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.
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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
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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
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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
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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.