IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 1051 of 2009(A) --------------------------------------- PETITIONER(S): ------------------------- E.N.PRABHAKARAN, ASSISTANT ENGINEER, L.S.G.D.SECTION,KUDAYATHOOR, THODUPUZHA. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): ------------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT,TRIVANDRUM. 2. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 3. THE DIRECTOR OF PANCHAYATH, TRIVANDRUM. 4. THE DEPUTY DIRECTOR OF PANCHAYATH, ERNAKULAM. GOVERNMENT PLEADER SRI.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/05/2010, ALONG WITH WPC. NO.18341 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1051/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEMO OF CHARGES DTD. 17.9.06. P2:- COPY OF THE STATEMENT OF ALLEGATIONS. P3:- COPY OF THE REPLY DTD. 19.1.07 TO EXT.P1 & P2. P4:- COPY OF THE NOTES SUBMITTED BY THE PETITIONER TO THE SECRETARY OF THE GRAMA PANCHAYATH. P5:- COPY OF THE RESOLUTION DTD. 21.6.04. P6:- COPY OF THE NOTES DTD. 7.2.05. P7:- COPY OF THE AGREEMENT DTD. 8.2.05 EXECUTED BY THE CONVENOR. P8:- COPY OF THE SHOW CAUSE NOTICE DTD. 31.1.08. P9:- COPY OF THE REPLY DTD. 8.7.08. P10:- COPY OF THE ORDER DTD. 27.9.08 BEARING NUMBER G.O.(RT) NO.3523/08/LSGD. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ------------------------- W.P.(C.) Nos.1051 (A) & 18341 (K) of 2009 --------------------------------- Dated, this the 19th day of May, 2010 J U D G M E N T The petitioners in these cases were working as the Assistant Engineer and the Secretary respectively of Vadavukode Puthancruiz Grama Panchayat. Disciplinary action was initiated against them concerning the alleged illegality in the disposal of scrap iron and in the transportation of bitumen from KRL, Ambalamugal and also in the supervision of work concerning improvements to Peechingachira. The petitioners submitted explanations denying the allegations. However, explanations were rejected, enquiries were ordered and the petitioners were found guilty. Report was submitted to the Government, which issued show cause notices. Explanations were also submitted by the petitioners denying the allegations. Finally order dated 27/09/2008 was issued imposing punishment of barring of three increments without cumulative effect for a period of three years and also to recover an amount of Rs.31,188/- from the petitioner in WP(C) No.1051/2009 & WP(C) Nos.1051 & 18341/2009 -2- Rs.61,255/- from the petitioner in WP(C) No.18341/2009. It is this order which is under challenge in these writ petitions. 2. Contention raised by the petitioners is mainly that they are innocent and that what they have done were fully in compliance with the provisions contained in the Kerala Panchayat Raj (Execution of Public Works) Rules 1997. It is therefore contended that the finding that their actions were in violation of the Public Works Department Manual is erroneous and illegal. The petitioner in WP(C) No.1051/2009 also contends that in terms of the Rules, even if there is any substance in the allegations, the responsibility for carrying out the works mentioned in the memo of charges were that of the Secretary and that therefore he could not have been saddled with any liability for any alleged default. On the other hand, the Secretary of the Panchayat , who filed WP(C) No.18341/2009, contends that he is innocent of charges and that every action taken by him was on the basis of the resolutions of the Panchayat and as authorised by it. 3. However, from the impugned orders imposing punishment and ordering recovery from the petitioners, it is noticed WP(C) Nos.1051 & 18341/2009 -3- that the applicability or relevance of the provisions as contained in the Kerala Panchayat Raj (Execution of Public Works) Rules, 1997, now urged before this Court, has not been raised or dealt with by the Government. It is also seen that the contention raised by the petitioners on the facts also has not been properly dealt with. That apart, the proceedings and other documents issued by the Panchayat allegedly authorising the petitioner in WP(C) No.18341/2009 also do not find a place in the impugned order. Thus, in short, there has not been a proper consideration of the issues arising in the matter. For that reason, I am inclined to set aside the order dated 27/09/2008 produced as Exts.P10 in these cases and I do so. It is directed that the 1st respondent shall reconsider the matter afresh with notice to the petitioners and after hearing them and pass fresh orders in the matter. The petitioners will be given liberty to file supplementary objections and produce documents. In so far as the petitioner in WP(C) No.1051/2009 is concerned, he has retired from service on 31/03/2010. If as stated by the petitioner, this is the only liability, it is directed that after WP(C) Nos.1051 & 18341/2009 -4- withholding sufficient amounts to clear the liability arising under the impugned order, rest of the amounts towards DCRG will be released to him, if NLC from the concerned Panchayat has already been received. These writ petitions are disposed of as above. (ANTONY DOMINIC, JUDGE) jg