IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 6TH JANUARY 2009 / 16TH POUSHA 1930 OP.No. 13351 of 2002(M) PETITIONER(S): T.M. SIVADAS, SYRANG, C.C.NO.1566, REGIONAL OFFICE, KERALA STATE WATER TRANSPORT DEPARTMENT, ERNAKULAM. BY ADV. SRI.T.I.DANIEL RESPONDENT(S): 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE DIRCTOR, KERALA WATER TRANSPORT DEPARTMENT, DIRECTOR OFFICE, ALLEPPEY. 3. THE PRINCIPAL STATION MASTER, KERALA WATER TRANSPORT REGIONAL OFFICE, ERNAKULAM. 4. THE SENIOR SUPERINTENDENT, KERALA WATER TRANSPORT REGIONAL OFFICE, ERNAKULAM. 5. ANU, LASCAR, C.C.NO.7226, KERALA WATER TRANSPORT REGIONAL OFFICE, ERNAKULAM. GOVERNMENT PLEADER SRI. K.J. MOHAMMED ANZAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 06/01/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: J U D G M E N T NEITHER COUNSEL NOR PETITIONER IS PRESENT. DISMISSED FOR DEFAULT. 6/1/2009. SD/- S. SIRI JAGAN, JUDGE. [TRUE COPY] P.S TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.13351 OF 2002 ---------------------------------------- Dated this the 9th day of February, 2009 JUDGMENT The petitioner is a Syrang in the Kerala Water Transport Department of the Government of Kerala. Disciplinary proceedings were initiated against him in the matter of negligence while navigating a boat as Syrang which resulted in the boat hitting against the Jetty causing damages to the boat and the jetty to the tune of Rs.38,000/-. Originally, a memo was issued to all the employees of the Boat. After considering their objections, Ext.P2 show cause notice was issued to the petitioner directing him to show cause why the loss caused to the Government on account of his misconduct should not be recovered from him. Pursuant thereto, after considering the petitioner's explanation, Ext.P3 order has been passed holding that the petitioner was negligent in navigating the boat resulting in loss to the Government to the tune of Rs.38,000/- and directing to realise the said amount from the salary of the petitioner at the rate of Rs.750/- per month. The petitioner is O.P.No.13351/02 2 challenging Ext.P3 order. 2. The primary contention raised by the petitioner is that no enquiry was conducted before Ext.P3 order was passed. 3. A counter affidavit has been filed controverting the contentions of the petitioner. 4. I have considered the rival contention in detail. The question of conducting an enquiry mandatorily arises only if proceedings have been initiated under Rule 15 of the Kerala Civil Services (Classification, Control and Appeal) Rules. The procedure prescribed under Rule 15 is to be followed only if the punishment proposed is those under sub clauses (v) to (ix) of Rule 11. Recovery from pay of the whole or part of any pecuniary loss caused to a State Government or the Central Government or to a local authority by negligence or breach of orders comes under sub rule (iv) (a) of Rule 11. For imposition of that punishment, the procedure prescribed is that under Rule 16, which envisages only issue of a show cause notice with an opportunity to make a representation. Admittedly, a show cause notice has been issued with an opportunity to file representation against the same, after considering the O.P.No.13351/02 3 explanation filed by the petitioner pursuant thereto only, Ext.P3 order has been passed. As such, I do not find any infirmity in the procedure adopted. In reply to Ext.P2, although the petitioner claims to have filed explanation, the same has not been produced. Of course, the learned counsel for the petitioner would contend that there was no proper fixation of the damages. But I find that one of the documents referred to in Ext.P3 is a report from the Assistant Executive Engineer based on which the damages have been calculated. The petitioner has not sought to challenge that report of the Assistant Executive Engineer. Of course, the petitioner had in Ext.P1 taken a contention that the boat was driven by a Lascar and not by a qualified driver. But it does not appear that the petitioner had taken that contention in reply to Ext.P2. The petitioner is not able to substantiate that contention on the basis of any material on record. In the above circumstances, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.13351/02 4