IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND OCTOBER 2009 / 30TH ASWINA 1931 WP(C).No. 14415 of 2009(V) ------------------------------------ PETITIONER: ------------------- O.M. SEBANNIZA BEEVI, PRINCIPAL, G.H.S.S. SREEKANDAPURAM, KANNUR DISTRICT. BY ADVS. SRI.M.A.FIROZ SRI.GEORGE MECHERIL RESPONDENTS: --------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. SRI. M.R. SREELATHA GOVERNMENT PLEADER FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14415 of 2009(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF COMMUNICATION ISSUED TO THE PETITIONER BY THE SECOND RESPONDENT. EXT.P2 : TRUE COPY OF EXPLANATION ON 05.01.2008 FILED BY THE PETITIONER. EXT.P3 : TRUE COPY OF ORDER NO. AD. 13056/08/HSE DATED 23.07.2008. EXT.P4 : TRUE COPY OF JUDGMENT DATED 17.09.2008 IN W.P.(C) NO. 23981/08. EXT.P5 : TRUE COPY OF MEMO OF CHARGES AND STATEMENT OF ALLEGATION SERVED ON THE PETITIONER. EXT.P6 : TRUE COPY OF INQUIRY REPORT DATED 23.06.2008. EXT.P7 : TRUE COPY OF THE EXPLANANTION SUBMITTED BY THE PETITIONER ON 29.12.2008. EXT.P8 : TRUE COPY OF THE MINUTES OF THE PTA MEETING HELD ON 14.06.2007 MENTIONED IN EXT.P6 INQUIRY REPORT. EXT.P9 : TRUE COPY OF PROCEEDINGS NO.AD.B1 13056/08 DATED 29.04.2009. EXT.P10 : TRUE COPY OF THE PURCHASE COMMITTEE MINUTES DATED 25.03.2007. EXT.P11 : TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING MINUTES DATED 28.03.2007. /TRUE COPY/ P.A.TO JUDGE. T.R. RAMACHANDRAN NAIR, J. ========================== W.P.(C). No.14415/2009-V ========================== Dated this the 22nd day of October, 2009 J U D G M E N T The petitioner herein is aggrieved by the proceedings by which the disciplinary action against her stands finalized as per Ext.P9 order. As per Ext.P9 a liability to the tune of Rs. 27,000/- is fixed along with interest @ 12 .5% per annum from the date of purchase till the date of remittance. 2. The petitioner at the time of filing of the Writ Petition was the Principal of the Government Higher Secondary School, Sreekandapuram. Earlier she was the principal of the Tagore Government Higher Secondary School, Thaliparamba. 3. There was an allegation of misappropriation of fund in purchasing the Laboratory equipments from the funds allotted to the School. This was informed to her by Ext.P1 to which an explanation was submitted as per Ext.P2. Thereafter by Ext.P3 she was ordered to be transferred. Ext.P5 is the copy of the memo of charges and Ext.P6 is W.P.(C). No. 14415/2009 -:2:- an inquiry report relied upon in the memo of charges. The main charges raised against her in Ext.P5 are that:- i. While holding the charges of Principal she has failed to see that the purchase of laboratory equipments were made strictly in accordance with the Rules, ii. That she has purchased laboratory equipments at exorbitant rates leading to monetary loss to Government, iii . That she has fabricated documents to cover up the lapse, and iv. That she had tampered with the minutes of the Parent Teachers Association meeting to cover up the malpractices committed in the purchase of laboratory equipments using public funds. These were denied by her in Ext.P7 explanation. It is explained that the purchase is made as per the decision of the expert committee. 4. The learned counsel for the petitioner submitted that even in Ext.P6 report there is no finding that the petitioner misappropriated any W.P.(C). No. 14415/2009 -:3:- amount or has caused any loss to the Government by her involvement. A reading of the inquiry report Ext.P6 shows that the inquiry was conducted on a complaint lodged by P.T.A Vice President and 4 members of the P.T.A. regarding misappropriation of fund by the principal. The findings on those are separately entered into in Ext.P6. As regards Item No.1- misappropriation of public funds, the finding is that on verification of the available documents produced at the time of inspection, it is found that the Principal failed to observe Store Purchase Rule and to ensure financial propriety and the prescribed standard and quality while making the purchases. There was no proper action from the part of the principal to see that the purchases were made strictly in accordance with rules and by avoiding any kind of financial loss to the Government. There is no finding regarding any misappropriation of funds or that she has caused as financial loss to the Government. 5. Against allegation No.2 also, that she had purchased laboratory equipments at higher rate by indulging into corrupt practice, no separate finding is rendered to the effect of causing any loss to the Government. An observation is made to the effect that the selected firm supplied all the W.P.(C). No. 14415/2009 -:4:- items at an exorbitant rate. The crucial allegation on which the present order is passed appears to be Item No. 5 in Ext.P6, that she had confessed before the P.T.A meeting that she had actually received Rs. 27,000/- as commission in this dealing. The relevant portion of the minutes of the meeting is to the effect that the commission which could be obtained on purchase of the articles of the lab is set apart for the purchase of office articles. The finding is that the said portion of the minutes is scored and being the custodian of the document the principal has violated the direction of the Government in this regard, by tampering the minutes. Ultimately, it is recorded that, “hence the said allegation cannot be neglected”. The opinion formed in to the effect that the Principal not acted in accordance with the orders issued by the Government from time to time and also in accordance with the stores Purchase Rules. The recommendation made in the report is that disciplinary action has to be initiated against the Principal for financial misappropriation. 6. The learned counsel for the petitioner submitted that apart from the Principal, there were other members in the purchase committee and therefore since the decisions have been taken by the members of the W.P.(C). No. 14415/2009 -:5:- committee along with the petitioner, there is no merit in the disciplinary proceedings initiated by singling out her in the matter. It is submitted that she had not accepted any personal gifts from the tenderers. Reliance is placed on Ext.P2 wherein the only statement made by her is that when purchase order was issued they were requested to donate certain furnitures and lab articles to the school and the tenderers had supplied furnitures and lab equipments to the school which were accepted. It is therefore pointed out that as far as the allegation of misappropriation of funds is concerned there is no evidence at all. She had not misappropriated any amounts set apart for the purchase of the required articles. It is also submitted that no loss has been caused to the Government in the matter. In Ext.P9 the finding in that misappropriation to the tune of Rs. 27,000/- is established in the purchase. Accordingly it is fixed as a liability against the petitioner. 7. A reading of the memo of charges along with the statement of allegations shows that there is no specific allegation that the petitioner had misappropriated the amount of Rs. 27,000/- or that she had caused loss to the tune of Rs.27,000/-. The memo of charges is too vague in this regard. The approach appears to be that the petitioner had violated certain W.P.(C). No. 14415/2009 -:6:- procedures in relation to the acceptance of tenders as prescribed by the relevant orders and as a result of the combined effect of those omissions, loss has been caused to the Government. Evidently the respondent have proceeded against the petitioner in terms of Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. When a disciplinary action against person is sought to be proceeded with, it is well settled that the charges should be specific and cannot be vague. The petitioner can submit explanation only in terms of specific charges raised against her. Ext.P5 lacks in details of the amount allegedly misappropriated or described as financial loss. The Government Pleader submitted that the amount represents cost of the articles which was gifted to the school by the tenderer and accepted by the petitioner. As regards this also there is no specific allegation in the memo of charges. Further going by the explanation Ext.P2 the petitioner had only stated that she had not personally received any articles from the tenderer and the articles like furnitures and lab equipments were donated to the school itself. There is no contra evidence to find whether the actual recipient is the petitioner and not the school. In that view of the matter, it cannot be conclusively held that the petitioner is the recipient of furniture and lab equipments, the value of which could be W.P.(C). No. 14415/2009 -:7:- reckoned as Rs. 27,000/-. Therefore the said contention cannot also be accepted. It is not a case where the finding is rendered to the effect that by giving the contract to the highest tenderer loss has been caused to the Government or the value of the articles supplied is not in tune with the award amount of the contract. No attempt has been made in the inquiry report to find out whether any actual loss has been caused to the Government by the tender. The decision to accept the particular tender in by the expert committee consisting of different members. It is not a case where any action has been taken against other members of the purchase committee also. It is clear that the petitioner has been acting as the member and convenor of the purchase committee. The copy of the minutes produced as Exts.P8 and P10 show that the different members of the committee were also present in the meeting. Ext.P8 will show that in the crucial meeting which was held on 14.06.2007, which contained a decision regarding the commission, which is seen struck off, the petitioner was not present also. 8. Therefore it is a case where there is no evidence which conclusively pin points the guilt of the petitioner, either in regard to the misappropriation of fund or in relation in regard to the allegation of causing loss to the Government. The penalty that could be imposed under Rule 11 W.P.(C). No. 14415/2009 -:8:- (iv) (a) of K.C.S (C.C.&A) Rules, especially is : “ Recovery from pay of the whole or part of any pecuniary loss caused to a State Government or the Central Government or to a local authority by negligence or breach of orders”. 9. Here the crucial finding is that the petitioner had misappropriated an amount of Rs. 27,000/-. In the absence of any evidence to prove this allegation, the finding in the report Ext.P6 or in Ext.P9 that the petitioner is answerable for misappropriation of the funds to the tune of Rs. 27,000/- cannot stand scrutiny. It is arrived at only on the basis of conjunctures and surmises. Ext.P6 is based on a surprise inspection, in which the opinion in that Stores Purchase Rules have not been followed even in respect of Para 5 in Ext.P6 regarding the receipt of commission, the observation is only that the “said allegation cannot be neglected”. This will not substitute for a proof of guilt in a disciplinary inquiry. Therefore, the very basis of the order by which liability to the tune of Rs. 27,000/- is imposed against the petitioner falls to the ground. In that view of the matter Ext.P9 cannot be supported. Hence Writ Petition is allowed. Ext.P9 is quashed. 10. The learned Government pleader then submitted that permission W.P.(C). No. 14415/2009 -:9:- may be accorded to the respondents to proceed against the petitioner afresh in the matter. Since the disciplinary action itself was initiated based on the memo of charges which concluded in the order Ext.P9 and the entire action cannot be supported for want of proper evidence and materials, said request cannot be entertained, and hence rejected. There were other members in the Expert Committee which decided to accept the tender. No costs. (T.R. Ramachandran Nair, Judge.) ln