IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 31710 of 2007(Y)
1. M.K.MOHANAN, AGED 58 YEARS,
... Petitioner
Vs
1. THE KERALA STATE DEVELOPMENT CORPORATION
... Respondent
2. THE MANAGING DIRECTOR,
3. STATE OF KERALA-REPRESENTED BY
For Petitioner :SRI.M.SASINDRAN
For Respondent :SRI.M.K.CHANDRA MOHANDAS
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :22/01/2009
O R D E R
T.R.RAMACHANDRAN NAIR, J
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W.P.(C) NO: 31710 of 2007
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Dated this the 22nd day of January, 2009
JUDGMENT
Aggrieved by the proceedings issued by the respondents by way
of second punishment on the basis of same set of charges, the
petitioner has filed this writ petition.
2. The petitioner retired from service on 30.06.2007, while
working as Regional Manager at the Kannur Regional Office of the 1st
respondent Corporation. He was working as such from November,
1998 onwards. One Smt.Edacherian Seetha, had filed an application
for financial assistance for purchase of two plots having the extent of
35 > and 18 cents of land. The application was supported by the
reports of Village Officers concerned showing that the value of the land
is Rs.1500/- per cent in regard to the first item and a market value of
Rs.45,000/- with regard to the second item. Based on the above reports,
the petitioner conducted a site inspection thereafter and found that the
property is cultivable. Exts.P2 and P2(a) are the applications and
reports of the petitioner in respect of the two items of land and in it he
had certified that the lands are cultivable and going by the value shown
in the applications and certified by the Village Officer concerned, the
assistance can be released. When certain complaints arose regarding
the utilisation of funds, he was issued a memo of charges on the basis
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of the allegation that the valuation report does not reflect the correct
value. Ext.P3 is the memo of charges to which he submitted Ext.P4
explanation. After considering his explanation Ext.P5 show cause notice
was issued wherein Rs.26,875/- was shown as loss and it was proposed
to fix as personal liability of the Regional Manager. He was allowed 15
days time to submit an explanation, to which he responded by
submitting Ext.P6. Later by Ext.P7, it was ordered that the loss to the
Government should be compensated by him. He was directed to file an
affidavit to the effect that he would pay to the Corporation a sum of
Rs.26,875/- if the assignee fails to pay the dues in full or in case the
lands in question fails to fetch the amount equal to the loan amount
when it is sold in public auction due to the failure of repaying the dues
by the assignee. This was responded by the petitioner by submitting
Ext.8 affidavit and final proceedings were issued. Thereafter, the
matters were left there.
3. Three years after, he was informed by Ext.P9 that it has been
ordered to recover half of the amount, that is, Rs.13,438/- from his
salary in 25 installments. If he had any objection in that regard, he has
to give a reply. This was issued on the ground that no recovery has
been effected from the loanee. The petitioner submitted a reply to
Ext.P9 show cause notice stating that the repayment period of the loan
is 12 years and that steps are being taken to recover the amounts from
the loanee. Ext.P10 is the reply. Long thereafter, on 20.12.2004, he
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was issued a fresh memo of charges on the same set of facts. Ext.P12 is
the explanation given by him. Therein he pointed out that in the earlier
proceedings his liability already had been fixed. Ext.P13 is a further
explanation given by him. Ext.P14 is the enquiry report submitted by
the Enquiry Officer. Thereafter, a show cause notice was issued as
Ext.P15, wherein he was asked to show cause as to why a penalty of
realisation of difference in value of the land assessed by the Village
Officer between the market value and the fair price value, that is
Rs.39,438/- should not be recovered from him. He objected to the said
findings by submitting a reply Ext.P16. Finally by Ext.P17, the proposal
was confirmed by assessing the loss to the tune of Rs.39,438/-. He filed
an appeal by Ext.P18. The appeal also stands rejected by Ext.P19.
4. The learned counsel appearing for the petitioner submitted
that in the light of the finality attached to the proceedings initiated on
the first memo of charges reflected in Exts.P7 to P9, there cannot be
any fresh enquiry into the matter, that too on the same set of
allegations. It is therefore, submitted that the proceedings resulting in
Exts.P17 and P19 are without jurisdiction. He relies upon the principles
laid down by this Court in Thankappan Unnithan V.State of Kerala
1992 (1)KLT 263 and a decision of the Apex Court in Lt.Governor,
Delhi and Others v. HC Narinder Singh (2004) 13 Supreme Court
Cases 342 .
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5. The learned counsel appearing for the petitioner also
submitted that even going by the report, the enquiry officer was of the
view that the action taken by the petitioner in relying upon the
certificates of the Village Officer was correct. It was reported by the
enquiry officer that the Regional Manager cannot be blamed for
accepting the land value as fixed by the competent revenue authorities.
It was also reported that there is no evidence of any mal practice or
corruption in the deal.
6. This Court in Thankappan Unnithan v. State of Kerala
1992 (1) KLT 263 held that “Article 20 guarantees immunity against
`prosecution and punishment for the same offence’ for a second time. In
the case on hand, there was no prosecution or punishment. However,
postulates of fair action, require that a person ought not to suffer the
same consequence twice. The Government may differ from findings
made by the disciplinary authority and reach a different conclusion on
the same facts. It cannot hold another enquiry to reach another
conclusion.” Finally it was held that the Government re opened the
matter, held another enquiry and came to an independent conclusion,
where principles of fair- play interdict such a course. In the decision of
the Apex Court in Lt.Governor, Delhi and Others v. HC Narinder
Singh, (2004) 13 Supreme Court Cases 342, it was held that the
second proposed action based on the same cause of action proposing to
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deny promotion or reversion is contemplated under the impugned show
cause notice. The second penalty based on the same cause of action
would amount to double geopardy. In the light of the above dictum, the
proceedings culminated in Exts.P17 and P19 cannot be supported. The
earlier proceedings which resulted in Ext.P7, quantified the total
liability as Rs.26,875/-. He was made liable to pay the amount, only if
the loanee fails to replay the amount. As directed in Ext.P7, he filed an
affidavit agreeing for the said course as per Ext.P8. Since, the recovery
was not effected steps continued to get the amount from him. By Ext.P9,
it was informed that an amount of Rs.13,438/- is being recovered from
the salary. There is no contention that these were set aside by any
higher authority to order a de novo enquiry. The learned counsel
appearing for the respondents submitted that fresh memo of charges
were issued based on a complaint. The memo of charges shows that the
allegations are identical. They are issued on the same set of facts. If
that be so, the second disciplinary action on the same set of facts will
result in double geopardy. A new punishment also is imposed, to the
effect that he is made to bear the difference in the market value to the
tune of Rs.39,438/-.
7. In that view of the matter, Exts.P17 and P19 are quashed. In
Ext.P7, he was directed to file an affidavit to the effect that he would
pay the Corporation a sum of Rs.26,875/- if the assignee fails to pay the
dues in full or in case the land in question fail to fetch the amount equal
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to the loan amount when it is sold in public auction due to the failure of
the assignee to pay the amount. That was implemented by Ext.P9 by
effecting the recovery. The contingencies covered by Ext.P7 have not
arisen at all. Therefore, the recovery ordered in Ext.P9 is premature.
Pending this writ petition, the DCRG due to the petitioner after
retaining the amount of Rs.39,438/- has been released. In view of the
findings rendered to above, the balance amount of Rs.39,438/- has to be
released to him. But if the contingency contemplated in Ext.P7 arises
amount of liability as fixed could be recovered from the petitioner.
Therefore, the right of the respondents to recover the same from the
petitioner is protected by the said proceedings. The respondents
shall release the balance amount of Rs.39,438/- within a period of six
weeks from the date of receipt of a copy of this judgment. The writ
petition is allowed as above. No costs.
T.R.RAMACHANDRAN NAIR,
JUDGE
bps