IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 5TH JUNE 2009 / 15TH JYAISHTA 1931 WP(C).No. 19413 of 2008(J) ------------------------------- PETITIONER: -------------- G.JAYANANDAN, PRINCIPAL (RETIRED), DISTRICT INSTITUTE FOR EDUCATION AND TRAINING (DIET), IDUKKI, AMBILI, SOBHI THEATRE LANE, HOSPITAL JUNCTION, PARASSALA P.O., THIRUVANANTHAPURAM. BY MS.I.SHEELA DEVI, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE D.D.E., MARKET JUNCTION, THIRUVALLA. 4. TEXT BOOK OFFICER, OFFICE OF THE TEXT BOOK, PADMAVILASAM ROAD, PAZHAVANGADI, EAST FORT, THIRUVANANTHAPURAM. 5. J.RAJAN, SENIOR LECTURER (RETIRED), DIET, THIRUVALLA, KAVIL VADAKKETHIL, MUTTOM, THUMPAMON P.O., PATHANAMTHITTA. 6. DR. MANIAMMA, PRINCIPAL, DIET, KOTTARAKKARA. BY MR.MUHAMOOD T.T., GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19413/2008 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF COMMUNICATION No.D.O.No.D2-339.94 DTD. 3.6.94 ISSUED BY THE PETITIONER TO R3. EXT. P2 : COPY OF THE COMMUNICATION No.D2-2652/94 DTD. 7.6.94 ISSUED BY R2 TO THE R3. EXT. P3 : COPY OF COMMUNICATION No.D2-339/94 DTD. 25.10.94 FORWARDED BY THE PETITIONER TO THE R3. EXT. P4 : COPY OF COMMUNICATION No.D3-22652/94/TBO DTD. 9.11.94 ISSUED BY THE R4 TO THE R3. EXT. P5 : COPY OF THE REPORT No.C5.12720/94 DTD. 19.12.94 SUBMITTED BY THE R3 TO THE R2. EXT. P6 : COPY OF LETTER No.D1-259/95 DTD. 12.6.95 ISSUED BY THE PETITIONER BEFORE R4. EXT. P7 : COPY OF PROCEEDINGS OF R2 DTD. 19.10.1996 ISSUED TO THE PETITIONER. EXT. P8 : COPY OF REPORT OF HAND OVER CHARGE TO R5 BY THE PETITIONER. EXT. P9 : COPY OF AUDIT OBJECTION DTD. 30.9.98 ISSUED TO THE PETITIONER. EXT. P10 : COPY OF REPLY SUBMITTED BY THE PETITIONER BEFORE THE R2. EXT. P11 : COPY OF COMMUNICATION No.AW(b5)61132/02 DTD. 16.12.02 ISSUED BY R2 TO THE PETITIONER. EXT. P12 : COPY OF WRITTEN STATEMENT DTD. 26.12.02 SUBMITTED BY THE PETITIONER BEFORE R2. EXT. P13 : COPY OF COMMUNICATION No.D1/244/02/TBO DTD. 24.9.04 ISSUED BY R4 TO THE PRINCIPAL, DIET, THIRUVALLA. EXT. P14 : COPY OF COMMUNICATION No.D2/363/2000 DTD. 4.10.04 TO R2 BY THE PRINCIPAL, DIET, THIRUVALLA. EXT. P15 : COPY OF COMMUNICATION No.D1/133/04/TBO DTD. 18.12.06 ISSUED BY R4 TO THE PETITIONER. EXT. P16 : COPY OF COVERING LETTER No.D1/133/04/TBO/K.DIS DTD.9.10.07 ISSUED BY R4 TO THE PETITIONER. WP(C).No. 19413/2008 EXT. P17 : COPY OF PROCEEDINGS No.AW(b)5/61132/02/D.P.I/K.DIS DTD. 9.8.07 ISSUED BY THE R2 TO THE PETITIONER. EXT. P18 : COPY OF REPLY DTD. 14.11.07 SUBMITTED BY THE PETITIONER BEFORE R2. EXT. P19 : COPY OF COMMUNICATION No.AW(B5) 78672/07/DPI DTD. 28.1.08 ISSUED BY the SENIOR FINANCE OFFICER TO THE PETITIONER. EXT. P20 : COPY OF LETTER SUBMITTED WITH ALL DOCUMENTS ON 6.2.08 BEFORE R2 BY THE PETITIONER. EXT. P21 : COPY OF COMMUNICATION No.AW(B5)78672/07/DPI DTD. 14.2.2008 ISSUED BY R2 TO THE PETITIONER. EXT. P22 : COPY OF LETTER DETAILING the COPIES OF THE FILED HANDED OVER TO THE SENIOR FINANCE OFFICER BY THE PETITIONER ON 25.2.08. EXT. P23 : COPY OF LETTER DTD. 12.6.08 SUBMITTED BEFORE R2 BY THE PETITIONER. EXT. P24 : COPY OF ORDER No.AW(B5)/78672/07/DPI DTD. 10.6.08 ISSUED BY THE SENIOR FINANCE OFFICER ATTACHED TO R2 TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.19413 OF 2008 --------------------------------------- Dated this the 5th day of June, 2009. J U D G M E N T Aggrieved by Exhibit P24 order by which a liability of Rs.36,829.50/- has been fixed against the petitioner to be recovered from his D.C.R.G, this writ petition has been filed. The circumstances leading to the dispute are the following: 2. The petitioner herein retired as Principal of the District Institute for Education and Training (DIET), Idukki on 31.03.2006. He was the Principal of DIET, Thiruvalla from 02.05.1994. At that time, even though charge was handed over to him, stock verification was not conducted simultaneously. There was a manufacturing unit of Exercise Books and it was under the direct control of the Principal in charge of the DIET, Kottarakkara. Therefore, on the joining day, the stock verification was not conducted since the Principal, Kottarakkara was not available. W.P.(C) No.19413/08 2 3. When the physical verification of the books was done, it was found that nearly 5000 books of 192 pages were damaged due to the attack from white ants, rats and other insects. The petitioner reported this fact to respondents 2, 3 and 4 as per Exhibit P1. The 2nd respondent-Director of Public Instruction, by Exhibit P2, directed the 3rd respondent to conduct a spot assessment in the matter. Nothing was done and the petitioner thereafter submitted a request on 22.09.1994 to act on Exhibit P2. Reminders were being sent also. 4. The petitioner then requested as per Exhibit P3 to write off the damaged books. The Director of Public Instruction followed it by directing the Deputy Director of Education to conduct a spot inspection. Accordingly, the 3rd respondent conducted a spot inspection and submitted Exhibit P5 report. 5. In Exhibit P5, the 3rd respondent requested the Director of Public Instruction to sanction the request made by the petitioner to sell 3900 slightly damaged books at a reduced price, after noticing that another set of 5,000 books are in completely damaged condition. It appears that the 2nd respondent has not taken any further action in the matter. Subsequently, on W.P.(C) No.19413/08 3 19.10.1996 the petitioner was deputed to the DPEP, Thiruvananthapuram and was directed to hand over the charge to the 5th respondent as per Exhibit P7. Charges were handed over as per Exhibit P8 along with the stock, including the damaged ones. 6. Exhibit P9 is the audit objection which was communicated while the petitioner was working at Thiruvananthapuram. The objection raised by the audit was only that exercise books of 192 pages were removed without obtaining the sanction of the competent authority. The petitioner filed Exhibit P10 explanation. Again he was directed to furnish a written statement on the audit objection by the 2nd respondent, which was undertaken by the petitioner as per Exhibit P12. It appears that various communications followed. It is seen from the communications that the allegation against the petitioner was that he has removed from the stock 8565 exercise books of 192 pages without obtaining sanction from the competent authority. Accordingly, a liability to the tune of Rs.36,829.50/- was proposed to be fixed against the petitioner. W.P.(C) No.19413/08 4 7. The Senior Finance Officer attached to the 2nd respondent conducted a hearing on 06.02.2008 and the petitioner participated in the same, and all documents were submitted by the petitioner as per Exhibit P20. It appears that a spot verification was subsequently conducted and in which the petitioner had also participated. Ultimately, Exhibit P24 order was passed wherein the liability has been fixed. 8. In Exhibit P24, the view taken is that the petitioner had removed 8565 Nos. of 192 pages Note Books unauthorizedly from the stock costing Rs.36,829.50/-. Apparently, the only objection is that the petitioner had removed it without getting sanction. In the counter affidavit, the stand taken is that the petitioner had removed the stock unauthorizedly, without obtaining sanction from the competent authority. 9. Heard the learned counsel for the petitioner and the learned Government Pleader. 10. In Exhibit P9, the objection appears to be that exercise books of 192 pages were removed from the accounts of the manufacturing unit without obtaining sanction from the competent authority. The question is whether the said objection W.P.(C) No.19413/08 5 could have been raised against the petitioner in the light of the various actions taken by him. 11. It is clear from Exhibits P1 to P5 that the petitioner had taken action at the right point of time to report the matter to the competent authority for sanction. In fact, in Exhibit P1, he had requested that necessary urgent steps may be taken to verify the present stock position. It was also reported that the delay will cause heavy loss to the Government fund. 12. The matter was communicated by the Director of Public Instruction to the Deputy Director of Education by Exhibit P2 with a direction to conduct a spot verification. Exhibit P3 is the subsequent report forwarded by the petitioner to the Deputy Director of Education, stating all details of the stock including that of the damaged ones. Only after Exhibit P4 direction was issued to the Deputy Director of Education by the Director of Public Instruction, which is five months after Exhibit P2, a spot verification was done by him on 21.11.1994. In between petitioner had sent various communications urging immediate action. By Exhibit P5, the real position was reported by the Deputy Director of Education to the Director of Public Instruction. W.P.(C) No.19413/08 6 Why that state of affairs was allowed to continue without further action is not clear from the records. The petitioner thereafter handed over the charge of the unit as he was transferred to Thiruvananthapruam. 13. The fact that so many books were damaged is clear from Exhibit P5 due to attack of white ants and the like. The explanations offered by the petitioner in Exhibit P10 onwards will also show that he had reported the matter at the right point of time and was awaiting sanction. Going by Exhibit P8, the petitioner had handed over all the books including the damaged books to the successor in office. Still the audit objection is pursued to the effect that loss has been caused by the petitioner. It is not a case where the books which were saleable were sold and the money was not accounted. 14. Going by the communications, it is clear that the books were damaged by white ants, cockroaches etc. Therefore, they were not saleable commodities at all. This position is amply clear from the report Exhibit P5 sent by the Deputy Director after spot verification. A reading of it shows that apart from 5000 Nos. of fully damaged books, there was another set of 3206 slightly W.P.(C) No.19413/08 7 damaged books. The certificate attached along with Exhibit P5 shows that it was not due to the negligence on the part of the custodian of the books. There is no case for the respondents that if these items were sold, the amount could have been recouped. Therefore, the question of causing any loss to the Government fund does not arise in view of the fact that the commodities were not at all saleable. The administrative delay, if any, on the part of the official respondents to grant sanction cannot go against the petitioner since actually he is not responsible for the real loss. The actual damage to the books was caused by outside forces like white ants and cockroaches. The petitioner cannot be faulted for not taking any action for preservation also. All the communications show that the books were in damaged condition and were not saleable. There is no question of the same being sold also. He had, in fact, intimated the precarious condition of the building where the books are stocked, going by Exhibit P3. 15. In that view of the matter, the absence of technical sanction granted to the petitioner before removing the damaged stock within the same premises cannot be said to be an illegal W.P.(C) No.19413/08 8 one requiring him to recoup the entire loss. The loss caused by an employee by any willful negligence or other omissions etc. could be fastened as liability. Here there is no allegation of any negligence on the part of the petitioner in causing damages to the articles concerned. The concerned authorities did not take any action even after submission of Exhibit P5 for which he cannot be made responsible. 16. In that view of the matter, the action taken to fasten the liability on the petitioner is not justified. Even in the audit objection they have only pointed out for want of sanction. The matter was pending with respondents 2 and 3 and in spite of various communications Exhibits P2 to P5, nothing further was done. It was only a normal administrative routine to grant sanction. But, any delay on that matter ought not to have been taken against the petitioner to fasten the liability on him. There is no dispute that the books were in a damaged condition. Therefore, the view taken in Exhibit P24 that he had removed 8565 books unauthorizedly cannot at all be supported. He is only made a scapegoat. His case is fully supported by Exhibit P5 itself as well as the records produced by him during the hearing. W.P.(C) No.19413/08 9 Hence this writ petition is allowed. Exhibit P24 is quashed. Since the amount of liability has already been adjusted against the pensionary claims of the petitioner, steps will be taken to release the same within a period of two months from the date of receipt of a copy of this judgment. T.R. RAMACHANDRAN NAIR JUDGE smp