Biju T.V. v. State of Kerala and Kerala Water Authority & Others

1 WPC 23374/23 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE BASANT BALAJI ``` ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 ``` ``` WP(C) NO. 23374 OF 2023 ``` ## **`PETITIONER/S:`** ``` BIJU T.V., AGED 47 YEARS, S/O. SANKARA WARRIER A.V., BIJU VIHAR, ARAKKURRISI, MANNARKKAD, PALAKKAD, PIN - 678582 ``` ``` BY ADVS. S.PARVATHI, T.K.SREEKALA UTHARA ASOKAN MATHEW J.ELENJICKAL(K/1837/2019) ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY THE SECRETARY, IRRIGATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM, PIN - 695033`** - **`3 THE CHIEF ENGINEER, (HRD & GL), KERALA WATER AUTHORITY, JALA BHAVAN, THIRUVANANTHAPURAM, PIN - 695033`** ``` BY GOVERNMENT PLEADER, GEORGIE JOHNY ``` ## **`OTHER PRESENT:`** ## **`GP SRI. TONY AUGUSTINE.`** ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 WPC 23374/23 **JUDGMENT** (Dated this the 13[th] day of March, 2024) The petitioner, while working as UD Clerk in Mannarkkad under P.H.S.D., Ottappalam was issued with Ext.P1 proceedings by which he was placed under suspension as serious irregularities in revenue collection and remittance to the tune of Rs.5,70,564/had occurred at P.H section, Mannarkkad during the period from 1.5.2019 to 8.7.2019. The petitioner, while working as head clerk in Water Sub Divisional office, Mattannur gave a reply to the suspension order stating that the daily collection of water charges was remitted in bank and the receipts were looked after by the petitioner every day. On certain days due to heavy work load, he could not check the receipts daily. Thereafter, the petitioner was served with a memo of charges and statement of allegations. The petitioner gave a reply as Ext.P4 on 6.9.2019. 3 WPC 23374/23 2. After finalising the disciplinary proceedings, the petitioner was given a penalty of barring one increment with cumulative effect for 3 years as per Rule 11 (1)(iii) of Kerala Civil Service (Classification, Control and Appeal) Rules, 1960 (for short ‘the Civil Rules, 1960’) and also to recover an amount of Rs.8,008/- as interest. Aggrieved by the order imposing penalty, the petitioner has filed this petition to quash Ext.P8 order and to reconsider the imposition of penalty and confinement of the same to a minor penalty in par with Ext.Nos.P6 and P7. 3. Ext.P6 is the proceedings of the Chief Engineer, Kerala Water Authority dated 16.1.2023 by which a person named Noushad, LD Clerk who was also suspended along with the petitioner and disciplinary proceedings initiated as per Ext.P6. Sri. Noushad was imposed with a minor penalty of barring one increment without cumulative effect for six months. Ext.P7 is the proceeding of Chief Engineer dated 16.1.2023 by which one Anoop V.K. was imposed with minor penalty of 4 WPC 23374/23 barring with one increment without cumulative effect for six months. The grievance of the petitioner is that two other officers who were issued with the same memo of charge are given lesser punishment, whereas the petitioner imposed with a major penalty by barring one increment with cumulative effect for 3 years. 4. A counter affidavit is filed on behalf of the 2[nd] respondent, wherein it is stated that as per Government Order (P) No. 47/99/letter dated 3.7.1999, the duties and responsibilities of various cadres of officers in Kerala Water Authority are issued. As per the said order, the revenue clerk is the custodian of cash and he has to timely remit the cash to the treasury and is in charge of maintenance and rendering of accounts as per rules. The petitioner, while holding the post of UD Clerk, had committed dereliction of duty by way of misappropriation of revenue money to the tune of Rs.5,70,564/- by Smt P.Baby, the then office attendant of that sub division. In the reply submitted to the memo 5 WPC 23374/23 of charges, the petitioner admitted the fault on his part and requested to exempt him from the charges levelled. 5. Ext.P5 memo of charges was issued to Sri Noushad and he was imposed with a minor penalty. In respect of Sri. Anoop, it was found that there was supervisory lapse from his part and barring one increment without cumulative effect for 6 months was ordered. The petitioner, being the person responsible for the misappropriation done by the office attendant, should have verified the challan with scroll regularly and if such a verification was done in time, the misappropriation could have been avoided. It is considering the serious lapses on the part of the petitioner being a responsible officer handling cash, the imposition of major penalty of barring one increment with cumulative effect for 3 years and to recover interest of misappropriated amount was ordered. Involvement in offence need not always be a positive action, but wilful inaction or omission in order to aid or assist the actual offender will also 6 WPC 23374/23 attract punishment. The petitioner holding a supervisory charge certainly requires to be imposed with a major punishment. Therefore, prayed for dismissal of the petition. 6. Heard the counsel Smt.Parvathy S, for the petitioner, Standing counsel Sri.George Johny for the Kerala Water Authority and the Government Pleader Sri.Tony Augustine. 7. The main contention raised by the counsel for the petitioner is that two persons who were charge sheeted along with the petitioner for the same offence and whose involvement was also found in tune with the petitioner, were given a minor penalty of barring of one increment without cumulative effect for 6 months, whereas the petitioner is imposed with a punishment of barring one increment with cumulative effect for 3 years and a recovery of the interest amount, thereby applying the doctrine of equality the petitioner should also have been imposed with a lesser punishment as that of the two persons who were also imposed with lesser punishment. The punishment imposed on the 7 WPC 23374/23 petitioner being a major one, is highly disproportionate with the punishment imposed with the other two officers who were also parties to the same transaction. Therefore, prayed that the punishment may be modified and in par with the punishment imposed with Ext.Nos.P6 and P7. 8. The standing counsel argued that there is no question of disproportionate of punishment and parity also. The petitioner who was holding a supervisory post and directly responsible for each days collection had done dereliction of duty. The two other officers who were given lesser punishment as per Ext.Nos.P6 and P7 were either the junior to the petitioner or senior to the petitioner, who were not having the direct control of the custody of cash and the responsibility to see that the remittance is made in time and challans are accounted with the scroll. The petitioner being the most responsible person for dealing with cash daily and his lapse was the main reason for the non-remittance of 8 WPC 23374/23 Rs.5,70,564/- by the office attendant, and therefore, the punishment order is in order to the gravity of the offence. 9. The offence alleged against the petitioner as well as the offences in Ext.Nos.P6 and P7 are that there were serious irregularities in revenue collection and remittance that had occurred at section Mannarkkad and Ottapalam during the period from 1.5.2019 to 8.7.2019. The office attendant, who was assigned duty to make the remittance to the bank was found guilty and she was imposed with major penalty of dismissal. Going by Ext.Nos.P6 and P7, the other two officers, against whom disciplinary proceeding were initiated along with the petitioner were imposed with a minor penalty of barring one increment without cumulative effect for a period of 6 months. 10. It is true that the petitioner was the most responsible officer among the persons for the lapses in revenue collection and remittance tot the tune of Rs.5,70,564/- and all the persons were found guilty and punishment were imposed. A perusal of the 9 WPC 23374/23 enquiry report as well as the orders passed by the respondent imposing punishment to Sri Naushad, U D Clerk as well as Anoop V.K., Assistant Engineer would show that a minor penalty was imposed on them, though the charges levelled against them were also similar to the charges levelled against the petitioner. There is no special reason stated in Ext.P8 for giving a major penalty to the petitioner when compared with Ext.Nos.P6 and P7, when punishment of barring 1 increment for cumulative effect of 3 years is imposed on the petitioner is too harsh when compared with the offences alleged against the petitioner and a comparison of the offences alleged against two other officers against who, the same charges were levelled. 11. The standing counsel for the Water Authority relied on a judgment of the apex court in **Prem Nath Bali v. Registrar,** **High Court of Delhi [2015 (16) SCC 415]** and contended that it is a settled proposition of law that once a delinquent of employee is found to be guilty of charges and the appointing authority 10 WPC 23374/23 decides to impose a punishment as per rules, keeping in view of the gravity of the charges, finding of the enquiry officer and the entire service records and once such discretion is exercised, either minor or major, the courts should be slow to interfere in quantum of punishment and may remit the case to the appointing authority for imposing any other punishment as against what was originally awarded to the delinquent as per the Rules or to substitute the punishment. Such power can be exercised only when the court finds that the quantum of punishment inflicted on him is wholly unreasonable arbitrary and disproportionate to the gravity of the proved charges, thereby shocking the conscience of court or when it is found to be in contravention of the rules. 12. It is a proven fact that there has been a dereliction of duty by the petitioner which laid path to the misappropriation of Rs.5,70,564/- by the office attendant. Taking into consideration of the facts and circumstances of enquiry report as well as the documents produced, and the entire service records, the 11 WPC 23374/23 punishment imposed on the petitioner by barring one increment with cumulative effect for 3 years is disproportionate to the charges levelled against the petitioner and not in in par with the punishment imposed to the other two delinquents. 13. Reliance was placed by the counsel for the petitioner on paragraph Nos.13 and 14 of the judgment of the apex court reported in **Rajendra Yadav v. State of Madya Pradesh (2013 KHC 4118)** and argued that doctrine of equality applies among the persons who are found guilty. The persons who have been found guilty also can claim equality of treatment if they can establish discrimination while imposing punishment when all of them in parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of codelinquent who are parties to the same transaction or incident. 12 WPC 23374/23 ## 14. The apex court in **Naresh Chandra Bhardwaj v. Bank of India [(2019) 15 SCC 786],** in paragraph No.6 held ## as follows: - “6. There is really no difference in the proposition, which is sought to be propounded except that in the latter judgment the principles have been succinctly summarised in the last paragraph of the judgment, which reads as under: ( _Lucknow Kshetriya Gramin Bank_ case, SCC p.382, para 19 **)** 19. The principles discussed above can be summed up and summarised as follows: 19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities. 19.2. The courts cannot assume the function of disciplinary/ departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority. 19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the court. 19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the 13 WPC 23374/23 appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The court by itself cannot mandate as to what should be the penalty in such a case. 19.5. The only exception to the principle stated in para 19.4 above, would be in those cases where the codelinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co-delinquent was foisted with more serious charges. This would be on the doctrine of equality when it is found that the employee concerned and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co delinquent accepts the charges, indicating remorse with unqualified apology, lesser punishment to him would be justifiable.” Taking into consideration of the dictum laid down by the apex court as well as the records available in case, as well as in the Writ Petition, I am of the firm view that the punishment imposed is disproportionate to the charges proved and the barring of one increment with cumulative effect for 3 years, in my opinion, is on the higher side when compared to other 14 WPC 23374/23 delinquents. Therefore, the punishment imposed as per Ext.P5 is modified and ordered that the penalty shall be barring of one increment with cumulative effect for 1 year as per Rule 11(1)(iii) of the Civil Rules, 1960. Disposed of as above. Sd/- **BASANT BALAJI, JUDGE** dl/ 15 WPC 23374/23 ## **`APPENDIX OF WP(C) 23374/2023`** ## **`PETITIONER EXHIBITS`** - **`Exhibit P1 TRUE COPY OF THE PROCEEDINGS ISSUED BY THE 3RD RESPONDENT DATED 20.7.2019`** - **`Exhibit P2 TRUE COPY OF THE REPLY DATED 24.7.2019 GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT`** - **`Exhibit P3 TRUE COPY OF THE MEMO OF CHARGES ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 20.8.2019`** - **`Exhibit P4 TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE 3RD RESPONDENT DATED 6.9.2019`** - **`Exhibit P5 TRUE COPY OF THE MEMO OF CHARGES DATED 17.6.2021 GIVEN TO SRI. NAUSHAD, LD CLERK`** - **`Exhibit P6 TRUE COPY OF THE FINAL ORDER DATED 16.1.2023 IN THE DISCIPLINARY PROCEEDINGS IN RESPECT OF SRI. NAUSHAD, LD CLERK`** - **`Exhibit P7 TRUE COPY OF THE FINAL ORDER DATED 16.1.2023 IN THE DISCIPLINARY PROCEEDINGS IN RESPECT OF SRI. ANOOP V.K., ASSISTANT ENGINEER`** - **`Exhibit P8 TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 23.12.2022`** ## **`RESPONDENT ANNEXURES`** - **`Annexure A1 the true copy of the inquiry report dated 25.02.2021 as against petitioner along with its enclosures`**