IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14415 of 2009(V)
1. O.M.SEBANNIZA BEEVI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF HIGHER SECONDARY
For Petitioner :SRI.M.A.FIROZ
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :22/10/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.14415/2009-V
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Dated this the 22nd day of October, 2009
J U D G M E N T
The petitioner herein is aggrieved by the proceedings by which
the disciplinary action against her stands finalized as per Ext.P9 order.
As per Ext.P9 a liability to the tune of Rs. 27,000/- is fixed along with
interest @ 12 .5% per annum from the date of purchase till the date of
remittance.
2. The petitioner at the time of filing of the Writ Petition was
the Principal of the Government Higher Secondary School,
Sreekandapuram. Earlier she was the principal of the Tagore
Government Higher Secondary School, Thaliparamba.
3. There was an allegation of misappropriation of fund in
purchasing the Laboratory equipments from the funds allotted to the
School. This was informed to her by Ext.P1 to which an explanation
was submitted as per Ext.P2. Thereafter by Ext.P3 she was ordered to
be transferred. Ext.P5 is the copy of the memo of charges and Ext.P6 is
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an inquiry report relied upon in the memo of charges. The main charges
raised against her in Ext.P5 are that:-
i. While holding the charges of Principal she has failed to see that
the purchase of laboratory equipments were made strictly in accordance
with the Rules,
ii. That she has purchased laboratory equipments at exorbitant rates
leading to monetary loss to Government,
iii . That she has fabricated documents to cover up the lapse, and
iv. That she had tampered with the minutes of the Parent Teachers
Association meeting to cover up the malpractices committed in the purchase
of laboratory equipments using public funds.
These were denied by her in Ext.P7 explanation. It is explained that the
purchase is made as per the decision of the expert committee.
4. The learned counsel for the petitioner submitted that even in
Ext.P6 report there is no finding that the petitioner misappropriated any
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amount or has caused any loss to the Government by her involvement. A
reading of the inquiry report Ext.P6 shows that the inquiry was conducted
on a complaint lodged by P.T.A Vice President and 4 members of the
P.T.A. regarding misappropriation of fund by the principal. The findings
on those are separately entered into in Ext.P6. As regards Item No.1-
misappropriation of public funds, the finding is that on verification of the
available documents produced at the time of inspection, it is found that the
Principal failed to observe Store Purchase Rule and to ensure financial
propriety and the prescribed standard and quality while making the
purchases. There was no proper action from the part of the principal to see
that the purchases were made strictly in accordance with rules and by
avoiding any kind of financial loss to the Government. There is no finding
regarding any misappropriation of funds or that she has caused as financial
loss to the Government.
5. Against allegation No.2 also, that she had purchased laboratory
equipments at higher rate by indulging into corrupt practice, no separate
finding is rendered to the effect of causing any loss to the Government. An
observation is made to the effect that the selected firm supplied all the
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items at an exorbitant rate. The crucial allegation on which the present order
is passed appears to be Item No. 5 in Ext.P6, that she had confessed before
the P.T.A meeting that she had actually received Rs. 27,000/- as
commission in this dealing. The relevant portion of the minutes of the
meeting is to the effect that the commission which could be obtained on
purchase of the articles of the lab is set apart for the purchase of office
articles. The finding is that the said portion of the minutes is scored and
being the custodian of the document the principal has violated the direction
of the Government in this regard, by tampering the minutes. Ultimately, it is
recorded that, “hence the said allegation cannot be neglected”. The opinion
formed in to the effect that the Principal not acted in accordance with the
orders issued by the Government from time to time and also in accordance
with the stores Purchase Rules. The recommendation made in the report is
that disciplinary action has to be initiated against the Principal for financial
misappropriation.
6. The learned counsel for the petitioner submitted that apart from
the Principal, there were other members in the purchase committee and
therefore since the decisions have been taken by the members of the
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committee along with the petitioner, there is no merit in the disciplinary
proceedings initiated by singling out her in the matter. It is submitted that
she had not accepted any personal gifts from the tenderers. Reliance is
placed on Ext.P2 wherein the only statement made by her is that when
purchase order was issued they were requested to donate certain furnitures
and lab articles to the school and the tenderers had supplied furnitures and
lab equipments to the school which were accepted. It is therefore pointed
out that as far as the allegation of misappropriation of funds is concerned
there is no evidence at all. She had not misappropriated any amounts set
apart for the purchase of the required articles. It is also submitted that no
loss has been caused to the Government in the matter. In Ext.P9 the finding
in that misappropriation to the tune of Rs. 27,000/- is established in the
purchase. Accordingly it is fixed as a liability against the petitioner.
7. A reading of the memo of charges along with the statement of
allegations shows that there is no specific allegation that the petitioner had
misappropriated the amount of Rs. 27,000/- or that she had caused loss to
the tune of Rs.27,000/-. The memo of charges is too vague in this regard.
The approach appears to be that the petitioner had violated certain
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procedures in relation to the acceptance of tenders as prescribed by the
relevant orders and as a result of the combined effect of those omissions,
loss has been caused to the Government. Evidently the respondent have
proceeded against the petitioner in terms of Kerala Civil Services
(Classification, Control and Appeal) Rules, 1960. When a disciplinary
action against person is sought to be proceeded with, it is well settled that
the charges should be specific and cannot be vague. The petitioner can
submit explanation only in terms of specific charges raised against her.
Ext.P5 lacks in details of the amount allegedly misappropriated or described
as financial loss. The Government Pleader submitted that the amount
represents cost of the articles which was gifted to the school by the tenderer
and accepted by the petitioner. As regards this also there is no specific
allegation in the memo of charges. Further going by the explanation Ext.P2
the petitioner had only stated that she had not personally received any
articles from the tenderer and the articles like furnitures and lab equipments
were donated to the school itself. There is no contra evidence to find
whether the actual recipient is the petitioner and not the school. In that
view of the matter, it cannot be conclusively held that the petitioner is the
recipient of furniture and lab equipments, the value of which could be
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reckoned as Rs. 27,000/-. Therefore the said contention cannot also be
accepted. It is not a case where the finding is rendered to the effect that by
giving the contract to the highest tenderer loss has been caused to the
Government or the value of the articles supplied is not in tune with the
award amount of the contract. No attempt has been made in the inquiry
report to find out whether any actual loss has been caused to the
Government by the tender. The decision to accept the particular tender in
by the expert committee consisting of different members. It is not a case
where any action has been taken against other members of the purchase
committee also. It is clear that the petitioner has been acting as the member
and convenor of the purchase committee. The copy of the minutes produced
as Exts.P8 and P10 show that the different members of the committee were
also present in the meeting. Ext.P8 will show that in the crucial meeting
which was held on 14.06.2007, which contained a decision regarding the
commission, which is seen struck off, the petitioner was not present also.
8. Therefore it is a case where there is no evidence which
conclusively pin points the guilt of the petitioner, either in regard to the
misappropriation of fund or in relation in regard to the allegation of causing
loss to the Government. The penalty that could be imposed under Rule 11
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(iv) (a) of K.C.S (C.C.&A) Rules, especially is :
” Recovery from pay of the whole or part of any
pecuniary loss caused to a State Government or the
Central Government or to a local authority by negligence
or breach of orders”.
9. Here the crucial finding is that the petitioner had misappropriated
an amount of Rs. 27,000/-. In the absence of any evidence to prove this
allegation, the finding in the report Ext.P6 or in Ext.P9 that the petitioner is
answerable for misappropriation of the funds to the tune of Rs. 27,000/-
cannot stand scrutiny. It is arrived at only on the basis of conjunctures and
surmises. Ext.P6 is based on a surprise inspection, in which the opinion in
that Stores Purchase Rules have not been followed even in respect of Para 5
in Ext.P6 regarding the receipt of commission, the observation is only that
the “said allegation cannot be neglected”. This will not substitute for a
proof of guilt in a disciplinary inquiry. Therefore, the very basis of the
order by which liability to the tune of Rs. 27,000/- is imposed against the
petitioner falls to the ground. In that view of the matter Ext.P9 cannot be
supported. Hence Writ Petition is allowed. Ext.P9 is quashed.
10. The learned Government pleader then submitted that permission
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may be accorded to the respondents to proceed against the petitioner afresh
in the matter. Since the disciplinary action itself was initiated based on the
memo of charges which concluded in the order Ext.P9 and the entire action
cannot be supported for want of proper evidence and materials, said request
cannot be entertained, and hence rejected. There were other members in the
Expert Committee which decided to accept the tender. No costs.
(T.R. Ramachandran Nair, Judge.)
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