IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 19073 of 2006(U)
1. P.V.THAMPAN, HEAD CLERK,
... Petitioner
Vs
1. COMMISSIONER FOR RURAL DEVELOPMENT,
... Respondent
2. THE PROJECT OFFICER,
For Petitioner :SRI.P.RAVINDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.K.DENESAN
Dated :21/12/2006
O R D E R
K.K. DENESAN, J.
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W.P.(C)No. 19073 OF 2006 U
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Dated this the 21st December, 2006
J U D G M E N T
The challenge is to Ext. P1 order of the 1st
respondent placing the petitioner under suspension from
the post of Head Clerk, District Rural Development
Agency (DRDA), Kasaragod. Ext. P1 was passed pursuant
to Government letter dated 8-6-2006 which is referred
to therein. It is stated that the petitioner was found
responsible for the irregularities pointed out by the
Finance Inspection Wing. The order of suspension came
into effect immediately.
2. Respondent No. 1 is the Commissioner for Rural
Development, Thiruvananthapuram. Respondent No. 2 is
the Project Officer, DRDA, Kasaragod. During the
pendency of the writ petition, Government of Kerala
represented by the Chief Secretary was impleaded as
additional 3rd respondent.
3. It is contended that the impugned order was
passed without application of mind, that it is a
colourable exercise of power and that it is vitiated by
WPC No.19073 /2006 -2-
extraneous considerations and malafide exercise of
power besides being discriminatory and arbitrary. The
respondent entered appearance pursuant to notice
ordered on 24-8-2006.
4. Having regard to the contention seriously urged
by the petitioner that the impugned order is
discriminatory and the department is shielding the
Project Officer despite the report of the Financial
Inspection Wing, this Court, on 1-8-2006, passed the
following interim order:
“Counsel for the petitioner submits that
statutory remedy will be invoked and time may
be granted to produce copy of the
representation or appeal as the case may be.
Govt. Pleader is directed to ascertain in the
meantime what action has been taken against
the Project Officer against whom findings
have been entered in the inspection report
regarding the very serious lapses and
misconduct.
Post on 7-8-2006.”
5. The 1st respondent was not able to furnish the
above information despite repeated adjournments granted
by this Court. In the meantime, the petitioner
produced Ext. P2 representation filed before the 2nd
respondent requesting to revoke Ext. P1 and to
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reinstate him in service.
6. Since neither the information sought for on
1-8-2006 nor counter affidavit in answer to the
averments and allegations contained in the writ
petition was filed by the respondents, this Court
directed the 1st respondent on 11-12-2006 to make
available the files leading to Ext. P1 and subsequent
proceedings, if any, taken in the matter.
7. When the writ petition came up for consideration
on 18-12-2006, the Govt. Pleader made available the
relevant files for the perusal of this Court.
8. I have heard the learned counsel for the
petitioner and the learned Govt. Pleader for
respondents 1 to 3.
9. A perusal of the file leading to Ext. P1 and the
subsequent action taken reveals that action has been
taken against the petitioner only, though the report on
inspection conducted in the DRDA, Kasaragod by the
Finance Inspection Wing, based on the irregularities
noticed, the Project Officer (respondent No. 2) and the
Head Clerk (petitioner) may be suspended with immediate
WPC No.19073 /2006 -4-
effect pending detailed enquiry. The irregularities
that came to the notice of the inspection team consist
of obtaining quotations from M/s. Smitha Printers, M/s.
Varnam Graphics and M/s. Varnamudra Printers which are
alleged to be not in existence. A sum of Rs.63,200/-
was sanctioned towards printing charges payable to M/s.
Varnamudra Printers. The amount was paid to the
firm by cheque dated 26-12-2005. The Inspection Wing
observed that Stores Purchase Rules were not observed,
Stock Register was not maintained, competitive tenders
were not invited giving wide publicity, etc. Since a
sum of Rs.58,500/- was seen spent towards printing
charges and the amount paid to M/s. Smitha Printers by
cheque dated 29-12-2005, the Inspection Wing made
efforts to locate the printing press in the address
shown, but no such institution could be found out. As
regards payment of Rs.92,000/- to M/s. Varnamudra
Printers and debiting the expenditure to DRDA account,
the Inspection Wing found on verification that no
entries were made in the relevant registers and that
the Project Officer could not produce even a single
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copy of the loan register. As regards cheque for
Rs.97,000/- issued towards printing charges for SGSY
membership register, the Inspection Wing observed that
the printing work was carried out by M/s. Varnam
Graphics which is a non-existing firm in Kasaragod and
that the Project Officer had no answer about the non-
availability of the bills except stating that the bills
were in the custody of the Head Clerk. Irregularities
were found in the matter of payment of Rs.1,63,000/- by
two cheques dated 8-2-2006. Irregularities were
noticed in the maintenance of cheque book, store
register, etc. In the above circumstances, the
Inspection Wing opined that the quotations and bills in
the name of non-existing firms were bogus and
fabricated. The Inspection Wing noticed that before
printing orders were given the Project Officer did not
care to sign any agreement with the firm which quoted
the lowest rate. Though the DRDA purchased a new car
in the place of the old car, no action was taken to
sell away the old car in public auction, despite the
Accountant General (Audit) Kerala in its report for the
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year 2004-2005 had directed to take early action to
dispose of the car. The road rollers were found idle
causing pecuniary loss to the department. On
verification of the telephone charges incurred on the
official/residential telephone of the Project Officer
for the year 2005 it was found that he had made calls
in excess of the limit. It was also alleged by the
inspection party that almost all the officers had
performed number of journeys from Kasaragod to
Thiruvananthapuram throughout the year without any
prior sanction or advance tour programme and had
committed serious irregularities. Hence, the Principal
Secretary to Finance in his report forwarded to the 1st
respondent as per letter dated 8-6-2006 recommended
appropriate action to be taken. Suspension of the
petitioner and the 2nd respondent from service was the
foremost recommendation made by the Principal Secretary
to Finance.
10. It is not understood why the order of
suspension was confined to the petitioner alone and why
the 2nd respondent was spared. In the nature of the
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findings and observations made by the Finance
Inspection Wing, there is hardly any scope for taking
action against the petitioner alone. The 2nd respondent
is the superior officer and the head of the office
whereas the petitioner is a subordinate ministerial
employee under the supervisory control of the 2nd
respondent. The report of the Finance Inspection Wing
did not say that the irregularities occurred due to the
actions or omissions exclusively attributable to the
petitioner. On the contrary the report shows that the
Finance Inspection Wing indicted the 2nd respondent as
the person responsible for the irregularities in more
places than one.
11. Though the fact situation is as above, the
petitioner alone was placed under suspension and still
remains under suspension. The above apparently illegal
and unjustified attitude of respondents 1 and 3 led to
the passing of interim orders by this Court in these
proceedings.
12. The attitude of the respondents in not taking
action against the 2nd respondent while keeping the
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subordinate officer under suspension for months
together is per se discriminatory and malafide too.
The 1st respondent took up the contention that the
authority competent to take action against the 2nd
respondent is the Government. But the Government did
not take any action against the 2nd respondent though
direction was issued to the 1st respondent to place the
petitioner under suspension.
13. It would appear that one Gopalakrishnan Potti,
Joint Development Commissioner was deputed to conduct
an enquiry into the allegations raised by the Finance
Inspection Wing about the functioning of DRDA,
Kasaragod and the said officer filed his report
addressed to the 1st respondent on 25-8-2006 observing
that the allegation that the orders for printing of
forms and registers were given to bogus firms has been
proved to be false. He also stated that the bills for
payment of printing charges are not bogus. Nor the
quotation by the presses bogus. He reported that the
only irregularity found by him was improper maintenance
or absence of certain records and non-observance of the
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Stores Purchase Rules. He, therefore, recommended that
the suspension of the petitioner may be reviewed
compassionately, and further, that the disciplinary
proceedings for imposing minor penalty on the
petitioner alone was necessary. He also
recommended that for the lapses committed by the 2nd
respondent disciplinary proceedings for the imposition
of minor penalty can be taken against him. Evidently,
the 2nd respondent can safely avoid any order placing
him under suspension, in the light of the subsequent
enquiry made by Shri. Gopalakrishnan Potti.
14. The Principal Secretary to Government, Local
Self Government Department sent letter dated 27-10-2006
to the 1st respondent requesting the said respondent to
take appropriate steps on the basis of the
recommendation of Shri. S. Gopalakrishnan Potti, who
conducted the enquiry. A specific direction to
review the suspension of the petitioner also was
issued. But after receiving the above letter, on
4-11-2006, the 1st respondent has not cared to take any
effective action to implement the order of the
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Government.
15. The files produced for the perusal of this
Court do not show anything, at least, to indicate that
action has been proposed to be taken, leave alone
taken, against the 2nd respondent. It is clear that
even after the lapse of more than 5 months, the only
person who was taken to task is the petitioner, leaving
the 2nd respondent free from all troubles. Ordinarily,
any prudent person would expect some action against the
2nd respondent also if not a much more serious action,
taking note of the superior and controlling position he
held in the office. Is disciplinary action a machinery
to trap the lesser mortals while allowing the mighty
and the influential to escape the clutches of law? The
rationale and logic in placing the petitioner alone
under suspension and continuing to keep him under
suspension despite the report of Shri. S.
Gopalakrishnan Potti and the direction of the
Government to review the order of suspension, is
ununderstandable. The 1st respondent which jumped into
action as soon as direction was received from the
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Government to place the petitioner under suspension has
not taken any action worth mentioning pursuant to Govt.
letter dated 27-10-2006 which was received in the
office of the 1st respondent on 4-11-2006. This Court
directed the 1st respondent to produce the files on 11-
12-2006 and the same has been produced on 18-12-2006.
Upto that date, there is nothing in the files to show
that the 1st respondent has taken any action to review
the order of suspension.
16. The respondents have not denied or
controverted the averments in the writ petition.
Nothing has been stated in answer to the apparently
discriminatory and arbitrary action of the respondents
in singling out the petitioner alone for hostile
treatment. I have no hesitation to hold that the
action of the respondents is patently unjust and is
tantamount to abuse of the statutory and administrative
power vested in them. The impugned action offends
Article 14 of the Constitution of India, being ex facie
arbitrary.
17. Ext. P1 is liable to be quashed for reasons
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stated above. It is essential in the interest of
justice to direct respondents 1 and 3 by the issuance
of a writ of mandamus to reinstate the petitioner
forthwith. I do so. The period during which the
petitioner was kept out of service shall be regularised
in accordance with law.
The writ petition is allowed as above.
K.K. DENESAN
JUDGE
jan/