IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WP(C).No. 34265 of 2005(D) --------------------------------------- PETITIONER: ------------------- T.P. JOSEPH, AGED 49 YEARS, S/O. LATE T.J. PATHROSE, THERAPPARAPUTHENPURAYIL (ANJO BHAVAN), THRICKALATHOOR P.O.,MUVATTUPUZHA, WORKING AS SECRETARY, RAYAMANGALAM GRAMA PANCHAYATH. BY ADV. SRI.S.SHANAVAS KHAN. RESPONDENTS: ------------------------ 1. THE SECRETARY, LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATHS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF PANCHAYATHS, IDUKKI. 4. THE DEPUTY DIRECTOR OF PANCHAYATHS, ERNAKULAM. R1 TO R4 BY SR. GOVERNMENT PLEADER SRI. P. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34265/2005-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEMO OF CHARGES DTD. 22/04/96 IN NO. D5/667/97 ISSUED BY THE R.2. EXT.P.2: COPY OF THE DECISION DTD. 13/08/93 ISSUED BY THE PANCHAYATH COMMITTEE, KUDAYATHOOR GRAMA PANCHAYATH. EXT.P.3: COPY OF THE DECISION DTD. 13/08/93 TAKEN BY PANCHAYATH COMMITTEE, KUDAYATHOOR GRAMA PANCHAYATH. EXT.P.4: COPY OF THE REPLY DTD. 19/06/96 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.5: COPY OF THE ORDER DTD. 06/09/96 IN D5.667/95 ISSUED BY THE R.2. EXT.P.6: COPY OF THE REPLY DTD. 09/10/96 SUBMITTED BY THE PETITIONER BEFORE THE R.2. EXT.P.7: COPY OF THE ORDER DTD. 09/11/04 IN D-667/95 ISSUED BY THE R.2. EXT.P.8: COPY OF THE APPEAL DTD. 03/01/2005 SUBMITTED BY THE PETITIONER BEFORE THE R.1. THROUGH PROPER CHANNEL. EXT.P.9: COPY OF THE STATEMENT DTD. 12/07/05 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.10: COPY OF THE ORDER DTD. 27/07/05 IN NO. 2977/05/LSG ISSUED BY THE R.1. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J ....................... W.P.(C).34265/2005 ....................... Dated this the 30th day of June, 2010 JUDGMENT On 11.10.1993, petitioner joined Kudayathoor Grama Panchayat as its Executive Officer. He was issued Ext.P1 memo of charges and the statement of allegations. There are three allegations of misconduct against the petitioner. First one is that he conducted re-auction of timber on 13.10.1993 without obtaining Valuation Certificate from the Revenue Department. It is alleged that his predecessor had addressed the Forest Range Officer for issuance of a Valuation certificate on 8.10.1993 and that the Valuation certificate was received only on 27.11.1993 and that auction was held before that. The second allegation is that irregular auction was conducted on 17.5.1993 and on 28.9.1993. Third allegation is that he conducted auction of timber on 10.11.1993 and that the bid amount was not mentioned in the minutes. On receipt of Ext.P1 memo of charges, petitioner submitted Ext.P4 reply. 2. Insofar as the first allegation that the petitioner conducted W.P.(C).34265/05 2 auction on 13.10.1993 before receipt of Valuation Certificate is concerned, although the petitioner accepted that the auction was held before receipt of Valuation Certificate, he submitted that no loss whatsoever was caused by such auction. It is his contention that the Forest Range Officer valued the timber for Rs.13,000/- and that against Rs.11,900/- fetched in the auction held on 28.9.1993, in the re-auction held on 13.10.1993 the timber was sold for Rs.21,000/-. 3. Insofar as the second misconduct regarding irregularities in the auction held on 17.5.1993 and 28.9.1993 are concerned, petitioner contended that these auctions were held prior to the petitioner joining duty as Executive Officer of the Panchayt and therefore, he cannot be held liable. 4. Insofar as the auction that was held on 10.11.1993 was concerned, petitioner submitted that it was a lapse on his part. However, he stated that the amount fetched in the auction was deposited in the Treasury on 10.11.1993 itself. On this basis, he pleaded that he had no malafide intention. W.P.(C).34265/05 3 5, Disciplinary authority considered Ext.P4 explanation and issued Ext.P5 order proposing to bar two increments of the petitioner with cumulative effect. Petitioner submitted Ext.P6 reply but however Ext.P7 order was issued by the 2nd respondent confirming the punishment. The appeal filed also was rejected by Ext.P10. It is in these circumstances the writ petition is filed. 6. Learned counsel for the petitioner contended that in response to Ext.P5 proposal, petitioner submitted Ext.P6 reply. He was heard by the Disciplinary Authority on 20.8.1998 and again on 18.11.2002 and that Ext.P7 order was issued only on 9.11.2004. It is also contended that the said order was passed by the Officer who did not hear the petitioner. On this ground, learned counsel submits that the order is in violation of principles of natural justice. As far as this contention of the learned counsel for the petitioner is concerned, this is fully covered against the petitioner by the Full Bench decision of Court in Sudheer v. Susheela (2009 (4) KLT 29). W.P.(C).34265/05 4 7. The other contention raised by the petitioner that the order of punishment has been imposed on him for misconduct No.2 which, even if is factually true, was prior to his assuming charge as Executive Officer of the Panchayat. It is also contended that he had no mala fide intention to mislead the authorities. Exts.P7 and P10 orders show that while imposing punishment both the Disciplinary Authority and the Appellate Authority had taken into account all the three misconducts. Admittedly misconducts regarding auctions held on 17.5.1993 and 28.9.1993 were committed long prior to the petitioner assuming charge as Executive Officer of the Panchayat which was only on 11.10.1993. If that be so, the petitioner could not have been made liable for this misconduct. 8. Insofar as the other misconducts proved against the petitioner are concerned, there has been no proper consideration by both the Disciplinary Authority and by the Appellate Authority. Although it is true that on 13.10.1993, auction was held without awaiting for the Valuation Certificate, the finding in Ext.P7 order is that by keeping the certificate dated 27.11.1993 in file, petitioner W.P.(C).34265/05 5 attempted to mislead the superior Officers. I am not in a position to endorse this view. If the petitioner wanted to mislead the authorities, he would not have placed the certificate dated 27.11.1993 on the file. If he had such an intention, he would have certainly fabricated the certificate, with a date prior to 13.10.1993 which he did not do. Therefore, I cannot endorse the view taken in Exts.P7 and P10 that the petitioner had attempted to mislead the superior Officers. That apart, it was also stated that the Valuation Certificate issued by the Forest Range Officer carried the value of Rs.13,000/- whereas the amount fetched in auction was Rs.21,000/-. Therefore, no mala fide motive can be attributed to the petitioner. 9. Insofar as the third misconduct that was allegedly committed on 10.11.1993 is concerned, although the petitioner himself had accepted that there has been a lapse on his part, fact remains that the entire amount fetched in the auction has been deposited by him on 10.11.1993 itself. This could not itself shows that he had no mala fide intention to misappropriate any amount. These factors would certainly show that the authorities have decided to W.P.(C).34265/05 6 impose punishment without adverting to these relevant facts. The Disciplinary Authority has imposed a punishment of barring two increments with cumulative effect which will have a cascading effect on the petitioner. Therefore the matter needs to be re- considered. 10 For that purpose, I set aside Exts.P7 and P10. 2nd respondent is directed to re-consider the matter with notice to the petitioner and duly adverting to the aforesaid observations in this judgment. Orders shall be passed as expeditiously as possible at any rate within two months of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, Judge mrcs