## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE S.V.BHATTI &**
**THE HONOURABLE MR.JUSTICE BASANT BALAJI MONDAY, THE 27[TH] DAY OF MARCH 2023 / 6TH CHAITHRA, 1945**
## **WA NO. 380 OF 2010**
## **WPC 24319/2004 OF HIGH COURT OF KERALA**
## **APPELLANT/S:**
THE REGIONAL MANAGER,KERALA STATE CIVIL KERALA STATE CIVIL SUPPLIES CORPORATION LTD., THIRUVANANTHAPURAM. BY ADVS.SHRI N.D.PREMACHANDRAN,SC,SUPPLYCO SMT.MOLLY JACOB, SUPPLYCO
## **RESPONDENT/S:**
1 BABU, AGED 57, MALAVILAKOM HOUSE, AMARAVILA P.O., THIRUVANANTHAPURM. - EXPIRED 2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOOD AND CIVIL, SUPPLIES AND CONSUMER AFFAIRS DEPARTMENT,, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3 THE COMMISSIONER OF CIVIL SUPPLIES THIRUVANANTHAPURAM. 4 THE DIRECTOR OF CIVIL SUPPLIES THIRUVANANTHAPURAM. 5 ADDL.R5 M. JAYANTHI, MALAVILAKOM, AITHUKONDAMKARI, AMARAVILA P.O. THIRUVANANTHAPURAM 695 122.. ADD.R5 IMPLEADED AS PER ORDER DATED 4/6/20 IN IA 346 /16 IN WA 380/10.
GP - MARY BEENA JOSEPH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **S.V.BHATTI & BASANT BALAJI, JJ.**
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**Writ Appeal NO. 380 OF 2010**
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## JUDGMENT
(Dated this the 27[th] day of March 2023)
## Basant Balaji J.,
The Writ Appeal is filed by the 4[th] respondent in WP© No.24319 of 2004. The Writ Petition was filed by the petitioner, who is arrayed as the first respondent in this case, challenging Ext.Nos.P1, P2, P7, P8, P9, and P11 and for writ of mandamus declaring that the disciplinary proceedings initiated against the petitioner is illegal and without the authority of law and no recovery from the salary of the petitioner should be made based on that.
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2. The brief facts necessary for the disposal of this Writ Appeal are as follows:- While working as Rationing Inspector in the Civil supplies department, the petitioner was deputed for Civil Supplies Corporation in October 1990. He was posted as Shop Manager in Maveli Store, Aryanad, in November 1991. He applied for leave from 7.10.1992 to 30.11.1992. But only 20 days of leave was sanctioned. The extension of leave application was not allowed, though it was applied on medical grounds. He was placed under suspension on the basis of a report from the Assistant Manager dated 17.11.1992. A Memo of charges dated 19.3.1993 was issued to the petitioner based on an inspection conducted by the on Manager, Accounts and Assistant Manager Nedumangad
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26.9.1992. After that, a revised memo of charges was issued to the petitioner. Petitioner submitted Ext.P4 reply denying the charges in the first memo of charges, and the Corporation accepted the explanation. After the revised memo of charges was issued to the petitioner, he submitted a representation dated 18.4.1994 to the Regional Manager, the 4th respondent requesting him to give eight documents referred to therein. To that representation reply dated 22.4.1994 was sent by the Regional Manager, stating that items No.6 and 7 alone are available and the rest of the documents are not available. By order dated 19.10.1995, the Regional Manager (Kerala State Civil Supplies Corporation) directed to recover an amount of Rs.15,566.21 from the petitioner towards loss
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caused to the Civil Supplies Corporation. Petitioner filed an appeal against the order of the Regional Manager to the Director of Civil Supplies Corporation. By Ext.P8 order, the appeal was dismissed. A further appeal was filed before the Commissioner of Civil Supplies. The Commissioner did not interfere with the direction to recover the amount shown in the order dated 19.10.1995 but held that the petitioner has justifiable grievances against not sanctioning him leave for a period of absence of duty which was supposed to have been sanctioned to him as per proceedings dated 19.10.1995 of the Regional Manager. It was directed that if leave was not sanctioned order to be issued sanctioning leave at the earliest. For the recovery of Rs.15,566.21, the petitioner filed a revision petition before
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the Government on 19.6.2000. After a long span of four years, by order dated 4.6.2004 the revision was dismissed. It is aggrieved by the orders passed against the petitioner that the Writ Petition was filed.
3. A counter affidavit was filed by the 4[th] respondent controverting the allegations raised in the writ petition and producing Ext.R4(1) a circular dated 15.1.1998. The first respondent also filed a counter affidavit. The learned Single Judge, after perusing the writ petition as well as counter affidavits filed by respondents Nos1 and 4, quashed Ext.P1, P2, P7, P8, P9, and P11 proceedings and declared that the disciplinary proceedings initiated against the petitioner are illegal and directed to treat the period of suspension of the petitioner as he was on duty and to pay
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him salary for the said period. It is aggrieved by the said judgment that the 4th respondent files the Writ Appeal.
4. Heard Smt.Molly Jacob, the standing counsel for the appellant. The first respondent in the appeal, who was the petitioner in the writ petition, expired on 23.8.2013, and accordingly, an application was filed to implead legal heirs, which was allowed as per 4.6.2020 in IA 346/2016. Though notice was issued to legal heirs and served on them , they chose not to appear.
5. The main contention raised by the counsel for the appellant is that though the appellate authority, in Ext.P9, observed that the petitioner has justifiable reasons against non-sanctioning leave for the absence of duty, is not exonerated from the charges leveled against him. Sufficient
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opportunity was given to the petitioner to peruse the records, and the petitioner has failed to avail the same. Therefore, there is no violation of the principles of natural justice. So, the learned Single Judge was not justified in entering into a finding that there was a violation of of natural and that there is no principles justice unauthorised absence, and he is entitled for salary for the entire period of suspension.
6. The petitioner was on leave on medical grounds from 7.10.1992 to 30.11.1992, but the authorities granted leave only for 20 days. The extension was not given, and he was suspended as per order 20.11.1992. Though, according to the respondents, he was suspended on 20.11.1992, the memo of charges was issued only on 19.3.1994 as per
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Ext.P2. The representation filed as Ext.P4 dated 18.4.1994 for allowing him to take certain documents was replied stating that items Nos.6 and 7 are only available. The audit team has taken the other documents; therefore the said documents are not available for perusal. The memo of charges ended in a final order to realise an amount of Rs.15,566.21 from the applicant. The appeal the applicant/petitioner preferred against the said order resulted in Ext.P8 order after 4 years. The second appeal preferred before the authority was dismissed by Ext.P9 order dated 12.4.2000.
7. While rejecting the appeal, the second appellate authority has observed that "the appellant has a justifiable grievance against not sanctioning him leave for the period
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of absence from duty which was supposed to have been sanctioned to him ‘in due course.” It was further observed that if it is not turned till now, order should be passed at the earliest. Thus the 2nd appellate authority has declared that there is no unauthorised absence and directed sanctioning of leave. So the charge regarding unauthorised absence has been nullified by Ext.P9 order. Aggrieved by the order of 2nd appellate authority, a revision was filed before the Government, and he was called for a hearing on 20.6.2003. But the order in revision was passed only on 4.6.2004. In the revisional order, the Government has waived an amount of Rs.2707.50 from the total liability of Rs.15,566.21. After an elaborate consideration of facts and circumstances, the learned Single Judge found that the petitioner was not
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allowed to peruse documents Nos.1 to 5, which relied on to substantiate the charges against the petitioner. Thus, the learned Single Judge held that the petitioner could not go through the documents that authority relied on to take disciplinary actions against him. Hence, there is a clear violation of the principles of natural justice. The learned Single Judge took note of the fact that the officer who heard the revision on 20.6.2003 was not the person who passed the order. There is no material in support of the averments and assumption of the Government that it was passed by the same person who heard the revision. The learned Single also relied on the dictum laid down by the Apex Court in **State of Andhra Pradesh v. N Radhakrishnan [1998 (4) SCC 154]** . For these reasons,
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the learned Single Judge allowed the revision petition quashing Ext.P1, P2, P7, P8, P9, and P11.
8. We have scanned the judgment of the learned Single Judge and the documents produced on either side. It is a fact that the petitioner was not allowed to see documents Nos. 1 to 5, which were used by the authority to take disciplinary action against him. Unless the delinquent is put to notice, the documents used against him, and allowed to explain the same, it cannot be said that there is no violation of natural justice. Therefore, the learned single Judge was justified in interfering with the disciplinary proceedings and quashing all proceedings taken against him. Since the disciplinary proceedings initiated against the applicant/petitioner are found to be illegal, the period of
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suspension was directed to be treated as duty and to pay him salary for the said period. We are not interfering with the consequential order. The reasoning of the learned Single Judge in allowing the Writ Petition is correct and reasonable. Therefore, the Writ Appeal fails, and it is dismissed.
**sd/-**
**S.V.BHATTI, JUDGE**
**sd/-**
**BASANT BALAJI, JUDGE**
_dl/_
