IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 OP.No. 17291 of 1998(H) ----------------------- PETITIONER(S): --------------- A.A.SANKARANKUTTY, SENIOR OFFICE ASSISTANT, K.T.D.C. (KERALA TOURISM DEVELOPMENT CORPORATION), HOTEL NANDANAM, GURUVAYUR. BY ADV. SRI.P.RAMAKRISHNAN RESPONDENT(S): ---------------. 1. KERALA TOURISM DEVELOPMENT CORPORATION, REP. BY ITS MANAGING DIRECTOR, MASCOT SQUARE, TRIVANDRUM. 2. DISTRICT COLLECTOR & CHAIRMAN, TOURISM PROMOTION COUNCIL, TRICHUR. ADV. SRI.B.GOPAKUMAR G.P. SMT.N.SUDHA DEVI THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18.9.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 17291/98 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER OF R1 DTD.11.4.97. P2. COPY OF THE ORDER BY R2 DTD.19.6.97. P3. COPY OF THE PROCEEDINGS OF R2 DTD.30.6.98. P4. COPY OF THE LETTER DTD.31.7.98 BY R2. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE GOVT. ORDER DTD.8.4.97. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 17291 of 1998 ================== Dated this the 18th day of September, 2009 J U D G M E N T The petitioner is an employee of the 1st respondent-Kerala Tourism Development Corporation. By Ext.P1 order, the petitioner was deputed to the 2nd respondent-District Tourism Promotion Council for a period of two years. In Ext.P1 it has been specifically mentioned that the District Tourism Promotion Council will pay to the petitioner full salary, allowances, bonus, contributory provident fund etc. as eligible in the Corporation. But, by Ext.P2, the District Tourism Promotion Council chose to alter that condition and it was stated therein that the petitioner will draw pay and allowances eligible to him from the income generated at the unit as per Ext.P1. According to the petitioner, the petitioner tried his level best to develop the unit into a full fledged tourist spot, but due to lack of co-operation from the authorities, he failed. According to him, when it was sure that he will not get any creative assistance in the matter from the authorities, he chose to be reverted to the 1st respondent-Kerala Tourism Development Corporation. Accordingly, by Ext.P4, he was reverted to the parent department. But in the same, it was also stated that the petitioner is liable to refund large amounts as stated therein. The petitioner's main contention in this original petition is that the petitioner is not liable to make good any of the amounts mentioned in Ext.P4 and before O.P.17291/98 2 issuing Ext.P4, the petitioner had not been served with any show cause notice nor was a hearing conducted. According to the petitioner, since the allegations on the basis of which the amounts are demanded from the petitioner, amount to allegations of misconduct, the petitioner could not have been required to pay those amounts without first finding the petitioner guilty of the allegations in a proceeding known to law. 2. The 1st respondent has filed a counter affidavit and the 2nd respondent has filed a statement. Since Ext.P4 has been issued by the 2nd respondent, what is relevant is their stand in the matter. Their stand in respect of the same is as follows: “4. The petitioner joined as Manager of the Unit on 3.5.1997. On the request of the Manager advance amount was given to him for payment of wages to the employees. Apart from this he asked for various contingent expenses and an aggregate amount of Rs.2,00,631/- has been given to him on various occasions during the last one year. The amounts were given to him for specific purposes and he was instructed time and again to keep records properly and to produce the vouchers. But he failed to do so. He is directly responsible to the Secretary and also Chairman of D.T.P.C. Occasionally he put forth his proposal for the development of the unit which involved additional financial commitment. Even then the schemes were approved and amounts disbursed to him for carrying the work. In November, 1997 he reported that a work entrusted with M/s.Shabab Travels and Aluminum Fabrications had retracted. An amount of Rs.10,000/- was given to him as advance on 26.11.1997 to carry out the work for protecting the restaurant floor from rain-water during the rainy season. But he did not carry out the work till 31.7.1998 and it was revealed that the fund was diverted for other purposes without obtaining sanction. He has not produced the vouchers for the expenditure inspite of repeated instructions. 5. It is respectfully submitted that on 16.2.1998 he submitted a proposal for celebrating the first anniversary of the Unit with a 'Payasa Mela Week' from 19.4.98. He also requested an advance of Rs.25,000/- but an amount of Rs.20,000/- was sanctioned. He prevailed upon the O.P.17291/98 3 DTPC a proposal that the Mela could be made a grand success with sponsorship of various business firms and not a single pie has to be met by the DTPC and that the advance is only for meeting initial expenses and will be refunded to DTPC. The Payasa Mela turned out to be big loss amounting to Rs.40,025/- due to mismanagement and internecine activities of the manager. It was revealed on enquiry that the Payasa Mela was a boggie for obtaining fund of DTPC on a false pretext and sponsorship offers were fake. When he was questioned about this he misbehaved. It was beyond suspicion that his management was an utter failure and he could not orchestrate the employees of the unit to work in a coherent manner due to his personal interest in misusing funds. He has misused or misappropriated the funds entrusted with him. It was a breach of trust. On 28.4.1998 he submitted application for discontinuance of his service in DTPC and reversion to his parent department. Consequently he was relieved on the A.N. of 31.7.1998 pending finalisation of liabilities, as per the P4 order challenged in the Original Petition. 6. It is respectfully submitted that the audit of the accounts is yet to be finalsied but it has been found that Shri.A.A.Sankarankutty is liable to refund the Rs.10,000/- given as advance on 26.11.1997 and Rs.20,000/- given as advance on 17.4.1998. He is also liable to repay Rs.40,025/- the loss sustained to DTPC on account of conducting Payasa Mela Week because the Mela was conducting absolutely at his instance and absolute responsibility. The DTPC cannot bear the loss sustained on this account due to his mismanagement. A lot of omplaints are still being received that he was purchased provisional materials without paying for it. He has inflated the amount spent for a Pendal (Shamiana) and that too without obtaining an approved estate from the Assistant Engineer as ordered from this office. The amount of liabilities could be finally fixed only after detailed examination and audit of account and after notifying and hearing the petitioner. It is in this circumstances that exhibit P4 order was issued. 7. It is submitted that as manager the petitioner alone is responsible for management of the unit. Whatever amount has been given to Shri.Sankarankutty is from the state found and as a custodian of public money, he is liable to observe the financial properties. As a public servant he is subject to discipline and conduct rules of a government servant. In his case he has misused, misappropriated and embezzled government money for which he cannot escape from the liabilities of a public Accountant. 9. (sic) It is respectfully submitted that the salary and other allowances of the petitioner was drawn by him from the accounts of the Wayside Amenity Unit. The petitioner has not, till date furnished the accounts to the respondent, inspite of occasional demand for the same by the respondent. The full salary and other benefits if any can be released only after getting the accounts of the unit, which is to be furnished by the petitioner. Last Pay Certificate also can be issued only after getting the O.P.17291/98 4 information as to the pay drawn by him from the accounts. In that circumstance the petitioner is to be directed to furnish proper accounts to the respondent so as to grant the first relief. Ext.P4 is only a proceedings relieving the petitioner from deputation service. It gives a preliminary indication to the petitioner that amounts are due from him to the council. There is no arbitrariness in Ext.P4. Final liability will be fixed only in accordance with law.” Admittedly, before issuing Ext.P4, no hearing, enquiry etc. has been conducted in the matter. In fact, they specifically state in their statement that it is only a preliminary order and final liability will be fixed in accordance with law. 3. I have heard both parties. 4. It is not disputed before me that before demanding amounts stated in Ext.P4, the petitioner had not been given a notice or hearing. Since the amounts demanded therein are on the basis of the allegations, which amount to misconduct, the same could not have been demanded from the petitioner except after complying with the procedure prescribed under law. Therefore, I dispose of this original petition holding that the demand of the amounts in Ext.P4 cannot be enforced without first finding the petitioner guilty of the misconducts alleged therein, which are the basis of the demand for the amounts, after complying with the procedure for conducting disciplinary proceedings against an employee of the 2nd respondent, as per rules. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge O.P.17291/98 5 S.SIRI JAGAN, J. ================== O.P.No. 17291 of 1998-H ================== J U D G M E N T 18th September, 2009