IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 OP.No. 38458 of 2001(C) ---------------------------------- PETITIONER: ------------------- K.K. APPU, EXECUTIVE ENGINEER, QUALITY CONTROL DIVISION, KERALA WATER AUTHORITY, CALICUT. BY ADV.SRI.K.K.APPU, SRI.ELDHO K.MATHEW. RESPONDENTS: ------------------------ 1. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, KERALA WATER AUTHORITY, THIRUVANANTHAPURAM. 2. CHIEF ENGINEER, INVESTIGATION, PLANNING AND DESIGN, KERALA WATER AUTHORITY, COCHIN -11. 3. EXECUTIVE ENGINEER, PUBLIC HEALTH, MECHANICAL DIVISION, KERALA WATER AUTHORITY, NETTOOR, ERNAKULAM DISTRICT. BY ADV.SRI.J.KRISHNA KUMAR, SC, KWA . THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 63158/2001 IN O.P. NO. 38458/2001-C DISMISSED 29/02/2008. SD/- T.R.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: ORDER NO. CE/IPD/FI - 923/2001 DTD. 7TH DECEMBER, 2001 ISSUED BY THE R.2, DIRECTING RECOVERY OF RS. 25811/- FROM THE PETITIONER. EXT.P.2: FACT FINDING ENQUIRY REPORT DTD. NIL ON THE THEFT OF 12MM TORSTEEL FROM THE CENTRAL STORE YARD, KERALA WATER AUTHORITY, NETTOOR, KOCHI, IN JULY, 1998. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. T.R.RAMACHANDRAN NAIR, J. ========================= OP.No.38458 of 2001-C. ========================= Dated this the 29th day of February, 2008. J U D G M E N T The petitioner retired as Executive Engineer under the Kerala Water Authority. The challenge in this original petition is against Ext.P1 by which an amount of Rs.25,811/- was sought to be recovered from the petitioner. This was issued just before his retirement on 7.12.2001. The said order was issued by the Chief Engineer (IPD) of the Water Authority under the directions of the Managing Director. The proceedings does not show that it was preceded by any disciplinary enquiry for recovery of the alleged loss or that atleast any show cause notice was issued to him proposing the recovery. 2. The petitioner attacks the same on various grounds. It is pointed out that there were no proceedings against him at that OP.No.38458 of 2001-C. -: 2 :- time including communication of any memo of charges etc. The facts show that while he was working as Asst.Executive Engineer at the Central Store Sub Division, Nettoor a theft occurred in the premises in July, 1998 and this was noticed by the security staff in the night on 24.7.1998. This was reported to the Asst.Engineer on the following day who in turn reported the matter to the police. 4.525 tones of 12 mm torsteel was stolen. In connection with the said incident the police registered a crime as Crime No.123/98 alleging offence under Sec.379 of the Indian Penal Code. They recovered about 500 Kgs. of stolen articles. The facts reveal that the concerned authorities had conducted a fact finding enquiry through the Deputy Chief Engineer Sri.M.A.Abdul Rasheed. Thereafter a report Ext.P2 had been submitted in tune with the facts found in the enquiry. The lapse, if any, from the part of any particular officer has not been pin pointed in Ext.P2, states the petitioner. In the operative portion under the heading “conclusion and recommendation”, what is recommended is the following, “the OP.No.38458 of 2001-C. -: 3 :- officers who failed to supervise effectively the store yard may be given serve warning with minor punishment to avoid recurrence of such events in future.” It is therefore contended that the entire action against the petitioners is illegal and arbitrary. 3. The respondents have filed a counter affidavit wherein it is stated that in the report the various employees including the watchman in duty at night have been saddled with non performance by way of lack of patrolling which resulted in the theft. It is further submitted that, there was lack of supervision on the part of the Asst.Engineer and his controlling officer the Asst.Executive Engineer. The enquiry officer found that the petitioner along with four others are responsible for the loss sustained to the Kerala Water Authority. Regarding the quantum what is stated is that the cost of the stolen materials was calculated at Rs.76,979/- as it was not fixed by the enquiry officer. The 2nd respondent issued proceedings fixing individual liability. Thus the counter affidavit does not throw any light as to the question OP.No.38458 of 2001-C. -: 4 :- whether any valid proceedings had been initiated to recover the alleged loss, apart from the fact finding enquiry. Two things are clear, that only a fact finding enquiry alone was conducted and that officer did not fix any liability. 4. It is admitted on both sides that the Kerala Civil Services (Classification, Control and Appeal) Rules applies to the employees of the Kerala Water Authority. Recovery from pay is one of the penalties provided under Rule 11. Even for ordering such recovery there should have been proceedings culminating in fixing liability for the lapses and imposing punishment. Apart from the same there can be no other method by which recovery can be ordered merely because some alleged loss has been occasioned to the organisation. At any stretch of imagination it cannot be held that the theft occurred because of any particular action or omission on the part of the petitioner herein and even Ext.P2 report does not say so. 5. For all these reasons the recovery ordered cannot stand OP.No.38458 of 2001-C. -: 5 :- scrutiny. Therefore, Ext.P1 is quashed. The respondents are directed to refund the amount of Rs.25,811/- withheld from the DCRG due to the petitioner within a period of six weeks from the date of production of a copy of this judgment. The Original Petition is allowed as above. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-