with cumulative effect and recovery of loss caused to the Government on account of the misconduct was imposed on the petitioner. The petitioner's appeal was rejected by Ext. P5 order. Pursuant to the judgment of this Court in O.P.No. 19891/1995, the matter was re- considered and Ext. P6 order was passed, whereby the petitioner's appeal was again rejected. A revision filed ended in Ext. P7 order confirming the punishment and directing recovery of 9% interest also on the amount directed to be recovered from the petitioner. The petitioner challenges Exts. P4, P6 and P7 orders in this original petition on three grounds. First is that copy of the enquiry report was not given to the petitioner. Second is that the petitioner was in service only for six months in the particular station and the others who were working in the particular station for longer periods were either exonerated or directed to be paid lessor amounts as loss caused to the State. The third is that the punishment imposed is harsh and disproportionate to the gravity of the misconduct. 2. A counter affidavit has been filed by the 1st respondent disputing the contentions of the petitioner. 3. I have heard the learned Government Pleader also. I have considered the rival contentions in detail. 4. The first ground on which the disciplinary proceedings are O.P. No. 29162/1999 -: 2 :- challenged is that copy of the enquiry report has not been furnished to the petitioner. In the original petition, the petitioner says thus about the same: “3. An enquiry was conducted by the Enquiry Officer into the allegations levelled against the petitioner. In the report, the Enquiry Officer held that the charges levelled against the petitioner had been proved. The 3rd respondent who agreed with the findings of the Enquiry Officer provisionally decided to impose punishment of barring 3 increments with cumulative effect on the petitioner and to recover a sum of Rs. 36,859/- from the petitioner vide Order No. 10615/88 dated 7-6-1994, of which a true copy is produced herewith and marked as Exhibit P-4. Copy of the enquiry report culminated in Exhibit P-4 was, however, not furnished to the petitioner.” He again states in ground D thus in respect of the same: “(d) The petitioner was punished based on the enquiry report submitted by the Enquiry Officer. A copy of the enquiry report has not at all been served on the petitioner. It is submitted that before deciding to accept the enquiry report and act upon it, the disciplinary authority ought to have issued notice to the petitioner. The procedure followed in the matter in issuing Exhibit P-7 is violative of the principles of natural justice and against the law laid down by the decision of the Hon'ble Supreme Court of India reported in 1993(4) S.C.C. 727 and 1999 (1) S.C.C. 588.” In the counter affidavit filed, the petitioner is stated to have been served with Ext. R2 show cause notice in respect of the proposed punishment in which it is specifically stated that copy of the enquiry report was forwarded along with the same. The petitioner has not submitted a reply to Ext. P2 show cause notice. He does not state that he did not receive Ext. R2 show cause notice. In fact, after the filing of the counter affidavit producing along with it the show cause notice, the petitioner has even submitted I.A.No. 4847/2007 seeking amendment of the original petition. The petitioner did not choose to state that he has not received Ext. R2 show cause notice, in the amended original petition. If the petitioner had not received the enquiry report along with Ext. R2 show cause notice, he would O.P. No. 29162/1999 -: 3 :- certainly have stated so in the reply to the same, which also he has not submitted. Further, the petitioner is stated to have filed an appeal against Ext. P4 order. He has not chosen to produce a copy of the appeal memorandum to show that in the appeal memorandum, he had taken a contention that the copy of the enquiry report was not furnished to him. In the above circumstances, I am not inclined to accept the contention of the petitioner that a copy of the enquiry report was not furnished to him, at its face value. When the petitioner does not dispute having received Ext. R2 show cause notice, he had a duty to prove that the statement in Ext. R2 show cause notice that the copy of the report has been forwarded along with the same is not correct. In Ext. P4 order, it is stated that the petitioner has not filed any reply to the show cause notice. In such circumstances, the petitioner's contention that he has not been served with a copy of the enquiry report cannot be accepted. As such, I do not find any merit in that contention. 5. But, it is a totally different situation in respect of the second contention. From Ext. P3, I find that one C.R. Rugmangadhan who was in the particular beat for the period from 12-10-1987 to 30-11- 1988 has been exonerated on the ground that he was in charge of the particular beat only for nine months. Further, from Ext. P4, I find that persons who were in service for far greater periods than the period for which the petitioner had worked, has been directed to pay a very meagre sum as loss caused to the Government. For example, in Ext. P4, Sri. P.S. Surendran, who was in the beat for the period from 9-3- 1987 to 12-1-1989 was directed to pay only Rs. 815/-, whereas the petitioner who was there for hardly five months was directed to pay Rs. 36,859/-. Of course, the fact that another person has been exonerated illegally cannot lessen the guilt of the petitioner. The O.P. No. 29162/1999 -: 4 :- petitioner has been found to be negligent in his duties. The fact that another similarly situated employee was also negligent who has been exonerated is no ground to exonerate the petitioner from the misconduct. However, since persons who have been exonerated are not parties before me, I cannot now direct the respondents to take action against them. Further, their exoneration is also not under challenge before me. In any event, the Supreme Court has, in the decision of Kerala State Electricity Board v. Saratchandran P. & another, (2008)4 KHC 91 (Supreme Court) held that provisions of Article 14 cannot be invoked only because some illegality has been committed by an employer as a result whereof some employee has obtained benefit and no equity can be claimed on the basis of an illegality, which decision is squarely applicable to the facts as stated above. Still, I find considerable force in the contention of the petitioner that after having found 14 persons guilty, the petitioner who had been in the particular beat for hardly five months could not have been mulcted with the maximum amount as loss caused to the Government, whereas persons who were in that beat for far greater periods had been directed to pay only far less amounts. Therefore, I am of opinion that when all the 14 persons were found guilty, the petitioner could have been mulcted with proportionate 1/14th of the total amounts computed as loss to the Government. Of course, without hearing the other 13 persons, I cannot now direct that they be directed to pay proportionate amounts. It is up to the Government to take appropriate steps in the matter. Whether the Government recovers from others proportionately, I am of opinion that recovery from the petitioner shall only be proportionately, that is, to say, he shall be liable to pay only 1/14th of the total loss caused to the Government. However, I am not inclined to interfere with the O.P. No. 29162/1999 -: 5 :- punishment of barring of three increments with cumulative effect imposed by the impugned orders, as I am not satisfied that the same is disproportionate to the gravity of his misconduct. 6. I am not also not satisfied that in revision the Government could have directed the petitioner to pay interest at the rate of 9% also when the original and appellate orders did not contain such a direction. Therefore, the direction in Ext. P7 order to pay 9% interest is also set aside. In the result, the original petition is allowed to the above extent. Revised orders fixing the loss recoverable from the petitioner in accordance with the directions as above shall be passed within two months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/