IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 11TH NOVEMBER 2008 / 20TH KARTHIKA 1930 OP.No. 7464 of 2002(L) ------- ---------------------- PETITIONERS: ------------------------ 1. N.RAVINDRAKUMAR, FORMERLY COMPANY SECRETARY, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., RESIDING AT FLAT NO.102, BLOCK III, EASLAND ENCLAVE, ELAMKULAM, COCHIN -20. 2. ADDL. 2ND PETITIONER - RADHA NARAYANAN, AGED 71 YEARS, W/O LATE K. NARAYANAN, RESIDING AT NO.3 (OLD NO.2) Vth STREET, DR. SUBBURAYA NAGARM KODAMBAKKAM, CHENNAI - 620024 IMPLEADED AS PER ORDER IN I.ANO. 7577 OF 2007 DATED 11.11.2008. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENTS: ------------------------ 1. KERALA STATE CIVIL SUPPLIES CORPORATION LTD., P.B.NO.2030, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, COCHIN 682020, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR 2. THE CHAIRMAN AND MANAGING DIRECTOR, KERALA STATE CIVIL SUPPLIES CORPORATION LTD., P.NO.3020, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, COCHIN 682 020. ADV. SRI.V.J.MATHEW FOR R1,2 SRI.P.P.RAJESH FOR R1,2 SRI.BIJISH B.TOM FOR R1,2 SMT.TISVY VINCENT FOR R1,2 SRI.P.V.ANILKUMAR FOR R1,2 SRI.SYBI KURUVILLA VARGHESE FOR R1,2 SRI.V.J.MATHEW, SC CIVIL SUPPLIES CORPN FOR R1 & R2 SRI.MILLU DANDAPANI FOR R1 & 2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 7464 of 2002(L) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - TRUE COPY OF LETTER NO. 01/12496/85 DATED 31.10.1985 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P2(a) - TRUE COPY OF LETTER DATED 7.7.1989 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P2(b) - TRUE COPY OF LETTER DATED 3.10.1989 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P2 - TRUE COPY OF LETTER NO.D10-27579/97/LD IS DATED 30.12.1997 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P3 - TRUE COPY OF MEMO OF CHARGES ISSUED TO THE PETITIONER VIDE NO.D1- 9833/2000 DATED 6.6.2000 ISSUED BY THE 2ND RESPONDENT. EXT.P4 - TRUE COPY OF REPLY TO THE MEMO OF CHARGES SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 10.7.2000. EXT.P5 - TRUE COPY OF NOTE ISSUED BY THE 2ND RESPONDENT DATED 27.3.2000 TO THE MANAGER (EDP) AND COPY TO THE PETITIONER. EXT.P6 - TRUE COPY OF REPORT SUBMITTED BY THE 2ND RESPONDENT ON MISAPPROPRIATION OF LEVY SUGAR. EXT.P7 - TRUE COPY OF ENQUIRY REPORT DATED 20.3.2001 SUBMITTED BY THE ENQUIRY OFFICER AGAINST THE PETITIONER AND OTHERS. EXT.P8 - TRUE COPY OF SHOW CAUSE NOTICE NO.E18.9833/2000 DATED 17.8.2001 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P9 - TRUE COPY OF DETAILED EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 15.11.2001. EXT.P10 - TRUE COPY OF HEARING NOTE SUBMITTED BY THE PETITIONER BEFORE THE BOARD OF DIRECTORS OF THE KERALA STATE CIVIL SUPPLIES CORPORATION DATED 21.12.2001. EXT.P11 - TRUE COPY OF ORDER NO. E18-9833/2000 DATED 16.2.2002 ISSUED BY THE 2ND RESPONDENT. /TRUE COPY/ PA TO JUDGE rhs S.SIRI JAGAN, J ================== O.P.No.7464 of 2002 ================== Dated this the 11th day of November, 2008. J U D G M E N T The 1st petitioner filed this original petition challenging the disciplinary proceedings against him. During the pendency of the original petition, he died and his mother as the legal heir has come on record as 2nd petitioner to prosecute the original petition. 2. The 1st petitioner claimed that as a company secretary to the Kerala State Civil Supplies Corporation Ltd., he was performing his duties conscientiously and with due diligence to his utmost ability. On the basis of Ext.P2, he submitted that his application for the post of Company Secretary in the Ship Yard, Cochin was refused to be forwarded by the then Managing Director of Civil Supplies Corporation, on the ground that his service was too valuable to be spared. While so disciplinary proceedings were initiated against him alleging supervisory lapses on his part in the matter of lifting of levy sugar. Ext.P3 memo of charges was issued to him. An enquiry was conducted. The petitioner was found guilty of all but one of the 6 charges in the charge memo, based on which the O.P.No.7464 of 2002 - 2 - petitioner was imposed with the punishment of removal from service. That order is under challenge before me. The 1st petitioner contended that he was innocent of the charges and the incidents leading to the disciplinary proceedings occurred on account of the infrastructure deficiencies of the civil supplies corporation which was evident from the notes of the Managing Director himself, namely Exts.P5 and P6. He further submitted that the enquiry itself was vitiated for violation of principles of natural justice in so far as the enquiry officer examined defence witnesses, even before the management witnesses were examined. According to him, the management witnesses were used to controvert the evidence adduced by the witnesses of the petitioner which amounts to violation of principles of natural justice. The 1st petitioner submitted that it was for the management to prove his guilt in the first instance and only after they had adduced sufficient evidence in support of the charges, the petitioner could have been required to adduce evidence in defence. On account of the above irregularity, the entire disciplinary proceedings were vitiated, was the contention raised. The 1st petitioner also submitted that there was sufficient material available in the enquiry itself to show that the petitioner was over burdened with work and O.P.No.7464 of 2002 - 3 - there were infrastructural deficiencies leading to the situation. Even assuming that certain lapses occurred on the part of the 1st petitioner, considering the circumstances, it could not have been be held that the 1st petitioner was actually guilty of the alleged misconduct was the submission made. 3. A counter affidavit has been filed by the 2nd respondent controverting the contentions raised. According to the 2nd respondent, there was sufficient evidence on record to prove the guilt of the 1st petitioner. Although it is admitted in the counter affidavit that defence witnesses were examined before examining management witnesses, he would submit that the same does not amount to violation of principles of natural justice in so far as the 1st petitioner had not objected to the procedure adopted. The contention is that it is for the convenience of taking evidence that the defence witnesses were examined first. By that procedure the 1st petitioner was not in any way prejudiced is the submission made. 3. I have considered the rival contentions in detail. 4. In the counter affidavit filed by the 2nd respondent, it is specifically admitted that defence witnesses were examined before the examination of prosecution witnesses were concluded, taking into consideration the convenience of the O.P.No.7464 of 2002 - 4 - witnesses. The only contention raised is that the 1st petitioner did not raise any objection to such examination and no prejudice was caused to the 1st petitioner in that regard. I am not inclined to accept that argument. It is settled law that in disciplinary proceedings the primary burden of proving guilt of the delinquent is on the management. It is only after sufficient evidence is adduced in support of the charges, the delinquent can be asked to adduce evidence unless the consent of the delinquent is obtained for the same. Here the 2nd respondent has no case that the enquiry officer had obtained consent of the 1st petitioner for the procedure adopted by the enquiry officer. I am not convinced by the argument of the counsel for the 2nd respondent that the said procedure did not prejudice the 1st petitioner. In fact by asking the 1st petitioner to adduce evidence before the examination of management witnesses was concluded, the management got an opportunity to plug the loop holes in their evidence by knowing the defence evidence of the petitioner in advance. That certainly prejudiced the workman in his defence. 5. The charges leveled against the 1st petitioner were as follows: “1. That you Shri. N. Ravindra Kumar, while holding the post of Additional General Manager in charge of the O.P.No.7464 of 2002 - 5 - Sugar Section, have failed to effectively monitor the delivery of sugar purchased by the Corporation leading to the award of transportation contracts to Transport Contractors who had defaulted in works previously entrusted to them. 2. That you Shri. N. Ravindra Kumar, while holding the post of Additional General Manager in charge of the Sugar Section, have failed to bring to the attention of Superior Officers the failure of the Transport Contractor in spite of receiving information from the Finance Section about the default of a contractor in delivering sugar, enabling him to get more orders from the Corporation which caused avoidable loss to the Corporation. 3. That you Shri. N. Ravindra Kumar, while holding the post of Additional General Manager in charge of the Sugar Section have failed in ensuring adherence to the terms and conditions of the Sugar transport tender which led to awarding of work order to the Contractor who did not have a valid Bank guarantee at the time of awarding of the contract. 4. That you Shri. N. Ravindara Kumar, while holding the post of Additional General Manager in charge of the Sugar Section have failed in discharging your duties as a Member of the Purchase Committee effectively by not pointing out the inappropriateness of awarding further orders to a contractor in default of works previously entrusted to him. 5. That you Shri. N. Ravindra Kumar, while holding the post of Additional General Manager in charge of the Sugar Section have failed to effectively supervise the working of the Sugar Section leading to ineffective discharge of duties by your subordinates which cumulatively led to the tranporting contractors causing avoidable loss to the Corporation. 6. That you Shri. N. Ravindra Kumar, while holding the post of Additional General Manager in charge of the Sugar Section have failed to scrutinise the applications by intending transport contractors carefully, enabling a new contractor who had no previous experience in this line of business or a genuine background in transportation to secure contracts, which cause avoidable loss to the Corporation.” Out of the same, the 1st petitioner had been found guilty of all O.P.No.7464 of 2002 - 6 - charges except charge No. 3. All those charges related to supervisory lapses on the part of the 1st petitioner. There is no evidence of proceedings against the primary culprits who benefitted from the alleged supervisory lapses of the 1st petitioner. There is not even an allegation that the 1st petitioner did it purposefully for personal gains. At some point of time as evidenced by Ext.P2, the then Managing Director considered the 1st petitioner's service so valuable to the management that they could not allow him to apply for alternate employment. Exts.P5 and P6 notes from the then Managing Director would certainly show that the infrastructural deficiency had in fact contributed to the imbroglio, which led to the disciplinary proceedings against and consequent dismissal of the 1st petitioner. There is also some evidence available to the effect that the 1st petitioner was severely overburdened with work. It is also submitted that on account of loss of job, the 1st petitioner's wife left him and obtained a divorce. Soon thereafter he died also. Taking into account all the above circumstances, I feel that justice would be met if respondents are directed to treat the 1st petitioner as having retired from service, as on the date of dismissal from service, with consequential retirement benefits to the legal O.P.No.7464 of 2002 - 7 - heirs. Ordered accordingly. The 2nd respondent shall pass consequential orders in the matter and disburse the terminal benefits due to the 2nd petitioner as legal heir of the deceased 1st petitioner as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The original petition is disposed of as above. S.SIRI JAGAN, JUDGE rhs