IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 WP(C).No. 4899 of 2010(J) ------------------------- PETITIONER(S): --------------- GEORGE EAPEN,AGED 54 YEARS, PARAPURACKAL VEEDU,MYTHREEPURAM,THRIKKAKARA.PO, COCHIN-21,NOW WORKING AS SECRETARY,SPL.GRADE, PORATHISSERY GRAMA PANCHAYATH,KARUVANNUR.PO, THRISSUR. BY ADV. SRI.P.SANTHALINGAM, SENIOR ADVOCATE SRI.S.SHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA,REP.BY SECRETARY TO GOVERNMENT,LOCAL SELF DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PANCHAYATH,O/O THE DIRECTOR OF PANCHAYATH,THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF PANCHAYATH, O/O THE PANCHAYAT DEPUTY DIRECTORATE, ERNAKULAM. 4. THE SECRETARY(SPL.GRADE),THRIKKAKARA GRAMA PANCHAYATH,KAKKANAD.P.O,ERNAKULAM DISTRICT. ADV. SRI.S.SHANAVAS KHAN FOR R4 SMT.S.INDU FOR R4 GOVERNMENT PLEADER SRI. BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Ext.P1. A true copy of the Memo of Charges No.D2-30510/05 dated 2.6.2007 issued by the 2nd respondent Ext.P2. A true copy of the explanation dated 12.7.2007 submitted by the petitioner to he 2nd respondent. Ext.P3. A true copy of the Show cause notice No.D2-30510/05 dated 10.3.2008 issued by 2nd respondent, Ext.P4. A true copy of the explanation dated 21.4.2008 submitted by the petitioner to the 2nd respondent. Ext.P5. A true copy of the Order No.D2-6249/08 dtd.15.4.2008 issued by the 3rd respondent. Ext.P6. A true copy of the Order No.D2-30510/05 dated 26.5.2008 issued by the 2nd respondent. Ext.P7. A true copy of the Appeal dated 20.12.2008 submitted by the petitioner before the Ist respondent. Ext.P8. A true copy of the Judgment dated 8.9.2009 in WP(c).No.25328/09 of the Hon'ble High court of Kerala. // true copy // P.S to Judge ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.4899 OF 2010(J) -------------------------------------------------- Dated this the 18th day of March, 2011 J U D G M E N T In this writ petition, the challenge is against the disciplinary proceedings initiated against the petitioner. 2. Facts of the case are that the petitioner entered service in 1980 as a Lower division Clerk. In 1985 he was promoted as Upper Division Clerk. In 1988 he was again promoted as Head Clerk. He got further promotion as Executive Officer Grd.I in 1989 and as Junior Superintendent in 1994. Again he was promoted as Secretary(Special Grade) with effect from 1.9.1994. 3. Ext.P1 is a memo of charges issued on 24.3.1998 alleging that while the petitioner was working as Junior Superintendent in Thrikkakara Grama Panhayat, he had withdrawn an amount of Rs.1,50,000/- from the District Treasury and that on verification it was found that he had not filed vouchers for Rs.12,630/-. It was alleged that without maintaining necessary vouchers amount was withdrawn from the Treasury and misappropriated causing loss to the Panchayat. On being served the memo of charges, petitioner submitted Ext.P2 WPC.No.4899 /2010 :2 : explanation. He was heard by the disciplinary authority. Thereafter, Ext.P3 show cause notice proposing to impose punishment of barring two increments with cumulative effect was issued. Petitioner submitted Ext.P4 explanation. 4. While the matter was thus pending, it appears that the petitioner and others who were also proceeded against, submitted letter dated 17.3.2006, undertaking to remit the amount allegedly misappropriated by them. Accordingly, the Deputy Director of Panchayat issued Ext.P5 proceedings dated 15.4.2008, directing the 5 persons mentioned therein including the petitioner, to remit their respective share of the amount misappropriated. In so far as the petitioner is concerned, he was directed to remit Rs.3,000/- which he willingly remitted. 5. Subsequently disciplinary authority issued Ext.P6 proceedings dated 26.5.2008, imposing a punishment of barring of one increment with cumulative effect. Against the punishment imposed, petitioner filed Ext.P7 appeal before the first respondent. Pursuant to the directions of this court in Ext.P8 judgment in WP(c).No.25328/09 filed by the petitioner, the first respondent considered the appeal and dismissed the same by WPC.No.4899 /2010 :3 : Ext.P10 proceedings. It was in this background the writ petition is filed. 6. The contention raised by the counsel for the petitioner is that the alleged misconduct pertains to 1998 and the proceedings were initiated only in 2007 and that too long after the petitioner was transferred from Thrikkakara Panchayat. It is also his contention that he had maintained all vouchers and that even if the vouchers were lost subsequently the petitioner cannot be punished on the basis that any misconduct has been committed by him. 7. Although, I have considered the submissions made, I am unable to agree with the learned counsel for the petitioner. Admittedly the petitioner worked as a Junior Superintendent at the Thrikkakara Panchayat at the relevant time and had the responsibility of maintaining the vouchers, justifying the withdrawal of amounts from District Treasury. Absence of voucher was found out only when the audit was conducted 5 years after the amount was withdrawn. If that be so, the authorities could have initiated disciplinary proceedings against the petitioner only thereafter. In such a situation the delinquent cannot contend WPC.No.4899 /2010 :4 : that delay has occurred and therefore the proceedings should be quashed. Even otherwise, unless delay has resulted in any prejudice, which is to be pleaded and proved, delay by itself will not invalidate the proceedings against a delinquent. Therefore I am not impressed by the arguments raised by the counsel for the petitioner regarding the alleged delay. 8. On merits also, I cannot accept the case of the petitioner for more than one reason. First of all a reading of Ext.P5 shows that the petitioner and the other Officers themselves submitted letter dated 17.3.2006 agreeing to remit the amount allegedly misappropriated by them. It is also the undisputed case of the petitioner that the said offer made by the petitioner was accepted and on that basis the petitioner has remitted the amount. Thus, misconduct has been admitted by the petitioner. If that be so, the petitioner cannot be pleaded for exoneration. 9. Even otherwise Ext.P3 show cause notice issued after hearing the petitioner, Ext.P6 proceedings of the disciplinary authority and Ext.P10 order passed by the Government as appellate authority show that all the contentions raised by the petitioner were examined and were concurrently rejected. WPC.No.4899 /2010 :5 : Nothing has been placed by the petitioner on record to persuade this court to take a different view. Therefore, I do not find any merit in the contentions raised. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/