T.A Abdulla v. SupplyCo and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941** ## **WP(C).No.41378 OF 2018(V)** ## **PETITIONER/S:** **T.A ABDULLA AGED 58 YEARS JUNIOR ASSISTANT, SUPPLYCO, TALUK DEPOT, KOCHI. BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENT/S:** |**1**|**SUPPLYCO,**| |---|---| ||**REPRESENTED BY ITS MANAGING DIRECTOR, MAVELI BHAVAN,**| ||**MAVELI ROAD, GANDHI NAGAR,**| ||**ERNAKULAM- 682020.**| |**2**|**CHAIRMAN AND MANAGING DIRECTOR,**| ||**KERALA CIVIL SUPPLIES CORPORATION, SUPPLYCO, MAVELI**| ||**BHAVAN, MAVELI ROAD, GANDHI NAGAR,**| ||**ERNAKULAM- 682020.**| |**3**|**ADDITIONAL GENERAL MANAGER ( P AND A),**| ||**KERALA CIVIL SUPPLIES CORPORATION, SUPPLYCO, MAVELI**| ||**BHAVAN, MAVELI ROAD, GANDHI NAGAR, ERNAKULAM- 682020.**| |**4**|**ASSISTANT MANAGER,**| ||**SUPPLYCO, TALUK DEPOT, KOCHI- 682020.**| ||**BY ADV. SMT.MOLLY JACOB,SC,SUPPLYCO**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.6.2019, THE COURT ON 8.8.2019 DELIVERED THE FOLLOWING:** **WP(C).No.41378 OF 2018(V)** **2** ## **JUDGMENT** ## **Dated this the 8th day of August 2019** This writ petition is filed by a person working as Junior Assistant under the Civil Supplies Corporation challenging Ext.P5 order as also Exts.P7 and P9 orders passed in departmental proceedings against the petitioner. 2. It is submitted that the petitioner had been issued with Ext.P1 Charge Memo on 2.3.2017. The allegations were to the effect that while the petitioner was working as office in-charge of the Gandhinagar Hypermarket, it was found that subsidized items having a value of Rs.1,70,784.50 had been distributed without reference to the limit prescribed for the same to employees of the Corporation and that as such, the differential cost is liable to be realized from the petitioner. 3. The petitioner submitted Ext.P2 reply dated 28.3.2017. His contention was that the circulars referred to had provided for limit of quantity of items **WP(C).No.41378 OF 2018(V)** **3** which could be purchased by employees of the Civil Supplies Corporation for the first time, much later than the period when the irregularity is alleged as against the petitioner. Ext.P3 circular dated 8.3.2017 is produced by the petitioner and relied upon to contend that the quantity of subsidized items which could be purchased by employees had been fixed for the first time by the said circular. It is stated that Ext.P4 report submitted by the Area Manager on 29.11.2017 would also show that the petitioner had not committed any irregularity with ulterior motives and that the mistake occurred due to the fact that there was no limit prescribed as regards the employees of the Corporation. 4. It is stated that the petitioner had been put on notice and heard. Thereafter, Ext.P5 order was passed directing the petitioner to remit the amount of Rs.1,70,784/-. Though the petitioner submitted Ext.P6 appeal, Ext.P7 order was passed by the Chairman and Managing Director, rejecting the appeal. Thereafter, the petitioner again approached the Chairman by Ext.P8 request. Ext.P9 order was passed on 19.11.2018. It is **WP(C).No.41378 OF 2018(V)** **4** stated that an amount of Rs.15,810/- had been remitted by the petitioner on 8.11.2018. The remaining amount of Rs.1,54,975/- was therefore directed to be realized from the pay revision benefits due to the petitioner. It is stated that such deduction has been carried out from the amounts due to the petitioner as well. 5. The learned counsel for the petitioner would contend that based on Ext.P11 audit report, Ext.P12 directions were issued to the Outlet Managers and Ext.P13 circular dated 4.1.2019 the petitioner would not be liable to be mulcted with the liability of meeting the entire amount as stated in Ext.P1 on his own. It is stated that Ext.P13 provides for apportionment of liability and the same has also not been taken note of, while passing the impugned orders. 6. The learned counsel would rely on the decision of the Apex Court in _**M.V.Bijilani v. Union of India and Others [(2006) 5 SCC 88]**_ to contend that the enquiry has to be confined specifically to the allegations as raised in the charge memo and no enquiry can be conducted as regards the charges which are not made known to the delinquent employee. It is contended that **WP(C).No.41378 OF 2018(V) 5** the petitioner had been alerted only of a charge as regards excess subsidy items purchased by employees of the Corporation and that the findings contained in the orders against him to the effect that he had purchased excess items himself is completely unfounded. It is stated that the entire proceedings are clearly vitiated by want of application of mind. It is stated that Ext.P3 circular dated 8.3.2017 limits the quantity which can be purchased by employees of the Corporation for the first time and that as such, the allegation that the petitioner had permitted excess purchases on dates prior to 8.3.2017 is completely unsustainable. It is submitted that the petitioner had worked as outlet in-charge in the Gandhinagar depot only from 17.4.2015 to 30.4.2017 and the charges against him are with regard to the period from October 2015 to March 2016. It is stated that the petitioner has retired from service on 31.1.2019 and that the amounts recovered are due to be repaid to him. 7. A detailed counter affidavit has been placed on record by the first respondent. It is contended therein that the audit report revealed that the **WP(C).No.41378 OF 2018(V) 6** petitioner had sold subsidized items in excess of quantity to employees of the Corporation in the year 2015. It is stated that the outlet was inspected and the OMS data from October 2015 onwards was collected which led to the issuance of Ext.P1 Charge Memo. It is stated that the sale of subsidized items and the quantities thereof are the sole responsibility of the petitioner and the petitioner is therefore liable to answer for the excess sale. It is stated that the quantity of items to be sold at subsidized rates is specifically provided in circulars dated 5.9.2009, 6.11.2012 and letter dated 25.9.2013. It is stated that the quantities of subsidized items to which a card holder is eligible per month is specifically provided and the contention that the employees were eligible to purchase the said items without any limit till the circular of 8.3.2017 was issued is completely untenable. It is stated that it was when irregularities in the purchase of subsidized items by employees of the Corporation were brought to the notice of the Corporation that specific circulars were issued pointing out the limit prescribed and stating that no **WP(C).No.41378 OF 2018(V)** **7** purchase beyond the prescribed limit can be permitted. It is stated that the contentions raised by the petitioner were considered in detail while passing Ext.P5 order and while affirming the same in appeal. It is further contended that the allegations raised by the petitioner have no merit whatsoever, since it was on the specific pleadings raised by the petitioner that memos had been issued to the employees who had allegedly made purchases from the outlet in question. It is stated that such employees had submitted replies stating that they had not purchased such items. In the above view of the matter, the contentions of the petitioner are only to be rejected, it is submitted. 8. I have considered the contentions advanced on either side. The petitioner had been issued with Ext.P1 memo. The allegations in Ext.P1 is to the effect that the petitioner had, while working as outlet incharge, permitted the purchase of subsidized items much in excess of the quantities fixed. The petitioner had submitted Ext.P2 reply. Petitioner's contentions have been considered and Ext.P5 order had been rendered. The contention of the petitioner that the circular **WP(C).No.41378 OF 2018(V)** **8** dated 8.3.2017 had restricted the quantity of items and that the restriction would be applicable only thereafter does not seem to be a possible explanation in view of the fact that the quantity of subsidized items that can be purchased by any card holder was specifically limited by earlier circulars as early as in the year 2009. The petitioner's contention that only card holders are subject to the restriction and that employees could purchase subsidized items in unlimited quantities does not appear to be borne out by any logic. The learned Standing Counsel appearing for the Corporation would submit that the limit was applicable to all card holders and to employees of the Corporation in equal measure. On noticing that employees of the Corporation were purchasing articles far in excess of the quantity fixed, Ext.P3 circular was issued interdicting such sale. It is submitted that this does not mean that the purchases made in excess of the quantities prescribed before the issuance of Ext.P3 was validated in any manner. The learned counsel would contend that the purchase of large quantities of subsidized and non subsidized items by **WP(C).No.41378 OF 2018(V)** **9** the employees was a clear irregularity for which the outlet in charge who had permitted such purchases or who was responsible for the loss caused to the Corporation because of such purchases would be accountable. 9. I am of the opinion that there is no miscarriage of justice or any patent illegality or arbitrariness vitiating Exts.P5 and P7 orders issued in disciplinary proceedings as against the petitioner. The petitioner had been put on notice that an amount of Rs.1,70,784/- is liable to be recovered from him with regard to the irregular supply of subsidized items to employees of the Corporation. His explanation has been considered and reasoned orders have been passed. It is stated that the petitioner had voluntarily made payment of an amount of Rs.15,000/- to the Corporation. The balance amount of Rs.1,54,975/- has already been realized from the salary and arrears due to him. The allegation raised by the petitioner that he is being inflicted with the punishment for a charge which does not find a place in Ext.P1 Charge Memo is also not tenable since the petitioner has been found guilty of **WP(C).No.41378 OF 2018(V) 10** only the charges as contained in Ext.P2. The allegations to the contrary cannot be accepted in view of the materials placed on record. In the result, the writ petition fails and is accordingly dismissed. **Sd/-** sab **ANU SIVARAMAN JUDGE** **WP(C).No.41378 OF 2018(V)** **11** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 THE TRUE COPY OF THE CHARGE MEMO DATED 02.03.2017 ISSUED BY THE 3RD RESPONDENT.** **EXHIBIT P2 THE TRUE COPY OF THE REPLY DATED 28.03.2018 TO THE CHARGE MEMO.** **EXHIBIT P3 THE TRUE COPY OF THE CIRCULAR NO.5/2017 DATED 08.03.2017 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P4 THE TRUE COPY OF THE LETTER DATED 29.11.2017 OF THE 4TH RESPONDENT.** - **EXHIBIT P5 THE TRUE COPY OF THE PROCEEDINGS NO.D221382/17 DATED 09.02.2018 OF THE 3RD RESPONDENT.** - **EXHIBIT P6 THE TRUE COPY OF THE APPEAL PETITION DATED 24.04.2018 FILED BY THE PETITIONER.** - **EXHIBIT P7 THE TRUE COPY OF THE PROCEEDINGS DATED 13.08.2018 PASSED BY THE 2ND RESPONDENT.** - **EXHIBIT P8 THE TRUE COPY OF THE REPRESENTATION DATED 08.11.2018 FILED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P9 THE TRUE COPY OF THE LETTER DATED 19.11.2018 OF THE 3RD RESPONDENT.** - **EXHIBIT P10 THE TRUE COPY OF THE SALARY SLIP OF THE PETITIONER FOR THE MONTH OF NOVEMBER, 2018.** - **EXHIBIT P11 THE TRUE COPY OF THE RELEVANT PAGE OF THE AUIT REPORT DATED 24.11.2016 OF THE JUNIOR MANAGER INTERNAL AUDIT WING ERNAKULAM.** - **EXHIBIT P12 THE TRUE COPY OF THE INSTRUCTIONS ISSUED VIDE NOTICE NO.MIS-22193/04 DATED 12.1.2016 OF THE MANAGER (MIS)** - **EXHIBIT P13 THE TRUE COPY OF THE CIRCULAR NO.01/2019 DATED 4.1.2019 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P14 THE TRUE COPY OF THE CORRESPONDENCE NO.IAW6-808/07(3) DATED 15.12.2016 OF MANAGER (AUDIT AND INSPECTION)** **WP(C).No.41378 OF 2018(V)** **12** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R1 A** **TRUE COPY OF THE CIRCULAR NO.16/2015 DATED 16.9.2015 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT R1 B TRUE COPY OF THE CIRCULAR NO.16/09 DATED 5.9.2009 ISSUED BY THE 2ND RESPONDENT. EXHIBIT R1 C TRUE COPY OF THE LETTER NO.M2/4047/2005 DATED 6.11.2012 ISSUED BY 2ND RESPONDENT.** **EXHIBIT R1 D TRUE COPY OF THE LETTER NO.M2/4047/2005 DATED 25.9.2013 ISSUED BY 2ND RESPONDENT** **EXHIBIT R1 E TRUE COPY OF THE LETTER DATED 16.12.2017 OF REGIONAL MANAGER TO 3RD RESPONDENT.** **EXHIBIT R1 F TRUE COPY OF THE NOTICE DATED 13.2.19 ISSUED BY ADDITIONAL GENERAL MANAGER ( P&A) TO SMT.TRESA VINEETHA V.WYTES, SENIOR ASSISTANT. EXHIBIT R1 G TRUE COPY OF REPLY TO EXT.R1(F) RECEIVED FROM SMT.TRESA VINEETHA V.WYTES, SENIOR ASSISTANT I.** **EXHIBIT R1 H TRUE COPY OF THE REPLY GIVEN BY ADDITIONAL GENERAL MANAGER (FINANCE) TO THE NOTICE RECEIVED FROM THE ADDITIONAL GENERAL MANAGER (P&A).** **EXHIBIT R1 I TRUE COPY OF THE REPLY GIVEN BY MR.SIVANAND KAMMATH, ASSISTANT SALESMAN, REEGA ARAVINDAN, SENIOR COMPUTER OPERATOR, DINKAR G.M., JUNIOR MANAGER (ACCOUNTS), RAJITHA.K.A. EXECUTIVE TRAINEE AND SMT.ANU KRISHNAN, SENIOR ASSISTANT TO THE NOTICE RECEIVED FROM ADDITIONAL GENERAL MANAGER (P&A).**