IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 WA.No. 154 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.25335/2008 Dated 22/08/2008 .................... APPELLANT(S): -------------- MADHUSUDANAN M.P., ASST.TALUK SUPPLY OFFICER, SULTHAN BATHERY, WAYANAD DIST. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------- 1.STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, FOOD, CIVIL SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2.THE COMMISSIONER OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 3.THE DIRECTOR OF CIVIL SUPPLIES, THIRUVANANTHAPURAM. 4.THE REGIONAL MANAGER, CIVIL SUPPLIES CORPORATION, KOZHIKODE. 5.THE TALUK SUPPLY OFFICER, SULTHAN BATHERY, WAYANAD DIST. ADV. SMT.MOLLY JACOB,SC,SUPPLYCO FOR R4 GOVT.PLEADER SRI.BENNY GERVASSIS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ---------------------------------------------- W.A. No.154 of 2009 ---------------------------------------------- Dated 27th January, 2009. J U D G M E N T Kurian Joseph, J. Appellant/petitioner is aggrieved by the judgment of the learned Single Judge in W.P.(C) No.25335/08. The writ petition was filed challenging the orders regarding the disciplinary proceedings initiated against the petitioner. The disciplinary proceedings culminated in barring of two increments with cumulative effect, and recovery. The main challenge is on the punishment of barring of two increments with cumulative effect. According to the petitioner, since the proposal was only to impose a punishment of barring of two increments without cumulative effect, the Director of Civil Supplies could not have imposed a punishment of barring of two increments with cumulative effect. In order to appreciate the above contention, a brief reference to the facts is necessary. 2. While the petitioner was working as Upper Division Clerk in the Civil Supplies Department, he was sent on deputation to the Kerala State Civil Supplies Corporation. During deputation, he was put in charge of the Shop Manager of a Maveli Store. WA NO.154/09 2 Alleging several irregularities including temporary misappropriation, disciplinary proceedings were initiated against him and he was served with a memo of charges dated 23.7.1993. The Regional Manager of the Civil Supplies Corporation, after considering the explanation offered by the petitioner, made a proposal to recover an amount of Rs.54,916/-, and imposed a minor penalty of stoppage of two increments without cumulative effect, as per Ext.P2 letter addressed to the Director of Civil Supplies. That letter happened to be addressed to the Director of Civil Supplies since by the time the proceedings were completed, the writ petitioner had already been repatriated to the Civil Supplies Department in August, 1993. However, it is significant to refer to paragraph 9 of the letter, wherein it is stated that the writ petitioner had no satisfactory explanation for the temporary misappropriation. The Regional Manager also was of the view that “the irregularities committed by Sri.M.P.Madhusoodhanan formerly Shop Manager of the Hevel Mobile Maveli Kalpetta and Hevel Maveli Store Meppady are very grave in nature and warrants deterrent punishment. His ill deeds are a high handed one and cannot be viewed lightly.” However, the proposal was WA NO.154/09 3 only to recover the loss sustained to the Corporation and to bar two increments without cumulative effect. The Director, however passed Ext.P3 order barring two increments with cumulative effect and ordering recovery of the loss with interest. The petitioner pursued the matter in appeal before the second respondent Board of Revenue. The same was rejected, leading to Ext.P4 order passed by the Board of Revenue. Pursuant to the remand as per Ext.P4, the Director again passed Ext.P5 order sustaining the punishment of barring of two increments with cumulative effect and ordering recovery of loss with interest. The matter was pursued before the Commissioner, Civil Supplies. The punishment regarding the recovery was slightly reduced. Still further, the petitioner pursued the matter before the Government leading to Ext.P7 order. The Government found that the punishment was justified in view of the repeated damage caused by the writ petitioner to the Corporation and also the misappropriation. Now the contention advanced by the learned counsel for the appellant/petitioner is that since the petitioner was on deputation to the Civil Supplies Corporation and since the controlling authority in the Corporation had proposed a WA NO.154/09 4 punishment only of barring of two increments without cumulative effect, the Director of Civil Supplies could not have imposed a different punishment. In case the Director had any disagreement with the punishment proposed, he should have made another proposal and not imposition of a different punishment. 3. We are afraid, the contentions cannot be appreciated. Under Rule 19(2)(i) of the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, if the borrowing authority is of the opinion that any of the penalties specified in items (i) to (iv) of Rule 11(1) (minor penalties) should be imposed on the person on deputation, the borrowing authority may do so in consultation with the lending authority. The proviso has also made it clear that in the event of any difference of opinion between the borrowing authority and the lending authority, the services of the Government servant shall be placed at the disposal of the lending authority. In the instant case, by the time the disciplinary proceedings had already been concluded, except the stage of imposition of the punishment, the petitioner had already been sent back to the Civil Supplies Department. Therefore, at the time of imposition of the punishment, the WA NO.154/09 5 employee is under the Department. What is material is the time and stage of imposition of the punishment, under Rule 19(2) (i). Even otherwise, in a situation of difference of opinion between the borrowing authority and the lending authority, it is the view of the lending authority that has to be accepted and implemented. In the instant case, on both counts, the writ petitioner is not entitled to succeed. At the time of imposition of the punishment, the writ petitioner had already been repatriated to the Department. Even if there is any difference of opinion between the view that is expressed by the Regional Manager of the Civil Supplies Corporation and that of the Department, it is the opinion of the lending authority that has to be accepted and the matter has to be governed by that opinion. That is all what has been done in the instant case. Thus, there is no merit in the appeal. It is dismissed. KURIAN JOSEPH, JUDGE. P.R.RAMACHANDRA MENON, JUDGE. tgs KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ ---------------------------------------------- W.A. No.154 of 2009 ---------------------------------------------- J U D G M E N T Dated 27th January, 2009.