IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 13150 of 2007(M) -------------------------- PETITIONER: --------------- E.DAMODARAN,(RETD.FIRST GRADE LIBRARIAN) KOZHIKODE LOCAL LIBRARY AUTHORITY, KOZHIKODE KUNNUMMAL HOUSE, KOLLAM, KOYILANDY, KOZHIKODE. BY ADVS. SRI.R.PARTHASARATHY SRI.A.RADHAKRISHNAN NAIR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY, KERALA STATE LIBRARY COUNCIL, PALAYAM, THIRUVANANTHAPURAM. 3. THE SECRETARY, DISTRICT LIBRARY COUNCIL, KOZHIKODE. 4. THE ACCOUNT OFFICER, KERALA STATE LIBRARY COUNCIL, KOZHIKODE. R1 BY GOVERNMENT PLEADER R2 BY ADV. SRI.P.V.SURENDRANATH, SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2011 ALONG WITH WPC NO. 12891 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13150/ 2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF ORDER OF THE 2ND RESPONDENT FIXING LIABILITY OF THE PETITIONER TEMPORARILY DATED 09.02.2002. EXT.P2: COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DATED 21.01.2002. EXT.P3: COPY OF THE ORDER DATED 3.01.2003 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE ORDER DATED 12.08.2003 ISSUED BY THE 1ST RESPONDNET. EXT.P5: COPY OF THE ORDER PASSED BY THE 2ND RESPONDNET DATED 09.01.2004. EXT.P6: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC. 5775/2004 DATED 5.04.2006. EXT.P7: COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 03.10.2006. EXT.P8: COPY OF THE ORDER DATED 10.4.2000 ISSUED BY THE SECRETARY, DIST. LIBRARY COUNCIL EXT.P9: COPY OF THE WORK ALLOTMENT PROCEEDINGS OF CHAIRMAN OF LOCAL LIBRARY AUTHORITY, KOZHIKODE DATED 2.9.1985. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE smvd S. SIRI JAGAN, J ================== W.P.(C).No. 13150 of 2007 ================== Dated this the 16th day of June, 2011 JUDGMENT The petitioner was a First Grade Librarian of the Kozhikode Local Library Authority. He retired from service on 31.08.2000. He took charge as First Grade Librarian of the library on 17.08.1985. At the time of taking charge, there was no stock verification. Towards the end of his tenure, the library authority decided to take stock of the entire assets of the library including the books thereof. After the retirement of the petitioner, the retirement benefits due to the petitoner were not disbursed on the ground that value of missing books have to be recovered from the petitioner. Originally by Ext.P1, the liability of Rs.92,966.44 was fixed as the liability being value of 21,395 books, which were found to have been lost during the tenure of the petitoner. The petitoner objected to the same by Ext.P2. Thereafter, by Ext.P3 the liability was fixed as Rs.1,39,494.66 stated to W.P.(C).No. 13150 of 2007 -: 2 :- be 1 ½ times the value of the books lost. Challenging the same, the petitioner approached this court by filing O.P.6596/2002, in which this court directed the Government of Kerala to consider the issue. Thereafter, the Government considered the matter and by Ext.P4 order directed the Secretary of the Kerala State Library Council to re-consider the matter and re-assess the liability of the petitioner, taking into consideration all the points mentioned in Ext.P4. Thereafter Ext.P5 order, was passed by the Secretary of the Kerala State Library Council confirming Ext.P3. The petitioner again approached this court by filing W.P.(C) 5775/2004, in which this court quashed Ext.P5 order, set aside Exts.P3 and P5 orders herein and remanded the matter for fresh consideration in accordance with the observations made in that judgment. Again the Secretary passed Ext.P7 order, but this time fixing the liability as Rs.1,40,264/-, directing recovery of the same from the petitioner's DCRG. The petitioner has filed this writ petition seeking the following W.P.(C).No. 13150 of 2007 -: 3 :- relief:- i) to call for the records and; ii) issue a writ of certiorari or any other appropriate writ order or direction directing the original of Exhibit P7 issued by the 2nd respondent. Iii) issue a writ of mandamus or any other appropriate writ order or direction directing the 2nd respondent to disburse the DCRG of the petitioner withheld, with interest at 12% within a specified time period. 2. The contention of the petitoner is that the library was started in the year 1952 and thereafter there was no verification of the stock of the books in the library at any time before 2000. There was no stock taking in 1985, when the petitoner took charge as First Grade Librarian of the library. According to the petitioner without a stock taking prior to the taking charge of the petitoner and ascertaining the book lost, during the tenure of the petitioner, the petitioner cannot be made liable for the deficit in stock. He would also contend that he was not in charge of the books at all in so far as, as per the Ext. P9 work allotment, petitioner has not been given the custody of the books at all. W.P.(C).No. 13150 of 2007 -: 4 :- According to him as First Grade Librarian of the Library Council, he has numerous other duties and functions. He could not be always be in the library to safeguard the books and it was the other staff of the library who had the responsibility to make sure that the books are not lost. He would further contend that three First Grade Librarians had retired before the petitioner took charge. There was no stock verification during their retirement and they were not made liable for any loss of books. On these grounds the petitioner would contend that he cannot be saddled with liability for the alleged loss of books. 3. A counter affidavit has been filed day before yesterday by the 2nd respondent, wherein they have sought to justify the fixation of liability on the petitoner. According to them, petitioner was in over charge of the library and it was his duty to see that the books in the library are safeguarded. They would contend that the stock verification started prior to the petitioner's retirement on 10.01.2000 W.P.(C).No. 13150 of 2007 -: 5 :- and the petitioner did not co-operate with the stock taking. According to them out of the total missing books, 9243 books have been lost before petitioner took charge and 21935 books were found to have been lost during the tenure of the petitioner. They would contend that the present market value of the books would be several times the face value of the books and therefore it was decided to realise 1.5 times of the face value of books to compensate the loss suffered by the library on account of the loss of the books. 4. I have considered the rival contentions in detail. 5. This court has, in Ext.P6 judgment considered the question as to whether there was any stock verification in the library prior to 2000. This court categorically found that there has been no stock verification since the establishment of the District Central Library in 1952 despite which the petitoner has been made liable for the entire lost books. I am at a complete loss to understand how without a stock verification at the time the petitioner took charge how W.P.(C).No. 13150 of 2007 -: 6 :- anybody can with any amount of certainty the petitioner alone with liability for the entire lost stock. The learned counsel for the Library Council would argue that out of the total books found missing, 9243 books were found to have been lost before the petitoner took charge and 21,935 books have been found lost during his tenure. It is not explained as to how they have arrived at this conclusion. I could have very well understood, if the respondents stated that the 21,935 books found missing were actually purchased after petitioner took charge and therefore the petitioner is liable for the value of those missing books. But there is no such logical explanation in the counter affidavit. So I am of opinion that the liability, if at all, cannot be fixed with any amount of certainty whatsoever on the petitioner alone. In this connection no explanation is offered why the value of 9243 missing books have not been realised from the persons who were responsible for the same. 6. It is not even certain as to what were the duties and W.P.(C).No. 13150 of 2007 -: 7 :- functions of the petitioner. Ext.P9 is stated to be the order of allocation of work to the employees of the library including the petitioner. Therein it is not made clear as who is the custodian of the books in the library. The reasoning stated in the counter affidavit and the impugned orders is that the petitioner has the overall charge of the library and therefore he is liable. If that be so, others who are also responsible to see that the petitoner carries out his duties and functions properly and those who were in the actual custody of the books are are also equally liable for the same. The Secretary of the Council who is the superior authority of the petitioner is also equally liable like the petitioner. It is the duty of the Secretary of the Council to see that all the officers and staff of the library including the petitioner performs their duties and functions properly. It was the duty of the Secretary to see that periodically verification of the stock of the books is taken and the liability of the missing books fixed on the persons responsible. For not W.P.(C).No. 13150 of 2007 -: 8 :- having performed that duty, the Secretary is also equally liable, going by his own reasoning for making the petitioner liable. 7. In fact in Ext.P9 Order of the Government which nobody has chosen to challenge yet, it is stated thus: It is seen that Sri. Damodaran was Librarian in Kozhikode Local Library Authority. By the notification dated 19.12.1998 all properties movable and immovable and all assets and liabilities of the Local Library Authorities along with their services and things connected therewith were transferred to and vested with the District Library Council of the said District and as such the Kozhikode Local Library Authority where Sri. Damodaran was employed was transferred to the Kozhikode District Library Council. From then onwards he was an employee of the Kozhikode District Library Council. There is no dispute that KSLC has the authority to decide on the service conditions of the staff of the Council and the District Library has the authority to decide on the liability of the employees of the library. Their authority on the issue under consideration is not questioned. But the authority or the criteria for fixing liability as 1 ½ times of book value for missing books has not been specified. No documents prescribing the norms for fixing liability of the missing books as above has been produced. Further the stock verification was done and liability was fixed after about sixteen months of retirement of Sri. E. Damodaran and as such Sri. E. Damodaran has been made accountable for the books if any lost/missing during these sixteen months also. The Librarian who took charge from Sri. E. Damodaran is also W.P.(C).No. 13150 of 2007 -: 9 :- responsible for stock verification while taking charge, Reporting of missing books after sixteen months of taking charge and fixing liability on that basis is not just and the proper. He should have verified the stock and furnished the report then and there and liability could have been fixed on that basis. Further the responsibility for the safe custody of the books could have been shared equally among all the library staff and the liability of the missing books could have been recovered from all the library staff in equal proportions as is done in the case of common pool librarians of the state working hours of the Library is from 8 A.M. to 8 P.M. Sri. Damodaran was working from 10 A.M. To 5 P.M. Though Sri. Damodaran cannot be absolved of the responsibility it is a fact the library was managed by other staff. As such there is equal responsibility for all the library staff. There is provision to write off in a year 0-5% of the books in circulation in the case of common pool Librarians of the state. If all the library staff had shared equal responsibility they would have been on the safe custody of the books and would be particular in stock verification then and there. 8. In Ext. P6 judgment, this Court found as follows:- “I find force in the submissions of Sri. Muraleedharan that the action of the 2nd respondent in imposing the liability wholly on the petitioner for the books lost during his tenure is illegal and unjustified. There has been no stock verification since the establishment of District Central Library in 1952 and the petitioner has been made liable for the entire lost books. Ext. P4 Work allotment proceedings will show that the petitioner had been given the duty of Superintendent of the office Administration of Local Library Authority and the duty of General Supervision of the Central Library. The specific W.P.(C).No. 13150 of 2007 -: 10 :- duty of taking action on belated return of books and recovery and detection is missing books was cast on another staff of the library. Neither that person nor other staff of the library who are involved in the day today delivery and acceptance of books in the library, have been made liable. The petitioner alone has been made liable for the reason that the petitioner had supervisory duties. The nature of the various duties which had been entrusted with the petitioner during his tenure in office necessitated the petitioner to be away from the library and prevented him from having day to day supervision of the functioning of the library. It should be noticed that he had a duty of supervising various libraries under LLA situated in Districts of Kozhikode, Malappuram and Wyanad. Petitioner had the additional charge of Superintendent of Local Library Authority also. His case is that he had to visit Local Libraries for the purpose of collecting library cess from them and was compelled to visit Ernakulam in correction with litigations by and against the Library Authority is not in dispute. The circumstances that the working hours of the District Central Library is between 8 AM and 8 PM while his working hours as First Grade Librarian is only from 10 AM to 5 PM will show that library remains open at least for 5 hours every day during which time the First Grade Librarian is not expected to be present. The reasons stated by the petitioner at Clause F(f), G and H of Paragraph 2 of his writ petition also cannot be said to be without any merit and the defenses of the Library Authority to these grounds raised by the petitioner betrays an unrealistic approach. Above all Ext.P10 order has been passed without hearing to the petitioner and I am of the view that Ext.P5 and P10 are liable to be quashed and the State Library Council is to be directed to have a reconsideration of the issue in the light of all the grounds raised in writ petition No.5775/04 since there is every likelihood that on a proper re- W.P.(C).No. 13150 of 2007 -: 11 :- consideration the liability of the petitioner will become reduced considerably. I am inclined to direct the disbursement of 1/3rd of the amounts withheld as per Ext.P10 out of the petitioner's DCRG(1/3rd of Rs.1,39,540/-) to the petitioner immediately. On carefully considering the contentions of the Library Council and the submissions of Sri. Surendranath is appears to me that what worries the Kerala State Library Council is their present financial crunch and the luke warm attitude of the Government in the matter of releasing eligible grants to them. The grounds raised by the Kerala State Library Council in the writ petition and through their reply affidavit are to certain extent legitimate and it is only appropriate that the Government examines them and takes a decision at the earliest. It seems that Exts.P4(a), P4(b) and P4(c) submitted by the Library Council on 24.06.00, 16.08.00, 15.05.01 and 8.10.01 have not received deserving attention at the hands of the Government. I am inclined to permit the petitioner-Library Council to submit a comprehensive representation before the Government highlighting the grounds raised in the writ petition and in the reply affidavit within 3 weeks of them getting a copy of this judgment and once the Government receives such a representation Government will take up the same, hear the Council and take a correct and just decision within three months”. 9. Going by those findings which have become final, it is clear that petitioner alone cannot be made liable for the loss of books. All the persons who were in charge during the tenure of the petitioner, superior to the petitioner and inferior to the petitioner are equally liable. But the Secretary W.P.(C).No. 13150 of 2007 -: 12 :- who himself is also liable for the loss has chosen to fix the liability on the petitoner alone, which cannot be countenanced. Therefore Ext.P7 fixation of liability is liable to be interfere with by this Court. 10. Apart from that, as regards the valuation of the missing books in fixing 1.5 times the face value of the books as liability although a reasoning has been given in Ext.P7, it is not based on any rules or guidelines applicable to the library. As such I do not think that the respondents can fix 1.5 times the face value of the books in respect of all books. It should depend on the particular book. Some books may be totally worthless that nobody would purchase it and some books would be so precious that it may be difficult to replace it at all. As such a uniform fixation of 1.5 times the face value as liability does not appear to be logical. 11. In the above facts and circumstances of the case if at all only the face value of the books can be fixed as liability in so far as there is no assessment of the importance W.P.(C).No. 13150 of 2007 -: 13 :- of the books missing. In fact, the respondents have not even chosen to produce before this Court the stock verification report or the assessment made by them of the value of books. Therefore the quantification of the liability also cannot be accepted as reasonable. 12. From the above discussion, it is clear that it is humanly impossible at this point of time to either fix the liability on the petitoner alone or to fix the quantum of liability with amount of certainty. But the petitoner himself admits in the writ petition that the normal practice is to recover 10% of the DCRG towards liability for missing books. Having admitted the same, the petitoner would be liable to that extent. Therefore, I quash the impugned orders and hold that the respondents can only recover 10% of the DCRG towards the liability on the ground that the petitioner is also liable for the missing books. The DCRG withheld from the petitioner shall be disbursed to the petitioner after deducting that amount within one month from the date of receipt of W.P.(C).No. 13150 of 2007 -: 14 :- copy of this judgment. Likewise 10% shall be recovered from the DCRG of all the persons who were working in the library including the Secretary during the period in question. The writ petition is disposed of as above. S. SIRIJAGAN, JUDGE smvd