M.V. Augustine v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 14TH OCTOBER 2011 / 22ND ASWINA 1933 **O.P.No. 5079 of 2003(D)** **----------------------** PETITIONER: --------------- M.V.AUGUSTINE, RETIRED FORESTER, MALIAKKAL HOUSE, CHELACHUVADU P.O., (VIA) IDUKKI. BY ADV. SRI.M.V.THAMBAN RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST, THIRUVANANTHAPURAM 2. CHIEF CONSERVATOR OF FOREST, THIRUVANANTHAPURAM. 3. ASSISTANT CONSERVATOR, SOCIAL FORESTRY DIVISION, VELLAPPARA, PYNAVU P.O., IDUKKI DISTRICT. BY GOVERNMENT PLEADER ADV. SMT. P. MAYA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **OP.No. 5079 of 2003(D)** ORDER ON C.M.P.NO. 8979 OF 2003 IN OP. 5079 OF 2003 DISMISSED. |14.10.2011||SD/- P.R. RAMACHANDRA MENON, JUDGE.| |---|---|---| |||**APPENDIX**| |EXT. P1|:|TRUE COPY OF CHARGE MEMO & STATEMENT NO.| |||B3-6173/;88 DTD. 1001.89 BY 2ND RESPONDENT| |||TO PETITIONER.| |EXT.P1(a)|:|TRUE TRANSLATION OF EXT.P1 CHARGE MEMO| |||& STATEMENT NO.;B3-7173/88 DTD.10.1.89.| |EXT.P2|:|TRUE COPY OF WRITTEN STATEMENT DTD. 21.04.1989| |||BY PETITIONER BEFORE 2ND RESPONDENT.| |EXT.P2(a)|:|TRUE TRANSLATION OF EXT. P2 WRITTEN STATEMENT| |EXT.P3|:|TRUE COPY OF SHOW CAUSE NOTICE NO,.B1-6173/99| |||DT.3.1.1993 BY THE 2ND RESPONDENT TO| |||PETITIONER.| |EXT.P3(a)|:|TRUE TRANSLATION OF EXT. P3 SHOW CAUSE NOTICE.| |EXT.P4|:|A TRUE COPY OF REPLY DATED 27.3.1993 BY| |||PETITIONER TO 2ND RESPONDENT.| |EXT.P4(a)|:|TRUE TRANSLATION OF EXT.P4 REPLY DT. 27.3.1993| |||BY PETITIONER.| |EXT.P5|:|TRUE COPY OF NOTICE NO. B3-6173/88| |||DTD.27.11.1993 BY 2ND RESPONDENT TO PETITIONER.| |EXT.P5(a)|:|TRUE TRANSLATION OF EXT.P5 NOTICE DTD.| |||27..11.93 BY 2ND RESPONDENT.| |EXT.P6|:|TRUE COPY OF ORDER NO. B3-6173/88 DTD.16.12.93| |||BY 2ND RESPONDENT TO PETITIONER.| |EXT.P6(a)|:|TRUE TRANSLATION OF EXT.P6 ORDER DT. 16.12.93| |EXT.P7|:|TRUE COPY OF APPEAL BY PETITIONER BEFORE| |||THE 1ST RESPONDENT| |EXT.P7(a)|:|TRUE TRANSLATION OF EXT.P7 APPEAL DT. 2.3.94| |||BY THE PETITIONER.| ## **OP.No. 5079 of 2003(D)** |EXT.P8|:|TRUE COPY OF DEMAND NOTICE NO.E-24 04/92| |---|---|---| |||DTD. 16.6.1994 BY 3RD RESPONDENT TO PETITIONER.| |EXT.P8(a)|:|TRUE TRANSLATION OF EXT.P8 DEMAND NOTICE| |||DT. 16.06.94 BY 3RD RESPONDENT.| |EXT.P9|:|TRUE COPY OF GOVT. ORDER G.O.(P)NO.435/95/| |||FOREST DT.20.11.1995 REJECTING THE APPEAL| |||SUBMITTED BY PETITIONER.| |EXT.P10|:|TRUE COPY OF JUDGMENT DT.23.2.1999 IN| |||O.P. 10950/94 OF THE HON'BLE HIGH COURT.| |EXT.P11|:|TRUE COPY OF JUDGMENT DTD.16.11.1999 IN| |||W.A. 2294/1999.| |EXT.P12|:|TRUE COPY OF ENQUIRY REPORT DTD.28.6.1991| |||OF THE INQUIRY OFFICER.| |EXT.P13|:|TRUE COPY OF OBJECTION DTD. 7.6.1999 SUBMITTED| |||AGAINST THE INQUIRY REPORT.| |EXT.P13(a)|:|TRUE COPY OF OBJECTION DTD.28.9.1999| |||SUBMITTED BY THE PETITIONER.| |EXT.P14|:|TRUE COPY OF SHOW CAUSE NOTICE DTD.27.3.2000| |||BY THE 2ND RESPONDENT.| |EXT.P15|:|TRUE COPY OF OBJECTION DATED 24.05.2001| |||SUBMITTED BY THE PETITIONER.| |EXT.P16|:|TRUE COPY OF ORDER DATED 6.7.2001 ISSUED BY| |||THE 2ND RESPONDENT.| |EXT.P17|:|TRUE COPY OF LETTER NO.E-2404/92 DATED| |||2.1.2003 ISSUED BY THE 3RD RESPONDENT.| |EXT.P17(a)|:|TRUE COPY OF CHALAN DATED 30.1.2003 FOR| |||RS.43143/-| |||/TRUE COPY/| P.S. TO JUDGE. ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. **O.P.No. 5079 OF 2003** ......................................................................... **Dated this the 14[th] October , 2011** ## **J U D G M E N T** Correctness and sustainability of the findings in the disciplinary proceedings and imposition of punishment to the extent of realisation of the loss sustained by the Government, forms the subject matter of this Original Petition. 2. The petitioner herein joined the service as a 'Forest Guard' on 01.10.1962 and was later promoted as 'Forester' in the year 1985. The petitioner was served with Ext. P1 charge memo holding that the petitioner failed to maintain proper records during the period 1982-83, particularly with regard to the firewoods, whereby a loss to the tune of Rs.264950/- had been resulted to the Government/Department and sought for explanation as to why disciplinary proceedings shall not be initiated/pursued against him. The petitioner submitted Ext. P2 reply stating that he was in no way connected with the liability **2** ## **O.P.No. 5079 OF 2003** to maintain the Register, more so, when it was actually vested with the two Deputy Rangers and the two Guards, against whom also, proceedings have already been initiated. Not satisfied with the explanation, Ext.P3 'Show Cause Notice' was issued, which was responded by the petitioner, submitting Ext. P4 objection. Pursuant to Ext.P5 notice of hearing, Ext. P6 order was passed by the second respondent, fixing the total loss at Rs.66238/-and the liability was ordered to be satisfied by all the delinquent employees in an equal manner. 3. Met with the situation, the petitioner preferred Ext. P7 appeal, during the pendency of which, Ext.P8 demand notice was served to him. The appeal preferred before the Government was dismissed as per Ext. P9 order confirming Ext. P6, which was challenged by the petitioner before this Court by filing O.P.No.10950 of 1994 earlier, leading to Ext. P10 judgment. As per Ext. P10, the submission of the petitioner that the proceedings were finalised against him without serving a copy of the Enquiry Report was accepted, in view of the law declared by the Apex Court in _**Union of India vs. Mohd. Ramzan Khan**_ ( **3** ## **O.P.No. 5079 OF 2003** **AIR 1991 SC 471 )** . The proceedings were set aside and the matter was remitted to the second respondent for fresh consideration, after serving a copy of the enquiry report, in tune with the law declared by the Apex Court in _**Managing Director, ECIL vs. B. Karunakar**_ ( **AIR 1994 SC 1074)** . 4. Pursuant to the above proceedings, the matter was reconsidered by the second respondent, who served a copy of the enquiry report (Ext.P12) to the petitioner. On receipt of Ext. P12, the petitioner preferred Ext. P13, pointing out the relevant aspects to substantiate his innocence. Finding that the same was not acceptable, Ext. P14 Show- Cause Notice was issued, which was replied by the petitioner as per Ext. P15, finally leading to Ext. P16 order, whereby the finding on guilt was confirmed, also quantifying the loss to be satisfied by all the delinquent employees; as a result of which, the petitioner was also required to satisfy a sum of Rs.66,238/- being ¼[th] of the total liability, as aforesaid. This was followed by Ext. P17 demand notice, also enclosing a 'Chalan' in this regard, which made the petitioner to approach this Court challenging the proceedings as aforesaid. **4** ## **O.P.No. 5079 OF 2003** 5. The learned Counsel for the petitioner submits with reference to the finding in the enquiry and the materials on record that the petitioner has been found guilty merely for the reason that others have been found guilty. This cannot be the basis or yardstick for arriving at the guilt of the petitioner, submits the learned Counsel for the petitioner. 6. The learned Government Pleader submits that the finding on guilt has been arrived at by the disciplinary authority after a meticulous analysis of the facts and figures given in the enquiry report. The discussion of the relevant materials in the enquiry report is brought to the notice of this Court, with particular reference to the fact that there is a finding by the Enquiry Officer that all the delinquent employees were responsible in respect of the charges levelled against them. The finding in respect of the petitioner, who happened to be A.O.IV, is in the following terms: _“Charge I:- A.Os.III & IV were in charge of the work of extraction and transport in the above coupe. In view of the facts_ **O.P.No. 5079 OF 2003** **5** _proved in charge I of A.Os I & II the charge against them also is proved._ _Charge II:- The works were done jointly by the A.Os. In the vouchers A.OS. III& IV had certified that the works have been completed satisfactorily. The total quantity charged in the vouchers is 7477 .08 M.T and this clearly shows that they had colluded with A.O.II. Therefore the charge II against A.Os.III and IV is proved.”_ It is also relevant to note that there is no material in support of the contention raised by the petitioner to hold that the Enquiry Officer has made any observation so as to absolve the petitioner, pointing out that the insinuating circumstance was never within the duty or liability of the delinquent employee, i.e, the petitioner. 7. This Court finds that the materials on record have been properly analysed and appreciated by the concerned authority, particularly, the disciplinary authority, leading to Ext. P16. The earlier defect of non-service of a copy of enquiry report was subsequently rectified and the petitioner was given opportunity to **6** ## **O.P.No. 5079 OF 2003** point out/substantiate his innocence, in tune with the law declared by the Apex Court in the decision cited supra. However, the fact remains that the petitioner could not establish his innocence and the finding has been entered on the basis of the merit involved. It is also seen that no prejudice has been caused to the petitioner in the matter of finalisation of the proceedings and that the finding is well supported by the reasons. This Court finds it difficult to accept the proposition of the petitioner. The Original Petition is devoid of any merit. None of the grounds raised in support of the contentions does serve its purpose. Interference is declined and the Original Petition is dismissed. **P.R. RAMACHANDRA MENON, JUDGE.** lk **7** ## **O.P.No. 5079 OF 2003** **P.R. RAMACHANDRA MENON, J. ................................................... O.P.No. 5079 OF 2003 ................................................... Dated this the 14[th] October, 2011** **J U D G M E N T**