IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 WP(C).No. 18228 of 2008(T) -------------------------- PETITIONER(S): ------------------- M.P.RAMACHANDRAN, UDC(HG), (NOW UNDER SUSPENSION), STATE COUNCIL OF EDUCATION, RESEARCH AND TRAINING(SCERT), POOJAPPURA, TRIVANDRUM BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH RESPONDENT(S): -------------------- 1. THE DIRECTOR, STATE COUNCIL OF EDUCATIONAL RESEARCH & TRAINING (S.C.E.R.T.), POOJAPPURA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM 3. STATE OF KERALA, REP. BY THE SECRETARY GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 4. THE ACCOUNTANT GENERAL(A&E), THIRUVANANTHAPURAM GOVERNMENT PLEADER SMT.T.B.REMANI SRI.M.K.CHANDRA MOHANDAS FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ============== W.P.(C) NO. 18228 OF 2008 (T) ==================== Dated this the 5th day of November, 2008 J U D G M E N T Petitioner was an Upper Division Clerk on deputation to the 1st respondent and was in charge of training. 2. On the allegation that three employees including the petitioner had not settled the huge amount of advance drawn by them while they were working under the 1st respondent, in violation of Ext.R2(a) circular, by Ext.P5 order dated 16/10/2006, they were placed under suspension pending disciplinary action. Petitioner submits that thereafter Ext.P6 memo of charges was issued to him to which Ext.P7 statement of defence was given. It is stated that similar memos were also issued to the other two employees whose names are also mentioned in Ext.P5. 3. While the matter stood thus, Ext.P8 notice was issued tentatively fixing the liability of the petitioner at Rs.4,67,482/- and the petitioner was called upon to explain why it shall not be fixed as his liability. Petitioner submits that he gave Ext.P9 reply. In Ext.P9, the main dispute was regarding the penal interest that was levied on the excess amount that was drawn by him as advance. It is stated that despite the objections raised, by Ext.P10 order, his liability was fixed at Rs.4,54,292, WPC 18228/08 :2 : out of which Rs.2,13,818 is penal interest. It was at that stage the writ petition has been filed seeking to quash Ext.P5, P6 and P10. 4. Counsel submits that the petitioner is due for retirement on 30th of November, 2008. It is also stated that the suspension in so far as one of the persons whose name is mentioned in Ext.P5 has been revoked by Exts. P12 and P13. It is also stated that the levy of penal interest by Ext.P10 is illegal for the reason that the entire excess amount drawn by the petitioner towards advance has been remitted by the petitioner as per Ext.P11 series of receipts produced along with the reply affidavit filed in this writ petition. 5. As regards the challenge against the memo of charges is concerned, the allegations in Ext.P6 memo of charges certainly discloses misconducts. Therefore it is a fit case for the disciplinary authority to proceed with the enquiry and the petitioner will necessarily have to face the enquiry and prove his innocence before the enquiry officer. Unless this Court comes to a conclusion that the memo of charges does not disclose a misconduct or that the memo of charges is vitiated for any such similar reasons, this court will not be justified in interfering with the same. On the WPC 18228/08 :3 : materials available, no such case has been made out. Therefore, the challenge against Ext.P6 memo of charges is only to be rejected and I do so. 6. Coming to Ext.P5, the order by which petitioner has been placed under suspension, though the said action cannot be faulted, still the fact remains that another person who was also placed under suspension on the very same allegations has been ordered to be reinstated as per Exts. P12 and P13 orders. 7. Although it is true as contended by the learned Government Pleader that the petitioner did not seek appellate remedies against the oder of suspension, fact remains that an identically situated person has been ordered to be reinstated. If that be so, I see no justification to keep the petitioner out of the service even at this fag end of his career. Therefore, for that reason, I am inclined to set aside Ext.P5 and direct that the petitioner shall be reinstated, but, however without prejudice to the right of the disciplinary authority to continue the disciplinary action in pursuance to Ext.P6. 8. Yet another grievance of the petitioner is regarding Ext.P10, WPC 18228/08 :4 : the order by which his liability has been quantified. The main grievance of the petitioner is that despite the fact that he has remitted entire amount of advance drawn by him, he has still been levied penal interest. 9. Learned Government Pleader invites my attention to Ext.R2(a) circular dated 15/7/2003, which requires that the unspent advance amounts shall be refunded within 15 days on completion of the programme. This order further provides that violation of the above will invite levy of penal interest @ 18%. Referring to the counter affidavit, it is contended that petitioner has remitted the amount back after long delay and therefore, the levy of penal interest is justified. However, counsel for the petitioner submits that as is evident from Ext.P11 series of receipts, there has not been any delay in remitting the advance amounts. This however is a disputed question of fact and is a matter for the authority concerned to examine with reference to the records. 10. Therefore, I direct that it will be open to the petitioner to raise his objection against Ext.P10, producing Ext.P11 series of receipts before the 1st respondent. This the petitioner may do within 7 days from today. It is directed that if the petitioner makes any such representation against WPC 18228/08 :5 : Ext.P10 as directed above, the 1st respondent shall examine the matter in the light of the receipts produced by the petitioner and fix the liability, if any, of the petitioner before 30/11/2008, the date on which the petitioner is attaining the age of superannuation. Thereafter, it will be to the respondents to realise the amounts due from the petitioner from whatever amount that is due to him. 11. Writ petition is disposed of as above. Petitioner shall produce a copy of this judgment before the 1st respondent for compliance. ANTONY DOMINIC, JUDGE Rp