IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 7TH JULY 2011 / 16TH ASHADHA 1933 WP(C).No. 15146 of 2005(C) ---------------------------------------- PETITIONER(S): ----------------------- SRI. JOJITH K.ANTONY, MANAGER, K.T.D.C., THANNERMUKKOM. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): -------------------------- KERALA TOURISUM DEVELOPMENT CORP. LTD., YATRI NIVAS, THYCAUD, THIRUVANANTHAPURAM-695 014, REPRESENTED BY ITS MANAGING DIRECTOR. BY ADV. MR.B. GOPAKUMAR, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 15146 of 2005(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE CIRCULAR DATED 23/01/2002. EXT.P2: COPY OF THE SHOW CAUSE NOTICE DATED 22/03/2003. EXT.P3: COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED 28/03/2003. EXT.P4: COPY OF THE ENQUIRY REPORT DATED 27/10/2003. EXT.P5: COPY OF THE DETAILED EXPLANATION SUBMITTED BY THE PETITIONER DATED 1/01/2004. EXT.P6: COPY OF THE ORDER ISSUED BY THE 1ST RESPONDENT DATED 14/01/2004. EXT.P7: COPY OF THE MEMORANDUM OF APPEAL DATED 28/02/2004. EXT.P8: COPY OF THE ORDER OF THE BOARD OF DIRECTORS OF THE 1ST RESPONDENT DATED 01/02/2005. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE rs S.SIRI JAGAN, J. ================== W.P.(C).No. 15146 of 2005 ================== Dated this the 7 th day of July, 2011 J U D G M E N T The petitioner was the Manager of K.T.D.C. Malabar Mansion, Calicut, which is a unit of the respondent-Kerala Tourism Development Corporation Limited. He was the Manager in that unit for a very short period from 12.9.2002 to 25.11.2002. During that period, the internal audit found out defalcation of money. Disciplinary proceedings were initiated against the petitioner for supervisory lapses in preventing such defalcation. An enquiry was conducted. The petitioner was found guilty, by Ext.P4 report, of the enquiry officer and based on the findings therein, the petitioner was imposed with the punishment of barring of three annual increments with cumulative effect. The petitioner is aggrieved by the same. 2. The petitioner does not dispute the validity of the enquiry as such. The petitioner's only contention is that the findings in the enquiry report are perverse and against the evidence available. According to the petitioner, the defalcation is done by the person, who went to the bank for remitting amounts. He used to remit smaller amounts than what was supposed to be deposited by correcting the pay-in-slips. The accounts were maintained by an Accountant under the Manager. According to the petitioner, it was not the duty of the w.p.c.15146/05 2 Manager to verify the accounts as such and his only duty was to forward the accounts to the regional office for reconciliation of the same. Therefore, no duty was cast upon the Manager to verify the accounts as such to find out any defalcation. Therefore, according to the petitioner, the petitioner is totally innocent of the charges against him and he could not have been imposed with the punishment insofar as he had not been negligent in any way of the duties assigned to them. The petitioner particularly refers to the fact that the Accountant, who was responsible for maintaining the accounts correctly, was not proceeded against and the Manager, who succeeded the petitioner, during whose tenure also defalcation was detected, were not proceeded against at all. Th petitioner points out that as is clear from the documents relied upon in Ext.P4 enquiry report, out of the 48 documents relied upon by the enquiry officer, only two documents related to the period during which the petitioner was the Manager, 45 related to the previous Manager and one related to succeeding Manager. The petitioner and the predecessor Manager were proceeded against and both were imposed with the same punishment, despite the fact that the predecessor Manager was found responsible for 46 instances and the petitioner was responsible only for two instances. The successful Manager, who was responsible for at least one instance was not proceeded against at all. Further, the Accountant, who was w.p.c.15146/05 3 responsible for all, was not proceeded against at all. The petitioner, therefore, submits that the finding in Ext.P4 that the petitioner was guilty of the misconduct of supervisory lapses alleged against him is totally perverse and unsustainable. Consequently, the imposition of punishment is also unsustainable, is the contention. 3. The learned counsel for the respondent vehemently supports the impugned proceedings. According to him, the petitioner was the Manager in a small office of the respondent, where the petitioner is the person in authority, who is the person responsible to see that the staff under him perform their duties correctly and diligently. It is the duty of the Manager to at least periodically check the accounts and to see that the amounts deposited were accounted for in the bank's accounts. Insofar as the fact that during the petitioner's tenure ` 30,000/- was found misappropriated is not disputed at all, the petitioner is guilty of supervisory lapses in preventing misappropriation is the contention raised by the learned counsel for the respondent. 4. I have considered the rival contentions in detail. 5. It is not disputed before me that the petitioner was in office in the particular unit only for the period from 12.9.2002 to 25.11.2002. It is also not disputed before me that during his tenure w.p.c.15146/05 4 ` 30,000/- was found missing in the accounts. Despite the vehement protestation of the learned counsel for the petitioner, I am unable to accept the contention that the petitioner is not responsible in any way whatsoever for the missing of the amounts. As the Manager of a smaller unit of the respondent, it was certainly his duty to see that the staff under him perform their duties and functions diligently and correctly. If I hold that it was not his duty to prevent defalcation of money, that would be preposterous. As the head of the unit, it was certainly the duty of the petitioner to see that no defalcation of money is committed by the staff under him. It was also the duty of the Accountant, who has to maintain the accounts correctly, to act diligently to prevent any such defalcation of money. In such circumstances, clearly the petitioner has failed in his duty. Therefore, I have no hesitation to hold that the petitioner is guilty of supervisory lapses. 6. But I am disturbed by the fact that the Accountant, who was more guilty than the Manager, was not proceeded against at all. The petitioner has specifically averred the same in the writ petition, which is not seen countered by the respondent. Likewise, it is not disputed before me that the Manager, who succeeded the petitioner, who was responsible for one instance of defalcation has also not been proceeded against. Perhaps, the fact that they had not been proceeded w.p.c.15146/05 5 against may not be sufficient to hold that the petitioner is not guilty of supervisory lapses. But that attitude of the respondent certainly qualifies for consideration of the question as to whether the punishment imposed on the petitioner is proportionate to the gravity of the misconduct. In this connection, it has also to be noted that the predecessor Manager, who was responsible for 46 instances of defalcation was imposed with the same punishment as that of the petitioner. It may be argued that it is not the loss of money that matters, but the gravity of the lapse that matters. But certainly a person, who is guilty of more lapses, should be imposed with higher punishment. Further it is an admitted fact that the petitioner was working as the Manager in that office hardly for two-and-a-half months. All these facts prompt me to take a lenient view in the matter of punishment. The petitioner has been imposed with the punishment of barring of three annual increments with cumulative effect. I am of opinion that the punishment of barring of one annual increment without cumulative effect would be commensurate with the gravity of the misconduct committed by the petitioner in the particular facts and circumstances. Accordingly, the respondent is directed to reconsider the matter and impose the punishment commensurate with the gravity of the misconduct as found above. Orders in this regard shall be issued and the arrears of salary, on such reduction of punishment, should be w.p.c.15146/05 6 released to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge