High Court Kerala High Court

Madhusudanan.M.P vs State Of Kerala on 27 January, 2009

Kerala High Court
Madhusudanan.M.P vs State Of Kerala on 27 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 154 of 2009()



1. MADHUSUDANAN.M.P.
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.ELVIN PETER P.J.

                For Respondent  :SMT.MOLLY JACOB,SC,SUPPLYCO

The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :27/01/2009

 O R D E R
     KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ.
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                       W.A. No.154 of 2009
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                   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

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W.A. No.154 of 2009

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J U D G M E N T

Dated 27th January, 2009.