IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 OP.No. 3885 of 2003(K) ----------------------------- PETITIONER(S): --------------- N.RAJENDRAN, AGED 47 YEARS, S/O. S.NEELAKANDA PILLAI, KEERTHI, PADA NORTH, KARUNAGAPPALLY (RATIONING INSPECTOR, TALUK SUPPLY OFFICE, MAVELIKKARA) BY ADV. MR.T.M.ABDUL LATHEEF RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FOOD AND CIVIL SUPPLIES DEPARTMENT, THIRUVANANTHAPURAM. 2. KERALA STATE CIVIL SUPPLIES CORPORATION REPRESENTED BY ITS MANAGING DIRECTOR, GANDHI NAGAR, COCHIN. 3. TALUK SUPPLY OFFICER, MAVELIKKARA. 4. DISTRICT SUPPLY OFFICER, ALAPPUZHA. ADVS. MR.V.J.MATHEW, SC CIVIL SUPPLIES CORPN MR.JOY GEORGE, SC, SUPPLYCO GOVERNMENT PLEADER MS. SMITHA SUKUMAR FOR R1,3 &4 MR.MILLU DANDAPANI FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 3885 of 2003 ORDER ON C.M.PNO.6885 OF 2003 IN O.P.NO.3885 OF 2003 CLOSED. 8.4.2009 SD/- S. SIRI JAGAN, JUDGE. PETITIONER'S EXHIBITS EXT.P1: COPY OF PROFORMA PREPARED BY G. KARUNAKARAN 24-10- 1983. EXT.P2: COPY OF ORDER NO.(CS)C6-37200/26(3) DATED 7-11-1991 PASSED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE ORDER NO.(CS)C6-4679/92 DATED 10-3-1994 PASSED BY THE BOARD OF REVENUE. EXT.P4: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN O.P.NO.7023 OF 1994 DATED 9-12-1998. EXT.P5: COPY OF G.O.(RT) NO.65/2001/F&CSD DATED 5-3-2001 OF THE FIRST RESPONDENT. EXT.P6: COPY OF THE LETTER NO.CS3.2135/02 DATED 24.7.2002 OF THE 4TH RESPONDENT. EXT.P7: COPY OF THE SHOW CAUSE NOTICE NO.CS.C6-39194/96(2) DATED 23-9-1997 ISSUED BY THE BOARD OF REVENUE TO THE PETITIONER. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 3885 OF 2003 ---------------------------------------- Dated this the 8th day of April, 2009 JUDGMENT While the petitioner was working as Junior Assistant in the Civil Supplies Department of Government of Kerala, he has sent on deputation to Civil Supplies Corporation as Junior Assistant in 1983. While he was working so, disciplinary proceedings were initiated against one S.Mony for shortage of stock of Palmolein. Based on the explanation submitted by Mony proceedings against him were dropped. Later on, it was detected that the Unit Manager was responsible for the shortage. Therefore, the Unit Manager was proceeded against along with Mony also. An enquiry was conducted, in which it was found that the Unit Manager, the said Mony and the petitioner together were responsible for the irregularities detected. Accordingly, charges were framed against the petitioner also. Pursuant thereto, Ext.P2 order was passed, in which all the three employees were directed to make good the loss of Rs.89,280/- caused to the Corporation in equal shares of Rs. 29,760/- each. The said Mony O.P.No.3885/03 2 challenged the same and by Ext.P3 order the Commissioner of Civil Supplies set aside the order and dropped the action against the said Mony. In the meanwhile, the review petition filed by the petitioner in the matter was rejected. The petitioner approached this Court by filing O.P.No.7023/1994, in which this Court directed the Government to consider the petitioner’s appeal in the light of the dropping of charges against Sri. Mony. Pursuant thereto, Ext.P5 order was passed by the Government, in which it was held that the charges against Sri. Mony was dropped because he did not have any direct responsibility in respect of the palmolein since he was only an accountant and the petitioner having been directly responsible for the handling of the palmolein, he is liable. Accordingly, by Ext.P5 order it was directed thus: 9. In the circumstances, the appeal petition read as 3 rd paper above is dismissed. The amount of Rs.29,760/- (Rupees twenty nine thousand seven hundred and sixty only) will be recovered from the salary of Shri. Rajendran in 25 monthly instalments, the first being Rs.960/- (Rs. nine hundred and sixty) and the remaining 24 being Rs.1,200/- (Rs. one thousand and two hundred) each, The recovery will start from 4/2001”. Earlier in 1997, the petitioner was served with Ext.P7 show cause notice for recovery of 50% of Rs.72,372/- since after O.P.No.3885/03 3 exonerating Mony, the petitioner and the Unit Manager have to make good the loss caused to the Government. Exts.P5 and P7 orders are under challenge before me. 2. As far as Ext.P5 order is concerned, the challenge has to fail on the ground of delay and laches. Ext.P5 order was passed on 5.3.2001. Thereafter, Ext.P6 was issued on 24.7.02 for effecting recovery as per Ext.P5. Even then the petitioner did not take any steps to challenge Ext.P5. This original petition was filed only on 3.2.2003, almost two years after issuing Ext.P5. That being so the challenge against Ext.P5 should fail on account of unexplained delay and laches. Even otherwise, I am not inclined to entertain the challenge against Ext.P5, in so far as in an enquiry conducted for that purpose, it was found that the petitioner was actually handling the palmolein. Only minor penalty proceedings have been initiated against the petitioner. The petitioner has been given opportunity to controvert the enquiry report relied on for the purpose of imposing punishment of recovery of loss caused to the Government on the petitioner. Since the finding regarding liability of the petitioner is a question of fact, unless the finding is perverse I would not be justified in interfering with the O.P.No.3885/03 4 same, in exercise of my jurisdiction under Article 226 of the Constitution of India. There is no material produced before me to show that such finding is perverse. That being so, despite exoneration of Sri.Mony, I do not find any merit in the challenge against Ext.P5 order. Therefore, the challenge against Ext.P5 order is repelled. As far as Ext.P7 is concerned, that is dated 23.9.1997, since by subsequent Government Order Ext.P5 the petitioner has been directed to pay only Rs.24,760/- Ext.P7 cannot govern the issue. That being so only the amount as directed in Ext.P5 can be recovered from the petitioner. Original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.3885/03 5