IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 22ND AUGUST 2008 / 31ST SRAVANA 1930 WP(C).No. 25335 of 2008(N) -------------------------- PETITIONER: ------------ MADHUSUDANAN.M.P, ASST.TALUK SUPPLY OFFICER, SULTHAN BATHERY, WAYANAD DIST. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 4. THE REGIONAL MANAGER, CIVIL SUPPLIES CORPORATION, KOZHIKODE. 5. THE TALUK SUPPLY OFFICER, SULTHAN BATHERY, WAYANAD DISTRICT. BY ADV. SMT.MOLLY JACOB,SC,SUPPLYCO FOR R4 GP SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J ------------------- W.P.(C).25335/2008 -------------------- Dated this the 22nd day of August, 2008 JUDGMENT The petitioner is presently working as Assistant Taluk Supply Officer. While the petitioner was working as Upper Division Clerk, he was sent on deputation to the Kerala State Civil Supplies Corporation, hereinafter referred to as the “Corporation” for short. While he was serving in the Corporation, disciplinary proceedings were initiated against him. According to the petitioner, after enquiry, the disciplinary authority, who, at that point of time, was the Regional Manager of the Corporation, provisionally decided to impose on him the punishment of barring of two increments without cumulative effect and sent Ext.P2 letter dated 20.5.1995 to the Director of Civil Supplies seeking concurrence to impose on the petitioner the said punishment. Ext.P2 also contained a proposal to recover the sum of Rs.45,443/- being the pecuniary loss caused to the Corporation from the petitioner with interest. However, by Ext.P3 order passed on 5.10.1995, the Director of Civil Supplies proceeded to impose on the W.P.(C).25335/2008 2 petitioner the punishment of barring of two increments with cumulative effect and also recover the loss sustained by the Corporation, from the petitioner. The petitioner carried the matter in appeal. By Ext.P4 order passed on 23.12.1996, the Commissioner of Civil Supplies set aside Ext.P3 and remitted the matter back to the Director of Civil Supplies. Thereafter by Ext.P5 order passed on 19.11.1997, the Director of Civil Supplies again imposed on the petitioner the punishment of barring two increments with cumulative effect. The petitioner was also directed to remit the sum of Rs.16,160/- to the account of the Corporation within 30 days failing which it was directed that the said amount will be recovered from his pay and allowances in 20 equal monthly instalments together with interest at the rate of 18% per annum from 29.10.1994 till the amount is fully realized. The petitioner again filed an appeal before the Commissioner of Civil Supplies. By Ext.P6 order passed on 8.10.2002, the Commissioner of Civil Supplies while dismissing the appeal reduced the liability to Rs.10,151/-. The petitioner there upon invoked the power of the Government under Rule 34 of W.P.(C).25335/2008 3 the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, hereinafter referred to as the Rules for short.. By Ext.P7 order passed on 3.7.2006, the Government, concurred with the Director of Civil Supplies and the Commissioner of Civil Supplies. The Review Petition was accordingly rejected. Pursuant to Ext.P7, the petitioner remitted the sum of Rs.15,849/-. In this writ petition, the petitioner contends that at the time when disciplinary action was initiated against him, his services had been lend by the Department of Civil Supplies to the Corporation and therefore, in terms of Rule 19 of the Rules, only the borrowing authority namely the Corporation could have imposed on him the punishment. The petitioner contends that the disciplinary authority having the power and competence to impose on him any of the penalties set out in Rule 11 of the Rules, was the competent officer in the Corporation and therefore, the order imposing punishment and the appellate and revisional orders affirming it are orders passed without jurisdiction. The petitioner also relies on Ext.P1 Government Order in support of his contentions in that regard. W.P.(C).25335/2008 4 I have heard Sri.Elvin Peter P.J, the learned counsel appearing for the petitioner. It is not in dispute that disciplinary proceedings were initiated against the petitioner on 23.7.1993 at a time when the petitioner was working as Upper Division Clerk in the Corporation. An enquiry into the charges was held and the disciplinary authority provisionally decided to impose on the petitioner the punishment of barring of two increments without cumulative effect and also to recover from him the pecuniary loss caused to the Corporation. Thereafter, in terms of sub rule (2) of rule 19 of the Rules, the disciplinary authority sought the concurrence of the lending autority. Instead of granting concurrence, the lending authority by Ext.P3 order proceeded to impose on the petitioner the punishment of barring of two increments with cumulative effect and also to recover the loss caused to the Corporation. As noticed earlier, the petitioner carried the matter in appeal and by Ext.P4 order passed on 23.12.1996, Ext.P3 was set aside and the matter was remitted to the Director of Civil Supplies. Thereafter, Ext.P5 order W.P.(C).25335/2008 5 was passed by the Director of Civil Supplies and it was upheld by the Commissioner of Civil Supplies in Ext.P6 and by the Government in Ext.P7. The petitioner did not, at any time before Ext.P3 order was passed, question the competence of the Director of Civil Supplies to impose on him any punishment under the Rules.. In the appeal filed by the petitioner from Ext.P3 also, he did not question the competence of the Director of Civil Supplies to pass the order impugned in the appeal. Even after Ext.P3 was set aside, he did not question the competence of the Director of Civil Supplies to impose on him any punishment. In the appeal filed from Ext.P5 and in the revision petition filed from Exts.P5 and P6 also, the petitioner did not raise such a plea. The explanation offered by the petitioner for his omission to challenge the competence of the Director of Civil Supplies was that it was only after he received Ext.P2 pursuant to the request made in Ext.P9, that he came to know that the Regional Manager of the Corporation had only sought concurrence from the Director of Civil Supplies and that it was then and then only that he noticed want of competence on the part of the Director W.P.(C).25335/2008 6 to impose on him any punishment. From the materials on record, I find no merit in the said contention. Ext.P3 order passed by the Director of Civil Supplies as early as on 5.10.1995 in fact refers to Ext.P2 letter dated 20.5.1995 sent by the Regional Manager of the Corporation to the Director of Civil Supplies. The operative portion of Ext.P3 reads as follows:- Examined the case with the connected records and with reference to the explanation of the accused officer and the remarks of the Regional Manager. The Accused officer has not advanced any cogent and convincing arguments or adduced any piece of evidence to disprove any of the charges levelled against him. Hence I find him guilty of the charges levelled against him and order to bar his two annual increments with cumulative effect and to recover the loss sustained to the KSCS Corporation amounting Rs.54916/- (Fifty four thousand Nine hundred and sixteen only) plus interest @ 18% for Rs.45,443/- with effect from 29.10.94 to the date of realization of the entire amount from the pay and allowance of Sri.M.P.Madhusoodhanan in the Thirty six monthly instalments. W.P.(C).25335/2008 7 A reading of Ext.P3 indicates that specific reference was made to Ext.P2 therein. Ext.P2 is the letter read as item 3 in Ext.P3. The petitioner challenged Ext.P3 in appeal. That appeal was allowed and the matter was remitted back to the Director of Civil Supplies. Therefore, I find no merit in the contention of the petitioner that he was unaware of Ext.P2 till he received a copy thereof pursuant to his request in Ext.P9. The petitioner has no case that he was unaware of the provisions in Rule 19 of the Rules. He was being proceeded against under the said Rules. The petitioner, who took part in the disciplinary proceedings without demur and did not question the competence of the Director of Civil Supplies to impose on him any punishment cannot, at this point of time, be heard to contend that till he received Ext.P2 following his request in Ext.P9, he was unaware of lack of competence of the Director of Civil supplies. Ext.P3 order was passed on 5.10.1995. The petitioner who did not choose to question the competence of Director of Civil Supplies for the past nearly 13 years, cannot be permitted to raise W.P.(C).25335/2008 8 that question at this belated stage. Further the petitioner suffered the punishment and he has even remitted the pecuniary loss which was called upon to refund. The petitioner who submitted to the jurisdication of the Director of Civil Supplies cannot now turn round and contend that the said officer was not competent to pass Ext.P3 or Ext.P5. I am therefore, of the considered opinion that apart from the fact that the writ petition is highly belated, there is also no merit in the petitioner’s contention that he was unaware of Ext.P2 till he received a copy thereof following his request in Ext.P9. For the reasons stated above, I hold that there is no merit in the challenge to Exts.P3, P5, P6 and P7. The petitioner has a further grievance that though by Ext.P5, the Director of Civil Supplies had besides imposing on him the punishment of barring two increments without cumulative effect also deirected him to remit the sum of Rs.16160/- to the account of the Corporation in lump within thirty days and further directed that on failure to deposit the amount, it will W.P.(C).25335/2008 9 be recovered from his pay and allowances in 20 equal monthly instalments with interest at the rate of 18% per annum, by Ext.P6 appellate order, the liability was reduced to Rs.10,151/- and therefore, he is not liable to pay interest. The petitioner also has a further contention that as appeal and revision are, statutory remedies available to the petitioner, interest cannot run during the period when the appeal and the revision were pending. By Ext.P6, the appellate authority only reduced the quantum of the principal amount which the petitioner was held liable to refund. Ext.P6 specifically states that all other orders of the Director of Civil Supplies are upheld. That indicates that the Commissioner of Civil Supplies did not choose to set aside the direction regarding payment of interest. Ext.P7 also indicates that while the review petition was pending before the Government, the petitioner had remitted the sum of Rs.10151/- on 7.6.2004. Ext.P7 also discloses that the petitioner had contended that he is not bound to pay interest as he has already remitted the principal amount. In my opinion, there is no merit in the petitioner's contention that as he had carried the W.P.(C).25335/2008 10 matter in appeal and also filed a review petition challenging the order passed by the disciplinary authority he is not liable to pay interest during the period when the appeal and the review petition were pending. Levy of interest does not depend upon the right of the person aggrieved by the levy of interest to file an appeal or revision. Interest is levied for belated payment. So long as money is not refunded interest will accrue. Therefore the petitioner cannot contend that as he had a right to file an appeal and also a review petition before the Government, he is not liable to pay interest on the principal amount. The said contention is plainly untenable. For the reasons aforesaid, I hold that there is no merit in the writ petition. The writ petition accordingly fails and is dismissed in limine. P.N.RAVINDRAN, Judge mrcs