Rajeevan E. v State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS MONDAY, THE 7[TH] DAY OF FEBRUARY 2022 / 18TH MAGHA, 1943** **WP(C) NO. 21117 OF 2021** ## **PETITIONER:** RAJEEVAN.E., JUNIOR ASSISTANT (UNDER SUSPENSION), SUPPLYCO, OFFICER IN CHARGE, MAVELI STORE, NADAPURAM ROAD, KOZHIKODE. BY ADVS. S.RAJEEV K.K.DHEERENDRAKRISHNAN VINAY V ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FOOD AND CIVIL SUPPLIES DEPARTMENT, ROOM NO.379 A, 1ST FLOOR, MAIN BLOCK SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 SUPPLYCO, REPRESENTED BY ITS MANAGING DIRECTOR, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM-682 020. 3 CHAIRMAN AND MANAGING DIRECTOR, KERALA CIVIL SUPPLIES CORPORATION, SUPPLYCO, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM-682 020. 4 ADDITIONAL GENERAL MANAGER, SUPPLYCO, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM-682 020. BY ADV R.LAKSHMI NARAYAN ## **OTHER PRESENT:** SR.GP REKHA .S THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.01.2022, THE COURT ON 7/2/2022 DELIVERED THE FOLLOWING: W.P.(C) No.21117/2021 2 ## **JUDGMENT** The writ petitioner joined the service of the second respondentSUPPLYCO under the Kerala Civil Supplies Corporation in the year 2004 as an Assistant Salesman. He was later promoted as Junior Assistant in June 2018. He was posted in charge of NFSA, godown at Vellayil, Kozhikode on 11/3/2019. According to the petitioner, the said godown was the collection and distribution centre of five other godowns /centers under three ration offices. Records relating to the stock of all the five godowns were kept in the godown at Vellayil. The petitioner claims that though at the time of joining Vellayil godown, he had insisted for stock verification, it was not done. There was neither any proceedings for appointing the petitioner as the custodian of stock nor any document evidencing the petitioner's acceptance as the custodian of stock available. On 6/9/2021, he was served with Ext.P9 suspension order. It was alleged that, an inspection conducted in the said godown revealed that there was shortage of two items of boiled rice of 1055.30 quintal and 901.94 quintal respectively. There was an excess stock of 1076.2 quintal wheat. Alleging dereliction of duty,he was placed under suspension pending an enquiry. He submitted Ext.P16 reply. He was transferred to Maveli Store, Vadakara depot and continued to be under suspension. 2. The petitioner has approached this court challenging Ext.P9 suspension order. Relief sought is to quash Ext.P9 suspension order and W.P.(C) No.21117/2021 3 also for a direction to the third respondent to conduct a full fledged audit from June 2019 till 30[th] March 2021. 3. Challenging Ext.P9 order vehemently, the learned counsel for the petitioner contended that he has been burdened with liability without any materials. The specific contention of the petitioner was that at the time of taking the charge, there was no stock verification. He raised objection against taking charge without proper stock verification. It was contended that there was no specific authorization giving the petitioner any charge. At the time of taking the charge of the godown, it was the joint godown of several other offices under which there were about 372 ration shops. The godown was badly maintained, completely stacked with food grain sacks and was unhygienically and improperly maintained. It was also contended that, since the godown contained stock of three ration offices, it was difficult to segregate the entire stock and to assess the stock and to impose liability, if any, on the three different persons who were given charge of the godown. 4. Vehemently opposing the above contentions, the respondent Corporation has filed a detailed statement of objection wherein, it was asserted that the petitioner was the custodian of Vellayil depot and had acknowledged the taking of charge. Later, Stock verifications were conducted twice, under the direction of the Head office. The variation in stock found out in both the stock verification, was same. Based on the inspection conducted on 31/3/2021, the shortage in boiled rice and excess stock of wheat were detected. Accordingly, the petitioner was issued to show cause and was W.P.(C) No.21117/2021 4 placed under suspension. It was contended by the respondent that the above suspension order is not justiciable and being an action taken pending enquiry, which itself is not punitive one, the petitioner was not entitled to challenge it. 5. The specific contention of the learned counsel for the petitioner was that, though he was posted on 11/3/2019 and took charge on that day, no stock verification was conducted. He had raised specific objection which was also subsequently brought to the notice of the officer in charge. It was stated that the officer in charge did not accept his insistence for stock verification. However, he joined NFSA godown and continued to work till March 2021. Thereafter, he was transferred to Vadakara. It was specifically contended by the learned counsel that there was no material to show that the petitioner had accepted the liability of the godown while taking the charge. 6. To contradict the above contentions, learned counsel for the respondent invited my attention to Ext.R3(4), which was the charge taking report. Ext.R3(4) shows that the predecessor of the petitioner herein had handed over the charge on 13/1/2021. Petitioner had endorsed as having taken charge. Whether there was any stock verification and whether the petitioner can now raise a contention that there was no stock verification and that his objection to the taking of charge without stock verification are matters which need to be considered on the basis of the materials gathered in enquiry. In fact, though there was a specific pleading in the writ petition at paragraph 3 that the petitioner had informed the District Depot in writing W.P.(C) No.21117/2021 5 about his insistence for stock verification, it is neither produced nor is available on record. Hence, the question whether the petitioner had raised objection regarding the taking of charge of stock needs to be considered at the time of enquiry. In the absence of any specific material on record to show that the petitioner has raised objection, I am not inclined to prima facie accept the above defence. 7. The learned counsel for the petitioner has a specific case that the godown was the joint godown of three separate Taluk offices. It was also contended that in the above godown, stock of all the three offices were kept and were under the joint custody of three persons. Godown was badly maintained and articles were stacked till roof. Learned counsel for the petitioner relied on Exts.P2 and P4 to establish this. Ext.P2 is the minutes of a meeting held on 1/10/2019 in which decision was taken to split the godown into three to make separate arrangements,. Ext.P4 is the report dated 27/12/2019 of the Assistant Manager to the Depot Manager, wherein he had reported about the situation that existed in the godown. It indicated that the stock in excess of its capacity was stacked there. Exts. P5 and P6 are two other communications of the depot manager in charge of Vellayil depot to the Deputy Manager, SUPPLYCO, which gives an indication that excess stock was kept in the godown. Ext.P5 shows that the stock to be supplied to 372 ration shops were kept there. Though the capacity of the godown was 6883 MT quintal, stock was 8191 MT quintal ton. It was also stated that huge quantity of stock was found missing. W.P.(C) No.21117/2021 6 8. Relying on Exts.P2, P4 , P5 and P6, the learned counsel for the petitioner vehemently contended that, these documents indicated that there was an excess stock kept. It was nearly impossible to have an effective stock taking and that the possibility of missing up of stock or error in stock verification could not be ruled out. Contending that the stock of three separate ration offices were kept, in the same godown, the possibility of malpractices conducted by other persons, resulting in difference in stock could also not be ruled out. Hence, it was contended that essentially the stock verification done was not in order and liability could not be fastened on the petitioner. 9. Though the learned counsel vehemently contended that the petitioner was not properly authorised to deal with stock, that he being a junior officer ought not have been given the post of godown keeper, and that he was not given charge after proper enquiry, at present, I am not inclined to go into the question essentially on the strength of Ext.R3 (4). In the light of the above and in the absence of any contra materials all other contentions pales into insignificance, at this stage. 10. The learned counsel for the petitioner further contended that the possibility of the stock under the charge of the petitioner, getting mixed up with stock of other custodians in joint charge of godown or that even before taking charge by the petitioner, there might have been deficiency in the stock have not been ruled out. At this stage, the question whether the petitioner was properly appointed as godown keeper, that he was not given charge W.P.(C) No.21117/2021 7 after stock verification, do not arise in the light of the evidence of taking charge. Suffice to say that there is no material at present to support it. It seems that twice stock verification were conducted and both indicated deficiency of stock in the case of rice and excess stock in the case of wheat. Hence, the present contentions falls within the domain of the appreciation of the evidence after full fledged enquiry. 11. To supplement the argument that, while considering the legality of the suspension order, the court is entitled to review and evaluate the question of facts for the limited purpose of scrutinizing the decision making process, to see that the order was passed under justifiable circumstances or if the authority abused the power, the learned counsel placed reliance on the decision reported in _**Vikraman Nair K. v. State of Kerala and Others (2008**_ ## _**(4) KHC 412) Surendran K v. Government of Kerara and Others (2008**_ ## _**(3) KHC 738).**_ 12.It is elementary that the suspension is not a penalty, but only to ensure that the delinquent does not repeat the offence , that he does not interfere with the enquiry or that he get an opportunity to tamper the records. 13. Having evaluated the above, I am not inclined to interfere with the suspension order at this stage. However, it is to be noted that though the petitioner was suspended on 6/9/2021, enquiry seems to have not progressed. Ext.P3 shows that suspension order can be reviewed after a period of three months. Enquiry has not progress thereafter. Since the petitioner has been transferred to Vadakara, I feel that question of tampering W.P.(C) No.21117/2021 8 with the records at present may not arise. Having evaluated the fact that the petitioner is under continued suspension and enquiry is likely to take more time, I am inclined to direct respondents 2 and 3 to review suspension order of the petitioner and to take appropriate decision having regard to the entire facts. In case the authority finds that the suspension is liable to continue, the enquiry shall be expedited and it shall be brought to its logical conclusion, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of with the above observation. Sd/- **SUNIL THOMAS JUDGE** dpk W.P.(C) No.21117/2021 9 ## **APPENDIX OF WP(C) 21117/2021** PETITIONER EXHIBITS - Exhibit P1 THE TRUE COPY OF THE PROCEEDINGS NO. B 2859/2018 DATED 11.03.2019 OF THE DEPOT MANAGER, KOZHIKODE. - Exhibit P2 THE TRUE COPY OF THE MINUTES OF THE PROCEEDINGS OF THE DEPUTY CONTROLLER OF RATIONING, NORTH DATED 01.10.2019. - Exhibit P3 THE TRUE COPY OF THE PROCEEDINGS NO.B204/2019 DATED 05.03.2020 OF THE REGIONAL MANAGER TRANSFERRING THE APPLICANT TO VADAKARA DEPOT. - Exhibit P4 THE TRUE COPY OF THE REPORT DATED 27.12.2019 SUBMITTED BY ASSISTANT MANAGER (Q), NFSA, KOZHIKODE TO THE DEPOT MANAGER, KOZHIKODE ON THE CONDITION OF NFSA GODOWN, VELLAYIL. - Exhibit P5 THE TRUE COPY OF THE LETTER DATED 03.08.2019 ADDRESSED TO THE DEPOT MANAGER, KOZHIKODE BY THE OIC, NFSA, VELLAYIL. - Exhibit P6 THE TRUE COPY OF THE LETTER DATED 11.03.2020 ADDRESSED TO THE DEPOT MANAGER, KOZHIKODE BY THE OIC, NFSA, VELLAYIL. - Exhibit P7 THE TRUE COPY OF THE PROCEEDINGS NO.B29/2021 DATED 12.01.2021 OF THE DEPOT MANAGER, KOZHIKODE. - Exhibit P8 THE TRUE COPY OF THE LETTER NO.IAW311644/2021 DATED 05.04.2021 OF MANAGER (A & I). - Exhibit P9 TRUE COPY OF THE ORDER OF SUSPENSION NO.D23/21989/21 DATED 06.09.2021 ISSUED BY 4TH RESPONDENT. - Exhibit P10 CIRCULAR NO.5/2018 DATED 20.04.2018 OF THE CHAIRMAN & MANAGING DIRECTOR REG. ALLOTMENT OF POSTS AT NFSA GODOWNS. W.P.(C) No.21117/2021 10 - Exhibit P11 TRUE COPY OF THE CIRCULAR NO.1/2017 DATED 23.01.2017 OF THE CHAIRMAN AND MANAGING DIRECTOR. - Exhibit P12 THE TRUE COPY OF THE CIRCULAR NO.23/2018 DATED 20.12.32018 OF THE CHAIRMAN AND MANAGING DIRECTOR. - Exhibit P13 THE TRUE COPY OF THE AMENDED CIRCULAR NO.23/2018 DATED 04.05.2019 ISSUED BY THE 3RD RESPONDENT. - Exhibit P14 THE TRUE COPY OF THE CIRCULAR NO.1/2019 DATED 04.01.2019 OF THE CHAIRMAN AND MANAGING DIRECTOR REGARDING APPORTIONMENT OF LIABILITY. - Exhibit P15 THE TRUE COPY OF THE CIRCULAR NO.19/2015 DATED 16.12.2015 ISSUED BY THE 3RD RESPONDNT. - Exhibit P16 THE TRUE COPY OF THE APPEAL DATED 23.09.2021 SUBMITTED BEFORE THE RESPONDENTS 3 & 4. - Exhibit P17 THE TRUE COPY OF THE CHARGE HANDING OVER REPORT DATED 31.03.2021 OF THE NFSA DEPOT, VELLAYIL. - Exhibit P18 THE TRUE COPY OF THE RTI APPLICATION DATED 29.09.2021. - Exhibit P19 THE TRUE COPY OF THE REPLY UNDER RTI ACT DATED 25.10.2021. - Exhibit P20 TRUE COPY OF THE RTI REPLY DATED 11.10.21 ISSUED BY THE TALUK SUPPLY OFFICE, KOZHIKODE. - Exhibit P21 THE TRUE COPY OF THE REPLY UNDER RTI DATED 03.11.2021 RECEIVED FROM THE TALUK SUPPLY OFFICE, KOZHIKODE. - Exhibit P22 THE TRUE COPY OF THE CIRCULAR NO.2/2018 ISSUED BY THE CIVIL SUPPLIES DIRECTOR. W.P.(C) No.21117/2021 11 Exhibit P23 THE TRUE COPY OF THE RELEVANT PAGES OF THE VISIT BOOK MAINTAINED AT THE VELLAYIL GODOWN. RESPONDENTS EXHIBITS: ANNEXURE R3 (1): COPY OF THE CHARGE HANDING OVER REPORT OF RINCY ANNEXURE R 3(2) : COPY OF THE COMMUNICATION OF THE AGM(P&A) DATED 31/8/2021 ANNEXURE R3 (3): COPY OF THE COMMUNICATION DATED 8/3/2021 OF THE DISTRICT COLLECTOR, KOZHIKODE. ANNEXURE R3 (4) COPY OF THE RELEVANT PAGE OF THE OFFICE ORDER NO. B.29/2021 DATED 12/1/2021 ANNEXURE R3 (5): COPY OF THE OFFICE ORDER NO.1/2019.