{"id":183271,"date":"2010-01-18T00:00:00","date_gmt":"2010-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-k-prabhakaran-vs-k-s-f-e-on-18-january-2010"},"modified":"2015-04-22T19:25:15","modified_gmt":"2015-04-22T13:55:15","slug":"k-k-prabhakaran-vs-k-s-f-e-on-18-january-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-k-prabhakaran-vs-k-s-f-e-on-18-january-2010","title":{"rendered":"K.K.Prabhakaran vs K.S.F.E on 18 January, 2010"},"content":{"rendered":"
Kerala High Court<\/div>\n
K.K.Prabhakaran vs K.S.F.E on 18 January, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nOP.No. 38956 of 2001(K)\n\n\n\n1. K.K.PRABHAKARAN\n                      ...  Petitioner\n\n                        Vs\n\n1. K.S.F.E.\n                       ...       Respondent\n\n                For Petitioner  :SRI.S.V.BALAKRISHNA IYER (SR.)\n\n                For Respondent  :SRI.A.M.SHAFFIQUE\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :18\/01\/2010\n\n O R D E R\n                       S. SIRI JAGAN, J.\n               - - - - - - - - - - - - - - - - - - - - - - -\n                     O.P. No.38956 of 2001\n               - - - - - - - - - - - - - - - - - - - - - - -\n          Dated this the 18th day of January, 2010\n\n\n                         J U D G M E N T\n<\/pre>\n
     The petitioner was a Senior Manager of the<\/p>\n
1st respondent Kerala State Financial Enterprises Ltd. On<\/p>\n
25.04.1994, he was the Branch Manager of Kannur-I<\/p>\n
branch. At that time, one of the subscribers of a chitty<\/p>\n
being conducted by that branch, offered his property as<\/p>\n
security for repayment of chitty installments in respect of a<\/p>\n
chit auctioned in his favour. As the Branch Manager, the<\/p>\n
petitioner had to inspect the property offered as security<\/p>\n
and value the same.         The petitioner submitted Ext.R3(a)<\/p>\n
valuation report dated 01.06.1994. The property comprised<\/p>\n
of 1.5 acres. In the petitioner’s valuation he stated that<\/p>\n
there is a cartable road to the property and there were 75<\/p>\n
arecanut trees and 100 coconut trees in the property. He<\/p>\n
O.P. No.38956 of 2001
\n                               -2-<\/span><\/p>\n
valued the property at Rs.7.5 lakhs and opined that in a<\/p>\n
distress sale it would fetch Rs. 5 lakhs. On the basis of his<\/p>\n
report, an amount of Rs.2.5 lakhs was released to the<\/p>\n
subscriber. On 04.06.1994 the petitioner was transferred<\/p>\n
from that branch. The subscriber did not pay the balance<\/p>\n
installments. Recovery proceedings were initiated against<\/p>\n
him for recovery of the amounts due from him in respect of<\/p>\n
the chitty.       In the recovery proceedings, the property<\/p>\n
mortgaged as security was brought to sale. Nobody was<\/p>\n
willing to purchase the same although five persons were<\/p>\n
present at the auction.      The Village Officer valued the<\/p>\n
property only at Rs.45,000\/-, which apparently was known<\/p>\n
to the prospective bidders. It was found that improvements<\/p>\n
mentioned by the petitioner in his report were not actually<\/p>\n
there in the property.        The cartable road leading to<\/p>\n
property, mentioned in this report was also found to be non-<\/p>\n
existent. On the allegation that the petitioner colluded with<\/p>\n
the subscriber to over-value the property, Ext.P2 charge<\/p>\n
memo was issued to the petitioner. Petitioner filed Exts.P3<\/p>\n
O.P. No.38956 of 2001
\n                                 -3-<\/span><\/p>\n
& P4 explanations. The tenor of the explanations was that<\/p>\n
he misidentified the property since the party misled him,<\/p>\n
although he does not categorically say so. His contention<\/p>\n
was that the party showed him the wrong property and<\/p>\n
therefore probably there was a misidentification of the<\/p>\n
property. Dissatisfied with his explanation, an enquiry was<\/p>\n
ordered. Initially the Regional Manager was appointed as<\/p>\n
the Enquiry Officer.        Later on he was changed and an<\/p>\n
Advocate was appointed as the Enquiry Officer.           He<\/p>\n
conducted the enquiry, took evidence and submitted Ext.P8<\/p>\n
report finding the petitioner guilty of the charges levelled<\/p>\n
against him.        Petitioner was given opportunity to show<\/p>\n
cause against the proposed penalty of dismissal from<\/p>\n
service. Petitioner filed Ext.P9 reply to the same. However<\/p>\n
by Ext.P.10 order, the disciplinary authority, namely the<\/p>\n
Managing Director agreed with the findings of the Enquiry<\/p>\n
Officer to find the petitioner guilty of the charges of<\/p>\n
misconduct. By Ext.P12 order, the punishment of removal<\/p>\n
from service was imposed on the petitioner. Petitioner filed<\/p>\n
O.P. No.38956 of 2001
\n                                -4-<\/span><\/p>\n
Ext.P13 appeal before the Board of Directors of the 1st<\/p>\n
respondent. The appeal was placed before the Board of<\/p>\n
Directors and Ext.P14 notice dated 25.01.2000 was issued<\/p>\n
to the petitioner for a hearing on 02.02.2000 on the appeal.<\/p>\n
On 02.02.2000 the petitioner was heard by the Board of<\/p>\n
Directors. Petitioner contends that thereafter the 4th<\/p>\n
respondent Managing Director had a discussion with the<\/p>\n
subscriber and reached a settlement with him. Subscriber<\/p>\n
was offered an one time settlement, on payment of which<\/p>\n
the security documents were offered to be released, as per<\/p>\n
the agreement reached in the discussion held on<\/p>\n
15.02.2000. According to the petitioner, in that discussion<\/p>\n
although the petitioner was also directed to be present, he<\/p>\n
was not allowed to participate in the discussion and he was<\/p>\n
kept out.        The petitioner came to understand that on<\/p>\n
28.02.2000 the Board of Directors had adopted a resolution,<\/p>\n
in which it was decided to accept Rs.3 lakhs from<\/p>\n
subscriber and to return the title deeds of the property<\/p>\n
given as security. The petitioner also learnt that it was<\/p>\n
O.P. No.38956 of 2001
\n                                      -5-<\/span><\/p>\n
decided to obtain an indemnity bond from the petitioner to<\/p>\n
make good the loss caused to the company on account of<\/p>\n
the over-valuation.         But that board resolution was not<\/p>\n
communicated to the petitioner.                   According to the<\/p>\n
petitioner, petitioner was constantly contacting the 4th<\/p>\n
respondent requesting for and enquiring about the orders in<\/p>\n
the appeal. The petitioner expected release of his terminal<\/p>\n
benefits.     When nothing happened for a long time, the<\/p>\n
petitioner filed this writ petition on 10.12.2001. In the writ<\/p>\n
petition, respondents filed a counter affidavit dated<\/p>\n
19.06.2002, wherein while controverting the contention of<\/p>\n
the petitioner, they produced Ext.R3 (c) resolution adopted<\/p>\n
by the Board of Directors in the petitioner’s appeal, in<\/p>\n
which the following decisions were taken :<\/p>\n
            “The Board considered the note. During discussion the M.D.
\n      explained that he has discussed the issue of default clearance with
\n      the mortgager, Sri. Shaju and also with Sri. K.K. Prabhakaran, M.D.
\n      also explained that Sri. Shaju has promised to pay Rs.3,00,000\/- on
\n      condition that the title deed of the property mortgaged has to be
\n      given back to him or to the purchaser of the property as they have
\n      entered into an agreement to transfer the property concerned.
\n      Shri. Shaju also explained that he has no other source\/means to pay
\n      the balance amount of default. The total amount to be realised in the
\n      above RR account come to Rs.5,30,000\/- as on 30\/9\/99. The Board
\n      after discussion decided as follows:\n<\/p><\/blockquote>\n
O.P. No.38956 of 2001
\n                                    -6-<\/span><\/p>\n
      1.    To authorize the Managing Director to collect Rs.3,00,000\/- and
\n            release the property document as requested.<\/p>\n
      2.    To obtain an undertaking as well as an indemnity bond from
\n            Sri.K.K. Prabhakaran to compensate the loss to the Company
\n            amounting to Rs.2,30,000\/-\n<\/p>\n
      3.    Decided to realise the default amount with interest upto
\n            30\/9\/1977.\n<\/p>\n
      4.    To exempt collection of 2 =% other charges on RR collection.<\/p>\n
      5.    To authorise the Managing Director to give a proposal in the
\n            next    Board  meeting     regarding  the   reinstatement    of
\n            Sri. K.K. Prabhakaran.”\n<\/p>\n<\/p>\n
      2.    Thereafter the matter came up for hearing before<\/p>\n
a learned Single Judge of this court on 26.03.2008 and<\/p>\n
03.04.2008. According to the petitioner, the matter was<\/p>\n
fully heard and the learned Single Judge expressed an<\/p>\n
opinion that for over-valuation no disciplinary proceedings<\/p>\n
would lie under the standing orders applicable for want of<\/p>\n
any specific provision in the same making the same a<\/p>\n
misconduct. In such circumstances, the court adjourned the<\/p>\n
matter treating the same as part heard, to be heard after<\/p>\n
vacation so as to enable the respondents to explore the<\/p>\n
possibility of an amicable settlement in the matter.<\/p>\n
However, thereafter, instead of settling the matter, the<\/p>\n
O.P. No.38956 of 2001
\n                                       -7-<\/span><\/p>\n
Board of Directors passed Ext.P21 order, dismissing the<\/p>\n
petitioner’s appeal. Consequently, the petitioner amended<\/p>\n
the writ petition including a challenge against Ext.P21 also.<\/p>\n
Petitioner seeks the following reliefs:\n<\/p>\n
      “i)  issue a writ of certiorari or any other appropriate writ or order
\n           quashing Exhibit P-8 and Exhibit P-12;\n<\/p><\/blockquote>\n
      ii)   issue a writ of mandamus or any other appropriate writ, order or
\n            direction, directing the Respondents to pay the entire terminal
\n            benefits and suitable compensations to the petitioner forthwith;\n<\/p><\/blockquote>\n
      iii)  issue a writ of mandamus or any other appropriate writ or
\n            direction directing the respondents to notionally grant the
\n            petitioner promotion to the post of Regional Manager from the
\n            date on which promotion fell due, treat him to be in service
\n            between 31-7-2000 and          30-9-2001 and pay arrears of salary
\n            and benefits of pay revision on that basis forthwith;\n<\/p><\/blockquote>\n
      iiiA) issue a writ of certiorari or any other writ, order or direction
\n            quashing Ext.P15;\n<\/p><\/blockquote>\n
      iiiB) issue a writ of certiorari or any other appropriate writ, order
\n            or direction quashing Ext.P21; and<\/p>\n<\/blockquote>\n
      iv) Award the petitioner the cost of this Original Petition.”<\/p><\/blockquote>\n
      3.    The petitioner’s contention is that although the<\/p>\n
allegation against the petitioner was that he over-valued the<\/p>\n
property in collusion with the subscriber, no evidence was<\/p>\n
led in the enquiry to prove the same, despite which in<\/p>\n
Ext.P8 enquiry report, the enquiry officer entered a vague<\/p>\n
finding that “the delinquent might have over-valued the<\/p>\n
O.P. No.38956 of 2001
\n                                -8-<\/span><\/p>\n
property in order to please the party for reasons best known<\/p>\n
to him”. Thereafter the enquiry officer found the petitioner<\/p>\n
guilty of all the three charges of misconduct levelled against<\/p>\n
him.     Petitioner would contend that the finding in the<\/p>\n
enquiry is totally vitiated since it is based on no evidence,<\/p>\n
but purely on conjectures and surmises.        The petitioner<\/p>\n
points out that the respondents were not also able to<\/p>\n
identify the property in question properly, since at different<\/p>\n
times, different reports were obtained by the respondents,<\/p>\n
containing         contradictory   details  regarding      the<\/p>\n
improvements in the property. According to the petitioner<\/p>\n
the valuation report of the Village Officer, which is now<\/p>\n
produced as Ext.R3 (b) along with the counter affidavit, was<\/p>\n
never produced in evidence in the enquiry, nor was the<\/p>\n
Village Officer who prepared the same examined as a<\/p>\n
witness. Petitioner points out that in Ext.R3 (b) itself, the<\/p>\n
Village Officer had noted 24 coconut trees aged four years<\/p>\n
and 30 cashew trees aged five years. But in Ext.P2 it is<\/p>\n
mentioned that as per the report of the Deputy Tahsildar<\/p>\n
O.P. No.38956 of 2001
\n                                -9-<\/span><\/p>\n
and Regional Manager no such improvements noted by the<\/p>\n
petitioner in his report were existing in the property.<\/p>\n
Petitioner points out that the report of the Deputy Tahsildar<\/p>\n
which is relied upon for this purpose, which is Ext.P7, did<\/p>\n
not deal with any improvements as existing or not existing<\/p>\n
in the property. In fact that report was only about the<\/p>\n
reasons why the auction could not take place and not at all<\/p>\n
concerned with the description of the property as such and<\/p>\n
does not give any valuation of the property. He points out<\/p>\n
that in the report of the Regional Manager, who inspected<\/p>\n
the property, who was examined as MW5 there were only<\/p>\n
about 50 plantains, 5 cashew nut trees and 50 arecanut<\/p>\n
plants. According to the petitioner these would show that<\/p>\n
respondents themselves were not also able to identify the<\/p>\n
properties properly.         Petitioner contends that even<\/p>\n
assuming that the petitioner was guilty of anything, it can<\/p>\n
only be of committing the mistake in properly identifying or<\/p>\n
valuing the property and he cannot be found guilty of<\/p>\n
anything else.       Petitioner points out that in the charge<\/p>\n
O.P. No.38956 of 2001
\n                              -10-<\/span><\/p>\n
memo there was no charge for even negligence. He also<\/p>\n
submits that in Ext.P16 Standing Orders, over-valuation of a<\/p>\n
property as such is not shown as a misconduct at all.<\/p>\n
Therefore the petitioner could not have been found guilty of<\/p>\n
any of the misconduct detailed in Ext.P2 is his contention.<\/p>\n
He further points out that over-valuation is not a rare thing<\/p>\n
in the 1st respondent’s establishment.         The Board of<\/p>\n
Directors themselves, in Ext.P18, recognized the fact that<\/p>\n
such over-valuation is likely to occur in the course of normal<\/p>\n
valuation itself. Therefore, according to the petitioner, over-<\/p>\n
valuation cannot be considered as a misconduct at all.<\/p>\n
Again the petitioner submits that in fact as evidenced by<\/p>\n
Exts.P19 & P20, 84 similarly situated senior managers, who<\/p>\n
were found to have over-valued properties, were not<\/p>\n
proceeded against at all and their retirement benefits were<\/p>\n
ordered to be released after deducting a part of the loss<\/p>\n
caused to the 1st respondent on account of the over-<\/p>\n
valuation, therefrom. The petitioner also alleges malafides<\/p>\n
on the part of the 4th respondent in initiating the<\/p>\n
O.P. No.38956 of 2001
\n                               -11-<\/span><\/p>\n
disciplinary action. According to him, the petitioner was<\/p>\n
second in the seniority list of Senior Managers and the 4th<\/p>\n
respondent wanted a person lower down in the seniority list<\/p>\n
to be promoted over the seniors, for which purpose he<\/p>\n
deliberately instituted the disciplinary proceedings against<\/p>\n
the petitioner as also the first person in the seniority list.<\/p>\n
The first person in the seniority list challenged the same in<\/p>\n
W.P.(C)      No.34691\/2004,     in  which   the   disciplinary<\/p>\n
proceedings were quashed. He further submits that the<\/p>\n
malafides is clear from the fact that in Ext.R3 (c), the<\/p>\n
Managing Director was directed to give a proposal for<\/p>\n
reinstatement of the petitioner, which he never did and did<\/p>\n
not even communicate Ext.R3 (c) to the petitioner.<\/p>\n
According        to  the petitioner the   Manging    Director<\/p>\n
deliberately did not communicate Ext.R3 (c) to the<\/p>\n
petitioner so as to keep the petitioner away from service.<\/p>\n
According to the counsel for the petitioner from the above<\/p>\n
facts coupled with the fact that in the entire history of the<\/p>\n
1st respondent, no officer was ever proceeded against for<\/p>\n
O.P. No.38956 of 2001
\n                              -12-<\/span><\/p>\n
over-valuation of property would lead to the irresistible<\/p>\n
inference that the entire disciplinary proceedings against<\/p>\n
the petitioner was actuated by malafides on the pat of the<\/p>\n
4th respondent.\n<\/p>\n
      4.    Therefore the petitioner submits that the entire<\/p>\n
disciplinary proceedings against him is liable to be quashed<\/p>\n
and he should be directed to be given all benefits due to him<\/p>\n
till he attained superannuation on 30.09.2001.<\/p>\n
      5.    With the help of the counter affidavit filed by the<\/p>\n
4th respondent on behalf of all the respondents, the<\/p>\n
respondents would deny the allegations of the petitioner.<\/p>\n
According to the respondents, it was the duty of the<\/p>\n
Manager to value the property offered as security after<\/p>\n
identifying the property properly.    They submit that the<\/p>\n
petitioner himself had admitted that he committed a grave<\/p>\n
error in identifying the property and consequently in the<\/p>\n
valuation itself.     According to them, the fact that the<\/p>\n
petitioner himself admits that he blindly trusted the<\/p>\n
subscriber, would go to show that there was collusion by<\/p>\n
O.P. No.38956 of 2001
\n                              -13-<\/span><\/p>\n
showing an inflated value for the property so as to enable<\/p>\n
the subscriber to get the auction amount of the chitty on the<\/p>\n
security of a property the market value of which was far<\/p>\n
below the amounts due from the subscriber.        Therefore,<\/p>\n
according to them, collusion between the subscriber and<\/p>\n
the petitioner is clearly evident, which only has been found<\/p>\n
by the Enquiry Officer. They contend that, even assuming<\/p>\n
that collusion could not be proved, gross negligence, which<\/p>\n
is one of the misconducts enumerated in the Standing<\/p>\n
Orders, has clearly been proved, for which itself the<\/p>\n
petitioner is liable to be imposed with the penalty of<\/p>\n
removal from service. They therefore argue for sustaining<\/p>\n
the impugned orders.\n<\/p>\n
      6.    I have considered rival contentions in detail. At<\/p>\n
the outset I am of the opinion that it was not proper, if not<\/p>\n
illegal, for the respondent to pass Ext.P-21 order, when the<\/p>\n
original petition was part heard by a learned Single Judge of<\/p>\n
this court. From the records of this case I find that the<\/p>\n
original petition was posted for hearing on 26.03.2008 on<\/p>\n
O.P. No.38956 of 2001
\n                             -14-<\/span><\/p>\n
which date it was directed to be posted for hearing on top of<\/p>\n
the list on 31.03.2008.     The same again came up on<\/p>\n
03.04.2008. On that date, the matter was part heard and<\/p>\n
was posted to 26.05.2008 after vacation. It is after those<\/p>\n
proceedings, Ext.P21 order was passed on 20.05.2008. Of<\/p>\n
course the learned counsel for the respondents would<\/p>\n
submit that in the course of arguments on 03.04.2008 it was<\/p>\n
noticed that Ext.R3 (c) was not a final order in the appeal<\/p>\n
filed by the petitioner and therefore the Board of Directors<\/p>\n
was expected to pass a final order in his appeal. It is under<\/p>\n
the said circumstances that Ext.P-21 final order was passed.<\/p>\n
But after having taken a stand in their counter affidavit that<\/p>\n
Ext.R3 (c) order was the order passed in the appeal, which<\/p>\n
was passed as early as on 07.03.2000, they could not have<\/p>\n
passed further orders without first informing this court.<\/p>\n
I also note that the 4th respondent has not properly denied<\/p>\n
the averment of the petitioner that Ext.R3 (c) was not<\/p>\n
communicated to the petitioner. They have not also given<\/p>\n
any satisfactory explanation for the change of mind in<\/p>\n
O.P. No.38956 of 2001
\n                                      -15-<\/span><\/p>\n
passing Ext.P-21 order on 09.05.2008 contrary to Ext.R3<\/p>\n
(c),   after     more      than      8    years,      that      too    without<\/p>\n
communicating Ext.R3 (c) to the petitioner and ascertaining<\/p>\n
from him as to whether he is agreeable for the course of<\/p>\n
action suggested therein.\n<\/p>\n
      7.    Ext.P2 is the memo of charges, which contains<\/p>\n
three charges and reads as follows:\n<\/p>\n
      “1.   That you had with ulterior motive cheating the company, over
\n            valued the above property for Rs.7.5 lakhs, and the forced sale
\n            value was arrived at Rs.5\/- lakhs and thus flushed out company
\n            funds to outsiders.\n<\/p><\/blockquote>\n
      2.    That you in collusion with the owner of the property and with
\n            malafide intention reported vide Ref. No.(1) above that there was
\n            a cartable road providing direct access to the property, which was
\n            not actually existed at the time of your visit to the property.\n<\/p><\/blockquote>\n
      3.    That you had also reported vide reference cited (1) above, that
\n            there were 75 number of arecanut trees and 100 numbers coconut
\n            trees in the property. But, in fact, no such improvements were
\n            existing in the property.”\n<\/p><\/blockquote>\n
The serious charge therein was that the petitioner and the<\/p>\n
owner of the property had colluded with each other for<\/p>\n
overvaluing the property with the intention of cheating the<\/p>\n
company. But in Ext.P8 enquiry report, I do not find that the<\/p>\n
enquiry officer has referred to any evidence in support of<\/p>\n
the finding that the petitioner was guilty of any collusion<\/p>\n
O.P. No.38956 of 2001
\n                             -16-<\/span><\/p>\n
with the subscriber, pursuant to which, the petitioner has<\/p>\n
overvalued the property to help the subscriber. In fact the<\/p>\n
finding of the enquiry officer itself is thus: “Delinquent<\/p>\n
might have over valued the property in order to please the<\/p>\n
party for reasons best known to him”. From this sentence it<\/p>\n
is abundantly clear that there was no evidence whatsoever<\/p>\n
to find that the petitioner had overvalued the property in<\/p>\n
collusion with the subscriber. In fact, there was no<\/p>\n
reference in the enquiry report to any deposition by any of<\/p>\n
the management’s witnesses or to any other material on<\/p>\n
record to the effect that there was collusion between the<\/p>\n
petitioner and the subscriber.   As such, the finding of the<\/p>\n
enquiry officer as noted above is clearly without any<\/p>\n
evidence in support of the same. As such, that finding was<\/p>\n
based on no evidence and therefore, it is totally perverse. In<\/p>\n
fact in the arguments advanced by the respondents, they<\/p>\n
have emphasised the fact that the petitioner had noted 100<\/p>\n
coconut trees and 50 arecanut trees in the property and<\/p>\n
also a cartable road to the property, which were not present<\/p>\n
O.P. No.38956 of 2001
\n                              -17-<\/span><\/p>\n
in the reports of the Village Officer, who submitted Ext.R3<\/p>\n
(b) report, and the officer of the 1st respondent who<\/p>\n
conducted an inspection in this respect. In this context, I<\/p>\n
find an interesting circumstance. In Ext.P2 charge memo,<\/p>\n
report from the Deputy Tahsildar dated 30.12.1997 is relied<\/p>\n
upon and in the third charge, they have stated that “in fact<\/p>\n
no such improvements were existing in the property”.<\/p>\n
Strangely, in Ext.P7, which is the report of the Deputy<\/p>\n
Tahsildar referred to in the charge memo, he has not dealt<\/p>\n
with the improvements in the property or the valuation of<\/p>\n
the property. He has not stated anything whatsoever<\/p>\n
regarding trees in the property. On the other hand, he has<\/p>\n
stated therein that in the auction conducted on the<\/p>\n
particular day, although five persons were present to take<\/p>\n
part in the auction, in spite of the upset price having been<\/p>\n
reduced to Rs.3,75,000\/- from Rs.5,00,000\/-, none of them<\/p>\n
participated in the auction. He specifically stated that their<\/p>\n
non-participation was because they knew about the<\/p>\n
valuation of the Village Officer as Rs.45,000\/-. Ext.R3(b)<\/p>\n
O.P. No.38956 of 2001
\n                              -18-<\/span><\/p>\n
report of the Village Officer has not even been brought on<\/p>\n
record in the enquiry. The Village Officer was not examined<\/p>\n
as a witness also in the enquiry. It is interesting to note that<\/p>\n
in Ext.R3(b) report of the Village Officer, he refers to 24<\/p>\n
coconut plants, having age of 4 years and 30 cashew trees<\/p>\n
of 5 years of age. But MW5-Mohanrajan, who is stated to<\/p>\n
have inspected the property, reported that there were 50<\/p>\n
numbers of plantains, 5 cashew trees and 50 arecanut<\/p>\n
plants. As such, I doubt very much whether all these<\/p>\n
persons were able to identify the particular property<\/p>\n
properly. The tenor of the petitioner’s reply is to the effect<\/p>\n
that he blindly trusted the subscriber as regards the<\/p>\n
identity of the property and he valued the property he<\/p>\n
actually inspected. Of course, the petitioner should have<\/p>\n
identified the property with the help of an independent<\/p>\n
authority as well, apart from the subscriber, failure to do<\/p>\n
which certainly is a fault on his part. But that does not lead<\/p>\n
to any inference to the effect that he had done it<\/p>\n
deliberately in collusion with the subscriber, to help the<\/p>\n
O.P. No.38956 of 2001
\n                                     -19-<\/span><\/p>\n
subscriber in any manner. On the other hand, because of<\/p>\n
contradictory reports of various persons regarding the<\/p>\n
improvements available in the property, I am inclined to<\/p>\n
infer that it was very difficult to identify the property. In<\/p>\n
this connection, I note that in the enquiry proceedings<\/p>\n
themselves, the management witnesses candidly admitted<\/p>\n
that there are no guidelines issued by the 1st respondent<\/p>\n
regarding the procedure to be adopted while valuing a<\/p>\n
property for the purpose of accepting the same as security.<\/p>\n
In fact, the petitioner claims to have done more than 1000<\/p>\n
such valuations and this is only time the petitioner was<\/p>\n
accused of over valuation or under valuation. On the other<\/p>\n
hand, in Ext.P18 Board resolution it is specifically accepted<\/p>\n
thus:\n<\/p>\n
      ’16. To consider the release of the withheld terminal benefits of
\n            the retired employees.<\/p><\/blockquote>\n
             The Board considered the proposals submitted and recognized the
\n      fact that Officers performing their duties and engaged in business
\n      development may end up with some of the loans or chitty prize money
\n      sanctioned by them becoming bad or doubtful debts. The Board also
\n      recognized the fact that t Manager doing active business may commit
\n      errors in judgment while valuing property in a few number of cases,
\n      resulting in over valuation of varying degrees. The Board asked the
\n      Managing Director to devise a system for assessing such cases and report<\/p>\n
O.P. No.38956 of 2001
\n                                       -20-<\/span><\/p>\n
      the same to the Board. The Board came to a conclusion that if the
\n      amount involved in such bad and doubtful cases, does not exceed 5% of
\n      the principal amount of the liabilities of loans and chitties sanctioned, the
\n      terminal benefits of the related Managers may be disbursed completely.
\n      Thus the Board resolved as follows:\n<\/p>\n
      Resolution No.3593<\/p>\n
             “Resolved to authorise the Managing Director to devise a system
\n      consisting of two suitable Managers in each region to assess the loans
\n      and chitty payments made by each Manager, under the respective
\n      Regional Manager with in the last year before his retirement and to
\n      disburse his terminal benefits if the bad and doubtful debts arising due to
\n      over valuation, errors in assessing the customers etc. does not exceed
\n      5% of the total liabilities involved in the loans and chitty payments
\n      sanctioned by the concerned Manager.\n<\/p>\n
      Also resolved to entrust the Managing Director to make such
\n      assessments on the following lines:\n<\/p>\n
      a.     To reassess the pending\/sticky loans\/chitty payments, revalue the
\n             properties along with the approved valuer and put up to vetting
\n             committee of Regional Managers and to Senior Managers
\n             concerned with remarks such as variations in valuation, reasons
\n             for the same etc.<\/p>\n
      b.     A two tier vetting committee system for assessing the over
\n             valuations and other irregularities, decided to be implemented by
\n             the Board in their Meeting No.336 conducted on 18.08.2004
\n             (Resolution No.3565) should be implemented forthwith.<\/p>\n
      The above decision taken by the Board with slight modifications, is given
\n      below for further clarity.\n<\/p>\n
      Resolution No.3594<\/p>\n
             “The Board finally resolved that the vetting committee at Regional
\n      level consisting of Regional Manager and two suitable and competent
\n      Senior Managers at his discretion will get the related property valued by
\n      one of Senior Manager in the committee or Regional Manager himself,
\n      along with an approved valuer and assess the extent of defects and
\n      deficiencies in valuation related to the liability and also the volume of
\n      doubtful debts and send the report to the Head Office vetting committee,
\n      consisting of Finance Manager and Business Manager who will make the
\n      final assessment and submit their detailed report to the Managing
\n      Director. Managing Director, in turn, will review and submit the same to
\n      the Board for their decision.”\n<\/p>\n
O.P. No.38956 of 2001
\n                                       -21-<\/span><\/p>\n
      The above resolution\/decision is communicated for information and
\n      immediate further action. Action taken in this regard may be intimated to
\n      the undersigned at the earliest.’<\/p>\n
Coupled with the fact that in Exts.P18, P19 and P20, almost<\/p>\n
84 such cases of over-valuation by various officers of the 1st<\/p>\n
respondent have been noted and all of them have been<\/p>\n
condoned, would go to show that the respondents<\/p>\n
themselves were experiencing considerable difficulties in<\/p>\n
properly valuing the properties without any guidelines and<\/p>\n
expert assistance for the purpose. In such circumstances, I<\/p>\n
am of opinion that even assuming that the petitioner was<\/p>\n
guilty of negligence in identifying the property, that is not<\/p>\n
serious enough to warrant the extreme punishment of<\/p>\n
dismissal from service. As such, the punishment imposed on<\/p>\n
the petitioner is certainly shockingly disproportionate to the<\/p>\n
gravity of the alleged misconduct, even if committed by the<\/p>\n
petitioner.\n<\/p>\n
      8.    In fact, the Board themselves was of the very<\/p>\n
same opinion going by Ext.R3(c) resolution adopted by the<\/p>\n
Board, which has been quoted above. Ext. R3 (c) shows<\/p>\n
O.P. No.38956 of 2001
\n                             -22-<\/span><\/p>\n
that the very intention of the Board was to reinstate the<\/p>\n
petitioner in service, after obtaining an indemnity bond<\/p>\n
from the petitioner to compensate the loss caused to the<\/p>\n
company amounting to Rs.2,30,000\/-. The respondents have<\/p>\n
not been able to satisfy me that the 3rd respondent had<\/p>\n
communicated Ext.R3(c) to the petitioner, which itself is a<\/p>\n
very serious lapse on the part of the 3rd respondent. On the<\/p>\n
other hand, it would give credence to the allegation of the<\/p>\n
petitioner that the 4th respondent who was the then<\/p>\n
Managing Director had some ulterior designs in the matter.<\/p>\n
There was absolutely no reason whatsoever for the 3rd<\/p>\n
respondent not to communicate Ext.R3(c) to the petitioner,<\/p>\n
which if done, the petitioner    could have availed of the<\/p>\n
benefit granted to him by the Board of Directors, which<\/p>\n
obviously the 4th respondent did not do. Apparently till the<\/p>\n
petitioner attained superannuation on 30.9.2001, nothing<\/p>\n
was done by the 4th respondent pursuant to Ext.R3(c)<\/p>\n
resolution adopted by the Board. It is strange to note that<\/p>\n
the Board of Directors, instead of taking the 4th respondent<\/p>\n
O.P. No.38956 of 2001
\n                              -23-<\/span><\/p>\n
to task for having failed to comply with the resolution of the<\/p>\n
Board, has decided to dismiss the appeal itself by Ext.P21<\/p>\n
order, that too, almost eight years after Ext.R3(c)<\/p>\n
resolution. I am at a loss to understand why the Board of<\/p>\n
Directors after first deciding to take a lenient view to pass<\/p>\n
Ext.R3(c), after 8 long years, despite the petitioner making<\/p>\n
a specific averment in the original petition that Ext.R3(c)<\/p>\n
was not communicated to him, without denying the same,<\/p>\n
went on to dismiss the petitioner’s appeal on the ground<\/p>\n
that the amount was not realised from the mortgagor,<\/p>\n
instead of making an enquiry as to why Ext.R3(c) was not<\/p>\n
communicated to the petitioner.\n<\/p>\n
      9.    I note the submission of the learned counsel for<\/p>\n
the 1st respondent that at the time of passing Ext.P21 order,<\/p>\n
the 4th respondent was not the Managing Director. By my<\/p>\n
above findings I mean only that in the next meeting of the<\/p>\n
Board after Ext.R3 (c) the Board ought to have noticed that<\/p>\n
the direction to the 4th respondent in Ext.R3(c) was not<\/p>\n
complied with and the 4th respondent should have been<\/p>\n
O.P. No.38956 of 2001
\n                              -24-<\/span><\/p>\n
taken to task for not complying with Ext.R3 (c) resolution<\/p>\n
within a reasonable time. Having not done so it was<\/p>\n
improper for the Board to dismiss the petitioner’s appeal<\/p>\n
without further reference to him. In such circumstances, I<\/p>\n
am of opinion that the impugned punishment imposed on<\/p>\n
the petitioner is liable to be interfered with. Accordingly, I<\/p>\n
quash Exts.P8 and P12. But since the petitioner has already<\/p>\n
crossed the age of superannuation on 30.9.2001, the relief<\/p>\n
of reinstatement cannot be given to him. But I direct that<\/p>\n
the petitioner would be deemed to have continued in service<\/p>\n
without any punishment till he attained the age of<\/p>\n
superannuation on 30.9.2001. Consequently, he would be<\/p>\n
entitled to all retirement benefits due to him as if he had<\/p>\n
retired from service on 30.9.2001 on attaining the age of<\/p>\n
superannuation. However, I am not inclined to award the<\/p>\n
petitioner full backwages in view of the fact that he is at<\/p>\n
least guilty of some negligence in the matter, although the<\/p>\n
same is not serious enough to warrant the punishment of<\/p>\n
dismissal from service. Accordingly, I direct that the<\/p>\n
O.P. No.38956 of 2001
\n                                -25-<\/span><\/p>\n
petitioner be paid 35% of the wages as backwages. But I<\/p>\n
make it clear that the respondents can recover from the<\/p>\n
backwages, Rs.2,30,000\/-, which is the loss caused to the 1st<\/p>\n
respondent on account of the negligence of the petitioner.<\/p>\n
However, as and when the amounts are realised by the 1st<\/p>\n
respondent from the subscriber, the amount shall be<\/p>\n
reimbursed to the petitioner. But even if the backwages are<\/p>\n
not sufficient to cover the said amount of Rs.2,30,000\/- , no<\/p>\n
further proceedings shall be taken against the petitioner for<\/p>\n
recovery of the balance.\n<\/p>\n
       The original petition is allowed as above.<\/p>\n
                                                 S. SIRI JAGAN
\n                                                     JUDGE<\/p>\n
shg\/sdk+<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court K.K.Prabhakaran vs K.S.F.E on 18 January, 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM OP.No. 38956 of 2001(K) 1. K.K.PRABHAKARAN … Petitioner Vs 1. K.S.F.E. … Respondent For Petitioner :SRI.S.V.BALAKRISHNA IYER (SR.) For Respondent :SRI.A.M.SHAFFIQUE The Hon’ble MR. Justice S.SIRI JAGAN Dated :18\/01\/2010 O R D E R S. SIRI JAGAN, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-183271","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nK.K.Prabhakaran vs K.S.F.E on 18 January, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-k-prabhakaran-vs-k-s-f-e-on-18-january-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.K.Prabhakaran vs K.S.F.E on 18 January, 2010 - 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