IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 OP.No. 25480 of 2002(G) ----------------------- PETITIONER(S): --------------- M.K.GOPALAN, REGIONAL ENGINEER (RETIRED) KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM. AT PRESENT RESIDING AT "SALU SADAN", POST KAKKATTIL, VIA. VADAKARA, KOZHIKODE DISTRICT. BY ADV. SRI.K.P.DANDAPANI (SR.) RESPONDENT(S): --------------- 1. THE KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE BOARD OF DIRECTORS, KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. ADV. POOVAPPALLY M.RAMACHANDRAN NAIR,ADL.SC FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 25480/02. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE NOTICE DTD.30.12.89 BY R1. P2. COPY OF THE EXPLANATION DTD.24.1.90. P3. COPY OF THE MEMO OF CHARGES DTD.26.2.92. P4. COPY OF THE EXPLANATION DTD.14.4.92. P5. COPY OF THE SHOW CAUSE NOTICE DTD.25.1.90. P6. COPY OF THE EXPLANATION DTD.16.2.99. P7. COPY OF THE ORDER DTD.2.12.99. P8. COPY OF THE APPEAL DTD.24.1.2000. P9. COPY OF THE INTIMATION DTD.25.4.2000. P10. COPY OF THE ORDER DTD.26.3.2001. P11. COPY OF THE REVIEW PETITION DTD.30.4.2001. P12. COPY OF THE NOTICE DTD.23.10.2001. P13. COPY OF THE WRITTEN SUBMISSION DTD.7.11.2001. P14. COPY OF THE ORDER DTD.4.12.2001. P15. COPY OF THE REVIEW PETITION DTD.21.12.2001. P16. COPY OF THE JUDGMENT IN O.P.NO.1910/2002 OF THIS COURT. P17. COPY OF THE ORDER DTD.30.4.2002. P18. COPY OF THE REPLY DTD.7.5.2002. P19. COPY OF THE ORDER DTD.6.6.2002. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 25480 of 2002 ================== Dated this the 2nd day of February, 2009 J U D G M E N T The petitioner retired from the service of the Kerala State Housing Board, on 30.4.2001. In this original petition he is challenging the disciplinary proceedings initiated against him, which ultimately ended in Ext.P7 order of punishment and Exts.P10, P17 and P19 orders in appeal, review and revision. By Ext.P3 memo of charges the petitioner and another employee were directed to show cause why the disciplinary action as contemplated under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 should not be taken against them for the following charges of misconduct: “(1) Non observance of the provisions of the Kerala P.W.D. code and of the Stores Purchase Rules in respect of Procurement of construction materials; (2) Procurement of construction materials at higher rate than the market rate prevailing at that time; (3) Unnecessary procurement of materials in excess of the quantities actually required for the work; (4) Causing loss of Rs.1,22,401/68 to the Board by undue expenditure; and (5) Dereliction of duty and negligence in allowing the construction materials at site to deteriorate.” 2. The petitioner filed Ext.P4 explanation disclaiming any liability. He has specifically contended that for the purchase in question the Stores Purchase Rules are not applicable in so far as the material alleged to have been purchased was not mentioned in Appendix VII of o.p.25480/02 2 the Store Purchase Rules. He also specifically contended that he was only following the directions of the Project Engineer in the matter and he had not done anything on his own. According to the petitioner, no further proceedings were taken pursuant to the memo of charges like conducting an enquiry, filing an enquiry report etc. etc. That was in February, 1992. Seven years later, on 25.1.1999 Ext.P5 notice was served on the petitioner, which was a show cause notice directing him to show cause why an amount of Rs.1,22,402/- with interest from 22.2.1985 for the alleged loss caused to the Board on account of the very same misconduct, should not be recovered from the petitioner and why the penalty of barring of one increment with cumulative effect as per the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, should not be imposed on him. The petitioner filed Ext.P6 explanation, in which he specifically requested for a hearing in person before imposing any penalty. According to the petitioner, without any further hearing, Ext.P7 order dated 2.12.1999 was served on the petitioner, whereby an amount of Rs.1,22,402 was directed to be recovered from the petitioner as pecuniary loss allegedly caused by him to the Board and a punishment of withholding of one increment with cumulative effect for a temporary period of 3 months as contemplated in clause (iii) of sub-rule (1) of Rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960 was also o.p.25480/02 3 imposed on him. The petitioner filed Ext.P8 appeal. In the meanwhile, by Ext.P9, the amount to be recovered from the petitioner was enhanced to Rs.1,72,752/-. By Ext.P10, the petitioner's appeal was rejected. The petitioner filed Ext.P11 review petition. By Ext.P14, that review petition was dismissed. The petitioner again filed Ext.P15 revision. By Ext.P17, the retirement benefits due to the petitioner were fixed from which the said amount was directed to be recovered. Subsequently, by Ext.P19 order, the revision petition was also dismissed. It is under the above circumstances the petitioner is challenging the impugned orders. 3. A statement has been filed by the Advocate appearing for the Kerala Housing Board from which I am unable to make heads or tails regarding the contentions of the Board in respect of the challenge against the impugned orders and in fact contains contradictory statements. 4. At the outset I must point out that neither the counsel for the petitioner nor the counsel appearing for the Kerala State Housing Board was able to tell me which are the rules applicable to the employees of the Kerala State Housing Board in the matter of disciplinary proceedings. In Section 18(2) of the Kerala State Housing Board Act, it is stated that subject to such rules as may be prescribed, if any officer or servant in the service of the Board is guilty of any o.p.25480/02 4 breach of departmental rules or discipline or of carelessness, neglect of duty or other misconduct or is unfit, the authority competent to appoint such officer or servant, may impose penalties stipulated in that section. Neither counsel is able to tell me as to whether rules have been framed by the Board as contemplated under Section 18(2). Neither of them are able to tell me whether the Kerala State Housing Board has adopted the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. 5. The petitioner's contention is that no enquiry has been conducted pursuant to the memo of charge issued to him, which is Ext.P3. The standing counsel for the Board is not able to tell me with any amount of certainty as to whether any enquiry was conducted or not. In the statement in paragraph 10 it is stated thus: “10. The contentions put forward in the grounds are also not sustainable. The liability of the petitioner was assessed on the basis of detailed departmental enquiry which was conducted as per the procedures prescribed by law. The punishment has been awarded to the petitioner and Sri.K.V.Krishnan Project Engineer as their involvement in the commission of the offence is clearly proved. The decision was not taken arbitrarily but legally. There is no delay in completing disciplinary proceedings. Further proceedings for disciplinary action can be done only after getting enquiry report. After studying enquiry report show cause notices were issued. Further actions were taken without any delay. It is true that the petitioner retired from service on 30.4.2001. Here Departmental proceedings were already been initiated. So the contention of the petitioner will not stand. So there is no bar to recover the loss from the pensionary benefits of the petitioner. The revision petition was considered and the petitioner could not prove his innocence and the same was dismissed.” (underlining supplied) The said paragraph clearly speaks about an enquiry and enquiry o.p.25480/02 5 report. However, no enquiry report is produced before me in spite of the specific contention by the petitioner to the effect that no enquiry was conducted. Strangely in paragraph 11 of the statement it is stated thus: “11. The enquiry revealed that the petitioner has committed the offence and appropriate punishment was imposed on him. The appellate and revisional authorities considered the case of the petitioner and found that the contentions raised by him are not at all sufficient to prove innocence. The enquiry revealed that the offence was committed by the petitioner in connivance of the Project Engineer. Both of them are jointly and severally liable for the illegal accounts done by them. There is no negligence on the part of the respondent. Disciplinary action will be completed after conducting enquiry. The petitioner also responsible for causing delay he did not submitted (sic) his defence within the stipulated time. There is no justification in the condition that recovery may be ordered from disciplinary authority. The procedure prescribed in rule 15 of the KCS (CCA) Rules have been followed and the punishment was imposed on the petitioner. There is no hard and fast rule to conduct enquiry before imposing punishment. The order of the revisional or appellate authority will not be affected for not conducting enquiry before punishment. The petitioner was heard by the Board as per the direction of the Hon'ble Court.” (underlining supplied) As such, it is not certain as to whether any enquiry was conducted at all. It is stated in the paragraph quoted above that proceedings have been initiated under Rule 15 of K.C.S.(CCA) Rules, which mandate an enquiry. 6. I specifically asked the counsel for the Board as to whether the proceedings were under Rule 15 or 16 of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960. In spite of the fact that Rule 15 is referred to in the statement he is unable to furnish any information regarding the same. Ext.P5 is the show cause notice o.p.25480/02 6 issued to the petitioner, which refers to the memo of charges issued to the petitioner and the other officer as also the written statement of defence submitted by the petitioner, but there is no mention whatsoever of any enquiry in Ext.P5. In Ext.P3 memo of charges the petitioner was directed to state in his reply as to whether he is desirous to be heard in person. In Ext.P4 reply he specifically stated thus: “9..... I further request that if necessary I may be given an opportunity for a personal hearing.” Again in Ext.P6 reply to Ext.P5 show cause notice, he has specifically requested to hear him in person before imposing any penalty. In Ext.P7 order of penalty, no personal hearing is referred to at all. In Exts.P4 and P6 the petitioner has given reasons as to why he cannot be found guilty. In Ext.P7 order none of those contentions have been referred to, much less considered. Likewise the orders in appeal, review and revision also are non-speaking orders without considering any of the contentions of the petitioner. The petitioner has also raised a contention that no loss has been caused to the Board on account of the alleged misconduct in so far as, as is clear from Ext.P8(3), the Textile Corporation had requested the Board to recover the alleged loss for an amount of Rs.3,97,147.10 due from the Board to the Corporation. In Ext.P10, they have simply brushed it aside stating that the Textile Corporation has not paid the amount as stated by the o.p.25480/02 7 petitioner. Nothing is mentioned in the statement filed before this Court about the same also. In view of the above discussion, I have no hesitation to hold that in the matter of disciplinary proceedings conducted against the petitioner the principles of natural justice have not been followed at all. Therefore, entire proceedings are liable to be quashed on that ground alone. Accordingly the impugned orders are quashed. The original petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================ O.P.No. 25480 of 2002-G ================ J U D G M E N T 2nd February, 2009