Baby John v. Director, Institute of Human Resources Development and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 15TH DAY OF JUNE 2012/25TH JYAISHTA 1934S** ## **WP(C).No. 4722 of 2008 (K)** ## **------------------------------------** ## **PETITIONER(S): ------------------------** **BABY JOHN, SENIOR OFFICE ASSISTANT, COLLEGE OF ENGINEERING ADOOR.** ## **BY ADV. SRI.V.PHILIP MATHEW** **RESPONDENT(S):** - **--------------------------** **1. THE DIRECTOR, INSTITUTE OF HUMAN RESOURCES DEVELOPMENT PRAJO'E TOWERS, VAZHUTHACAUD THIRUVANANTHAPURAM-695 014.** **2. INSTITUTE OF HUMAN RESOURCES DEVELOPMENT (ESTABLISHED BY THE GOVT. OF KERALA), PRAJO'E TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014 REPRESENTED BY ITS DIRECTOR.** **3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION DEPARTMENT, KERALA GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM.** **4. THE PRINCIPAL, COLLEGE OF ENGINEERING, ADOOR.** **R1 BY SRI. N. N. SUGUNAPALAN, SC, IHRDE SRI. S. SUJIN, SC, IHRD SRI. M. K. CHANDRAMOHAN DAS, SC, IHRD R3 BY GOVERNMENT PLEADER SRI. T.R. RAJESH R4 BY ADV. SRI. V. RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DCS** **WP(C).No. 4722 of 2008 (K)** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :-** - **EXT.P1 COPY OF MEMO OF CHARGES DATED 19.03.2003 ISSUED BY THE IST RESPONDENT** - **EXT.P2 COPY OF THE REPLY DATED 28.03.2002 GIVEN BY THE PETITIONER TO EXHIBIT P1** - **EXT.P3 COPY OF THE ORDER NO. E1/965/ 2002/HRD DATED 22.11.2005 ISSUED BY THE IST RESPONDENT** - **EXT.P4 COPY OF THE REPRESENTATION DATED 04.01.2007 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT** **EXT.P5 COPY OF THE ORDER NO. EA2/10376/2004/HRD DATED 16.12.2006 ISSUED BY THE IST RESPONDENT** - **EXT.P6 COPY OF THE COMMUNICATION NO. EA2/496/2007/HRD DATED 02.05.2007 ISSUED BY THE IST RESPONDENT** - **EXT.P7 COPY OF THE LETTER NO. 18941/J2/07/H.EDN DATED 11.12.2007 ISSUED BY THE 3RD RESPONDENT** - **EXT.P8 COPY OF THE ORDER NO. E5/10376/2004/HRD DATED 26.04.2005** - **EXT.P9 COPY OF THE LETTER DATED 8.6.2005 FROM THE FIRST RESPONDENT EXT.P10 COPY OF THE PROCEEDINGS DATED 22.03.2006 ISSUED BY FIRST RESPONDENT** ## **RESPONDENTS' EXHIBITS :-** - **EXT.R1(a) COPY OF THE LETTER DATED 28.03.2002 GIVEN BY THE PETITIONER TO THE IST RESPONDENT** - **EXT.R1(b) COPY OF THE CIRCULAR NO. E5/100376/2004/HRD DATED 25.10.2004 ISSUED BY THE IST RESPONDENT INSTITUTION** - **EXT.R1(c) COPY OF THE ORDER NO. E1/965/2002/HRD DATED 22.11.2005 ISSUED BY THE IST RESPONDENT INSTITUTION** - **EXT.R1(d) COPY OF THE MINUTES OF THE SCREENING COMMITTEE REPORT DATED 11.12.2006** ## **/TRUE COPY/** ## **P.A. TO JUDGE** **DCS** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.4722 of 2008 ---------------------------------------------Dated this the 15[th] day of June, 2012 ## **JUDGMENT** The petitioner was originally appointed as a Junior Office Assistant in the College of Engineering, Adoor under the 2[nd] respondent on adhoc basis on 1.4.1996. His services were regularised with effect from 1.9.1998. By Ext.P1 memo of charges, disciplinary proceedings were initiated against the petitioner. The petitioner submitted Ext.P2 reply. By Ext.P3 order dated 22.11.2005, the petitioner was held guilty of the charges levelled against him and the punishment of barring of increment for a period of one year without cumulative effect and recovery of loss caused to the College on account of the misconducts committed by the petitioner were imposed as punishment on the petitioner. It was also directed that the petitioner shall be kept away from duties invoking handling of cash for a period of three years from the date of the order. While, the disciplinary proceedings were pending, the scrutiny committee appointed for selecting suitable persons for promotion W.P.(C)No.4722/08 2 to the post of Senior Office Assistant overlooked the petitioner for promotion on the ground of pendency of the disciplinary proceedings. Later on, after passing of Ext.P3 order, the scrutiny committee considered the case of the petitioner and taking into account the punishment imposed on the petitioner, found the petitioner unfit for promotion. When vacancies again arose, the scrutiny committee again considered the petitioner for promotion and he was promoted with effect from 16.12.2006. The petitioner filed Ext.P4 representation seeking retrospective promotion with effect from 26.4.2005. The same was rejected by the 1[st] respondent by Ext.P6 order dated 2.5.2007. Against the same, the petitioner filed representation before the Government and by Ext.P7 order dated 11.12.2007, the Government rejected the representation of the petitioner. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs; “i. Issue a writ of certiorari or any other appropriate writ or order quashing Exhibits P3, P6 and P7, ii. Issue a writ of mandamus or any other appropriate writ or order direction commanding 2[nd] respondent to promote the petitioner as Senior Office Assistant with effect from 26/04/2005 and to re-fix W.P.(C)No.4722/08 3 petitioner's seniority in the category of Senior Office Assistant from 26/04/2005, iii. Issue a writ of mandamus or any other appropriate writ or order direction directing the 1[st] respondent to consdier and pass appropriate orders afresh on Exhibit P4 representation.” The petitioner challenges both Ext.P3 order of punishment as well as Exts.P6 and P7 orders on the question of promotion of the petitioner and seniority. 2. According to the petitioner, no enquiry was conducted by examining the witnesses and that there was no sufficient evidence to find the petitioner guilty of the misconducts alleged. The petitioner also challenges punishment as disproportionate to the gravity of the misconduct. The petitioner further submits that overlooking of the petitioner for promotion is a further punishment imposed on the petitioner, which is not included in Ext.P3, is illegal and unsustainable. The petitioner submits that in Ext.P3 order, no punishment of barring of promotion was imposed on the petitioner and hence non-promotion of the petitioner on account of the punishment is unsustainable since the petitioner cannot be punished for the same misconduct twice. W.P.(C)No.4722/08 4 3. Separate counter affidavits have been filed by the State and respondents 1 and 2. They support the impugned orders. 4. I have considered the rival contentions in detail. At the outset I must note that Ext.P3 order is dated 22.11.2005. The petitioner has filed this writ petition challenging the same only on 7.2.2008. Of course, the learned counsel for the petitioner points out that the petitioner had filed representations against the same. No such representations have been produced in this writ petition. Even in Ext.P4 the petitioner is not against the disciplinary proceedings, but only against his being overlooked for promotion, seeking retrospective promotion. Even otherwise, it is settled law that filing of repeated representations is no sufficient ground to explain delay that too of three long years. 5. Apart from that, I do not find any infirmity in the enquiry proceedings also. The charges levelled against the petitioner were as follows: “i) An amount of Rs.3875/- collected by way of sale proceeds of University Exam application forms and University exam fees was remitted to the bank account on W.P.(C)No.4722/08 5 3.10.01 as per the bank pass book. But the remittance was entered in the cash book only on 15.10.01 as per cash book voucher number 623. Again on 28.1.02 an amount of Rs.3875/- was shown in the cash book as remitted into bank as per voucher number 998 obtaining a duplicate counterfoil from the bank in respect of the remittance made on 3.10.01. The actual remittance of the above amount in the bank account is Rs.3875/- where as the expenditure booked in the College records is Rs.7750/- (Voucher No.623 and 998 of 2001-2002). By way of this duplicate entry an amount of Rs.3875/was pilferred from college fund by the custodian of cash. ii) An amount of Rs.400 in the closing balance of 31.1.01 was not carried over to the opening balance on 1.2.01. This is done with a motivation to pilfer IHRD fund. The loss sustained to IHRD on the above account is Rs.400/-. iii) An amount of Rs.250/- collected by way of demand draft from M/s. Modi Engineering Works, Adoor shown as remitted into bank on 12/12/2001 is not accounted in the bank pass book.” ## The petitioner filed explanation to the same. The explanation ## is extracted in paragraph 4 of Ext.P3, which reads thus: “4. In the explanation furnished vide letter dated 28/3/2003 to the Memo of charges dated 19/3/2003, he reiterated his reply in his letter dated 15/6/2002. The explanations of Shri. Baby John vide his letter dated 15/6/2002 and 19/3/2003 are as detailed below. i) Regarding Charge No.1 above, Shri. Baby John explained that he was appointed as Junior Office Assistant at College of Engineering, Adoor on adhoc basis on 1 /4/1996 and was later regularised w.e.f. 1/9/1998. He was assigned the charge of Cashier on 11/10/1999. He had W.P.(C)No.4722/08 6 atributed the reasons of irregularity as his inexperience. Sri. Baby John has stated that - the remittance of Rs.3875/ made on 3.10.01 was not brought to cash book on that date due to his inadvertence. When he noticed the omission he debited the amount in the cash book on 15.10.01 obtaining permission from the head of institution. Regarding the duplicate - entry of Rs.3875/ Sri. Baby John has stated that when he verified the cash balance on 27/10/2001 a shortage of Rs.3900/- was noticed. When he verified the entries in the cash book from the beginnning of October, - 2001, he found that the remittance of Rs.3875/ made on 3/10/2001 was not booked. He thought that the difference of Rs.3900/- was due to this and he made entries in the cash book on 28/10/2001 with the permission of the Principal and Administrative Assistant with their signature on the duplicate paying slip. He has explained that he had forgotten all about the accounting of the same amount remitted on 3.10.01 in the cash book on 15.10.01. ii) Regarding Charge No.2, Sri. Baby John has stated that the shortage was not noticed by him and has requested to permit him to remit the amount. iii) Regarding Charge No.3, Sri. Baby John has explained that the D.D. for Rs.250/- was remitted into the bank on 12/12/2001 after obtaining receipt from the bank. (underlining supplied) Going by the same, the petitioner practically admitted the facts relating to the misconducts. Probably that is why the petitioner did not find it worthwhile to challenge the punishment earlier. Of course, he tried to explain it by saying that it is a mistake. But, as is clear from the charges and the explanation, the findings were based on documents on record 7 W.P.(C)No.4722/08 only. The punishment imposed on the petitioner was only a minor punishment of barring of increment for a period of one year without cumulative effect. For imposing minor punishment it is not necessary to conduct a detailed enquiry, but it is sufficient to give the petitioner opportunity to file explanation, which was admittedly given. His explanation has also been considered in Ext.P3 order. I do not find any merit in the contention that the punishment is disproportionate to the gravity of the misconduct. The punishment is very lenient in the circumstances and I feel that the petitioner was let off very lightly. That being so, I do not find any merit in the challenge against the punishment order or the enquiry. In any event, in view of the above circumstances, I am not inclined to exercise my discretionary jurisdiction under Article 226 of the Constitution of India in favour of the petitioner to interfere with the enquiry proceedings and the punishment. 6. The next question is regarding overlooking the petitioner for promotion on the ground of imposition of punishment. Ext.P6 is the order relating to the denial of promotion to the petitioner. The same reads thus: W.P.(C)No.4722/08 8 “Please refer to your letter cited. I may inform you that, Sri. Baby John while working as Office Assistant in the College of Engineering, Chengannur had applied for the post of Senior Office Assistant based on application invited by IHRD then. (vide circular No.E5/10376/2004.HRD dated 25.10.2004). The application submitted by Sri. Baby John along with others was placed before the Screening Committee for selection to the post of Senior Office Assistant held on 15.4.2005. The Screening Committee considered all the applications and resolved not to select Sri.Baby John on the ground that disciplinary action for serious financial irregularities committed by him is pending. Subsequently, on the basis of the vigilance enquiry report, the Vigilance Department instructed vide their letter No.6500/B1/2005/vigilance dated 23.9.2005 as follows. _(i) To complete the departmental disciplinary proceedings initiated against Sri. Baby John._ _(ii) To recover the amount misappropriated by Sri.Baby John._ _(iii) To post persons having sufficient experience in selffinancing institutions._ _(iv) To keep away Sri. Baby John from duties invoking handling of cash for a reasonable period._ Accordingly, the disciplinary action initiated against Sri.Baby John was finalized vide order No.E1/965/02/HRD dated 22.11.2005 and the following punishments were ordered. _a) To bar increment of Sri. Baby John for a period of one year without cumulative effect._ _b) To recover an amount of Rs.4275/from Sri. Baby John. c) To keep Sri. Baby John away from the duties invoking handling of cash._ The above punishment was imposed to Sri. W.P.(C)No.4722/08 9 Baby John. Further, the request of Sri. Baby John to promote him retrospectively as Senior Office Assistant was placed before the Screening Committee. The Screening Committee which met on 11.12.2006 considered all the above facts and observed that, Sri. Baby John, Office Assistant has committed serious financial irregularities and misappropriation of IHRD fund for which he had been punished. Further, Screening Committee ordered that, punishable person cannot be considered for appointment to a higher post with retrospective effect protecting the seniority of those who have already been promoted during the pendency of the vigilance enquiry and to select him for the post of Senior Office Assistant only from the date of joining duty and fixed his cadre seniority also. In the above circumstances, the request of Sri. Baby John to promote him retrospectively for the post of Senior Office Assistant deserves no merit and same is rejected. The above position may be intimated to Sri. Baby John accordingly and dispose the matter.” The contention of the petitioner is that overlooking of the petitioner for promotion amounts to double punishment for the same misconduct. I do not agree with the petitioner on that. An identical question came up for consideration of Supreme Court in the decision of **Union of India** v. **K.V. Janakiraman** [AIR 1991 SC 2010]. In paragraph 8 of the said judgment, the Supreme Court held thus: “According to us, the Tribunal has erred in holding that when an officer is found guilty in W.P.(C)No.4722/08 10 the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into. consideration and denies him W.P.(C)No.4722/08 11 the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of "paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal. The ratio of that decision squarely applies to the facts of this case. The denial of promotion to the petitioner was not another punishment for the same misconduct. Admittedly, the promotion to the post of Senior Office Assistant is by selection by the Screening Committee from among qualified persons. If that be so, the Scrutiny Committee has to select the most suitable persons from among all qualified persons. Of course, the petitioner was found to be qualified for promotion but, his suitability has to be considered taking into account the punishment imposed on the petitioner as well. That only has been done by the Screening Committee, which is perfectly in accordance with the ratio of the Supreme Court decision W.P.(C)No.4722/08 12 quoted above. Subsequently, when the petitioner was found fit for promotion, he was promoted also. Therefore, I do not find anything wrong in the initial denial of promotion to the petitioner taking into account the punishment imposed on him by Ext.P3. In view of the above findings, I do not find any merit in this writ petition and accordingly, the same is dismissed. **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.4722/08 13 W.P.(C)No.4722/08 14