IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 WP(C).No. 31710 of 2007(Y) ----------------------------------------- PETITIONER(S): ------------------------- M.K.MOHANAN, AGED 58 YEARS, S/O.T.K.ACHUTHAN, "MOHANAM", MELUR (PO), PALAYAD (VIA), THALASSERY, KANNUR. BY ADV. MR.M.SASINDRAN RESPONDENT(S): ---------------------------- 1. THE KERALA STATE DEVELOPMENT CORPORATION FOR SC/ST LTD., THRISSUR, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE MANAGING DIRECTOR, KERALA STATE DEVELOPMENT CORPORATION FOR SC/ST LTD., TRISSUR. 3. STATE OF KERALA-REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF SC/ST DEVELOPMENT, SECRETARIAT, THIRUVANANTHAPURAM. *ADDL.R4 IS IMPLEADED: R4. THE ACCOUNTANT GENERAL (AE), THIRUVANANTHAPURAM. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD.22/01/2009 IN I.A.NO.15100/2008) R1 & R2 BY ADV. MR.M.K.CHANDRA MOHANDAS R3 BY GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/01/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31710/2007 Y APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPORT OF THE VILLAGE OFFICER OF THIMIRI REGARDING THE PLOT. EXT.P1(A): COPY OF THE REPORT OF THE VILLAGE OFFICER, THIRUMENI VILLAGE. EXT.P2: COPY OF THE APPLICATION AND THE REPORT OF THE PETITIONER IN RESPECT OF THE 35 ¾ CENTS OF LAND IN SY.NO.100/2 OF THIMIRI VILLAGE. EXT.P2(A): COPY OF THE APPLICATION AND REPORT IN RESPECT OF 18 CENTS OF LAND IN R.S.NO.87/10A OF THIRUMENI VILLAGE. EXT.P3: COPY OF THE MEMO OF CHARGES DTD. 9/08/2000. EXT.P4: COPY OF THE REPLY DTD. 21/08/2000. EXT.P5: COPY OF THE SHOW CAUSE NOTICE DTD. 11/10/2000. EXT.P6: COPY OF THE REPORT DTD. 18/10/2000. EXT.P7: COPY OF THE COMMUNICATION DTD. 27/10/2000. EXT.P8: COPY OF THE AFFIDAVIT DTD. 7/11/2000. EXT.P9: COPY OF THE COMMUNICATION DTD. 30/07/2003 ISSUED BY THE 2ND RESPONDENT. EXT.P10: COPY OF THE REPLY DTD. 7/08/2003. EXT.P11: COPY OF THE MEMO OF CHARGES DTD. 20/12/2004. EXT.P12: COPY OF THE REPLY DTD. 31/12/2004. EXT.P13: COPY OF THE WRITTEN STATEMENT DTD. 9/05/2005. EXT.P14: COPY OF THE ENQUIRY REPORT DTD. 12/09/2005. Kss ..2/- ...2... WPC.NO.31710/2007 Y EXT.P15: COPY OF THE SHOW CAUSE NOTICE DTD. 23/09/2005. EXT.P16: COPY OF THE REPLY DTD. 14/10/2005. EXT.P17: COPY OF THE ORDER DTD. 12/01/2006. EXT.P18: COPY OF THE MEMORANDUM OF APPEAL DTD. 10/2/2006. EXT.P19: COPY OF THE COMMUNICATION DTD. 8/06/2007 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) NO: 31710 of 2007 --------------------------------------------------- Dated this the 22nd day of January, 2009 JUDGMENT Aggrieved by the proceedings issued by the respondents by way of second punishment on the basis of same set of charges, the petitioner has filed this writ petition. 2. The petitioner retired from service on 30.06.2007, while working as Regional Manager at the Kannur Regional Office of the 1st respondent Corporation. He was working as such from November, 1998 onwards. One Smt.Edacherian Seetha, had filed an application for financial assistance for purchase of two plots having the extent of 35 ¾ and 18 cents of land. The application was supported by the reports of Village Officers concerned showing that the value of the land is Rs.1500/- per cent in regard to the first item and a market value of Rs.45,000/- with regard to the second item. Based on the above reports, the petitioner conducted a site inspection thereafter and found that the property is cultivable. Exts.P2 and P2(a) are the applications and reports of the petitioner in respect of the two items of land and in it he had certified that the lands are cultivable and going by the value shown in the applications and certified by the Village Officer concerned, the assistance can be released. When certain complaints arose regarding the utilisation of funds, he was issued a memo of charges on the basis wpc:31710 of 2007 2 of the allegation that the valuation report does not reflect the correct value. Ext.P3 is the memo of charges to which he submitted Ext.P4 explanation. After considering his explanation Ext.P5 show cause notice was issued wherein Rs.26,875/- was shown as loss and it was proposed to fix as personal liability of the Regional Manager. He was allowed 15 days time to submit an explanation, to which he responded by submitting Ext.P6. Later by Ext.P7, it was ordered that the loss to the Government should be compensated by him. He was directed to file an affidavit to the effect that he would pay to the Corporation a sum of Rs.26,875/- if the assignee fails to pay the dues in full or in case the lands in question fails to fetch the amount equal to the loan amount when it is sold in public auction due to the failure of repaying the dues by the assignee. This was responded by the petitioner by submitting Ext.8 affidavit and final proceedings were issued. Thereafter, the matters were left there. 3. Three years after, he was informed by Ext.P9 that it has been ordered to recover half of the amount, that is, Rs.13,438/- from his salary in 25 installments. If he had any objection in that regard, he has to give a reply. This was issued on the ground that no recovery has been effected from the loanee. The petitioner submitted a reply to Ext.P9 show cause notice stating that the repayment period of the loan is 12 years and that steps are being taken to recover the amounts from the loanee. Ext.P10 is the reply. Long thereafter, on 20.12.2004, he wpc:31710 of 2007 3 was issued a fresh memo of charges on the same set of facts. Ext.P12 is the explanation given by him. Therein he pointed out that in the earlier proceedings his liability already had been fixed. Ext.P13 is a further explanation given by him. Ext.P14 is the enquiry report submitted by the Enquiry Officer. Thereafter, a show cause notice was issued as Ext.P15, wherein he was asked to show cause as to why a penalty of realisation of difference in value of the land assessed by the Village Officer between the market value and the fair price value, that is Rs.39,438/- should not be recovered from him. He objected to the said findings by submitting a reply Ext.P16. Finally by Ext.P17, the proposal was confirmed by assessing the loss to the tune of Rs.39,438/-. He filed an appeal by Ext.P18. The appeal also stands rejected by Ext.P19. 4. The learned counsel appearing for the petitioner submitted that in the light of the finality attached to the proceedings initiated on the first memo of charges reflected in Exts.P7 to P9, there cannot be any fresh enquiry into the matter, that too on the same set of allegations. It is therefore, submitted that the proceedings resulting in Exts.P17 and P19 are without jurisdiction. He relies upon the principles laid down by this Court in Thankappan Unnithan V.State of Kerala 1992 (1)KLT 263 and a decision of the Apex Court in Lt.Governor, Delhi and Others v. HC Narinder Singh (2004) 13 Supreme Court Cases 342 . wpc:31710 of 2007 4 5. The learned counsel appearing for the petitioner also submitted that even going by the report, the enquiry officer was of the view that the action taken by the petitioner in relying upon the certificates of the Village Officer was correct. It was reported by the enquiry officer that the Regional Manager cannot be blamed for accepting the land value as fixed by the competent revenue authorities. It was also reported that there is no evidence of any mal practice or corruption in the deal. 6. This Court in Thankappan Unnithan v. State of Kerala 1992 (1) KLT 263 held that “Article 20 guarantees immunity against ‘prosecution and punishment for the same offence’ for a second time. In the case on hand, there was no prosecution or punishment. However, postulates of fair action, require that a person ought not to suffer the same consequence twice. The Government may differ from findings made by the disciplinary authority and reach a different conclusion on the same facts. It cannot hold another enquiry to reach another conclusion.” Finally it was held that the Government re opened the matter, held another enquiry and came to an independent conclusion, where principles of fair- play interdict such a course. In the decision of the Apex Court in Lt.Governor, Delhi and Others v. HC Narinder Singh, (2004) 13 Supreme Court Cases 342, it was held that the second proposed action based on the same cause of action proposing to wpc:31710 of 2007 5 deny promotion or reversion is contemplated under the impugned show cause notice. The second penalty based on the same cause of action would amount to double geopardy. In the light of the above dictum, the proceedings culminated in Exts.P17 and P19 cannot be supported. The earlier proceedings which resulted in Ext.P7, quantified the total liability as Rs.26,875/-. He was made liable to pay the amount, only if the loanee fails to replay the amount. As directed in Ext.P7, he filed an affidavit agreeing for the said course as per Ext.P8. Since, the recovery was not effected steps continued to get the amount from him. By Ext.P9, it was informed that an amount of Rs.13,438/- is being recovered from the salary. There is no contention that these were set aside by any higher authority to order a de novo enquiry. The learned counsel appearing for the respondents submitted that fresh memo of charges were issued based on a complaint. The memo of charges shows that the allegations are identical. They are issued on the same set of facts. If that be so, the second disciplinary action on the same set of facts will result in double geopardy. A new punishment also is imposed, to the effect that he is made to bear the difference in the market value to the tune of Rs.39,438/-. 7. In that view of the matter, Exts.P17 and P19 are quashed. In Ext.P7, he was directed to file an affidavit to the effect that he would pay the Corporation a sum of Rs.26,875/- if the assignee fails to pay the dues in full or in case the land in question fail to fetch the amount equal wpc:31710 of 2007 6 to the loan amount when it is sold in public auction due to the failure of the assignee to pay the amount. That was implemented by Ext.P9 by effecting the recovery. The contingencies covered by Ext.P7 have not arisen at all. Therefore, the recovery ordered in Ext.P9 is premature. Pending this writ petition, the DCRG due to the petitioner after retaining the amount of Rs.39,438/- has been released. In view of the findings rendered to above, the balance amount of Rs.39,438/- has to be released to him. But if the contingency contemplated in Ext.P7 arises amount of liability as fixed could be recovered from the petitioner. Therefore, the right of the respondents to recover the same from the petitioner is protected by the said proceedings. The respondents shall release the balance amount of Rs.39,438/- within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. T.R.RAMACHANDRAN NAIR, JUDGE bps