V. Ambika v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY &** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** ## **THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930** **WA.No. 2163 of 2008()** **------------------------------** **AGAINST THE JUDGEMENT/ORDER IN WPC.30983/2007 Dated 13/08/2008** **....................** ## **APPELLANT/PETITIONER** **------------------------------------** **V.AMBIKA, AGED 49 YEARS, W/O.KUMARASWAMY LOWER DIVISION CLERK, GOVT.MOYAN MODAL GIRLS HIGHER SECONDARY SCHOOL, PALAKKAD.** **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENTS/RESPONDENTS** **----------------------------------------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY, GENERAL EDUCATION, THIRUVANANTHAPURAM.** **2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM.** **3. THE DEPUTY DIRECTOR OF EDUCATION, PALAKKAD.** **4. THE HEADMISTRESS, GOVT.MOYAN MODEL GIRLS HIGHER SECONDARY SCHOOL, PALAKKAD.** ## **SR. GOVERNMENT PLEADER SRI.BENNY GERVACIS FOR R1 TO R3** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Rs/** W.A.No.2163/2008 1 **J.B.KOSHY & THOMAS P. JOSEPH, JJ. ------------------------------W.A.NO.2163 OF 2008 () ----------------------------------Dated this the 6[th] day of November, 2008** **J U D G M E N T** ## **KOSHY,J.** Appellant/Petitioner was charge sheeted for the serious offence of misappropriation of money. Ext.P2 charge sheet shows that she was charge sheeted for the following offence: “1. That you Smt.V.Ambika, L.D.Clerk, while working as such and also holding the charge of C1 Section of the office of the Dy.Director (Education) Palakkad, absented from duty unauthorisedly from the A.N. of 20.11.1995 and 25.11.1995 onwards without handing over the set of keys of the cash chest and cash therein under your custody. 2. That you have embezzled Government money amounting to Rs.1,50,662.25 from the cash chest kept in the office which was at your disposal, as detailed in that Statement of allegations and there by committed breach of trust. 3. That you managed to manipulate official records by not accounting the money amounting to Rs.15,000/- W.A.No.2163/2008 2 withdrawn from the SBT. Palakkad on 30.10.1995 in the cash book and have misappropriated the amount. 4. That you have not maintained the cash book and other allied registers relating to the cash transactions of office of the Dy.Director (Edn.) Palakkad on 24.11.1995 although you were on duty on that date. 5. That you have failed to produce the miscellaneous cash book and connected receipt books before the D.L.R.Squad from the collectorate, Palakkad at the time of inspection on 24.11.1995 with a malicious and deliberate intention of avoiding physical verification of cash balance. 6. That you have unauthorisedly taken away certain important Government records such as office copy of arrear bills and some of the files. 7. That you failed to observe the directions issued by Administrative Assistant, office of the Dy.Director (Edn.) Palakkad to remit the huge amount, retained as cash and thereby disobeyed your higher authority. 8. That you have neglected to act as a reliable and responsible Public servant. Your action described above amounts to gross dereliction of duty and negligence involving embezzlement and misappropriation of Government money on your part.” W.A.No.2163/2008 3 Enquiry Officer found her guilty of the charges levelled against her. That was upheld by the appellate authority and each of the contentions were considered by the appellate authority and in revision, the State Government in Ext.P13 revisional order held as follows: “Government examined the matter in detail and lay emphasis on the following: i) She absented from duty on 20.11.1995, 21.11.1995 and from 25.11.1995 to 30.11.1995 unauthorisedly. ii) When the information that the cash chest was empty, was communicated to her, who was hospitalised she agreed in writing to make good the loss of money by 10.12.1995. iii) After two days she complained that the above statement was written by her by force and threats from her colleagues. This is unbelievable as she/her husband had not complained to the police about such an incident. Moreover such a threat in a public place like a hospital must have attracted the attention of many. iv) The incumbent was holding the charge of C.I. Seat in the office of the Deputy Director of Education, Palakkad and was dealing with cash transactions since 1994. She was the custodian of the W.A.No.2163/2008 4 cash and the keys of the cash chest was with her. She was enjoying special pay allowable to the employees engaged in cash transactions. v) From the aforesaid, Government are convinced that Smt.V.Ambika should be punished for embezzlement and misappropriations of Government money, breach of trust, insubordination, dereliction and willful negligence of duty.” The main contention of the appellant is that she was acquitted by the Criminal Court on the ground that misappropriation of money was not proved as required under the Criminal Law. Despite acquittal, enquiry can be conducted and the disciplinary authorities can consider the findings of the enquiry officer and rely on the same. The learned Single Judge has also considered the matter and relied on the decision of the Supreme Court in **Kamaladevi Agarwal v. State of West Bengal (2002 (1) SCC 555)** and **Manager, Reserve Bank of India v. S.Mani (2005 (5) SCC 100)** , in support of the above view. The jurisdiction of this Court in interfering in the punishment is also very limited. Apart from the alleged misappropriation, other charges are also included W.A.No.2163/2008 5 in the charge sheet. Punishment imposed is only barring of two increments apart from recovery of money lost. Interference in the punishment imposed cannot be interfered by the Court by exercising the jurisdiction for review except in exceptional circumstances as held by the Honourable Supreme Court in **State of Andhra Pradesh v. Chitra Ventakata Rao (1975 (2) SCC 557).** Before the appellate authorities, it was never contended that failure to give the report of the enquiry officer before proposing the punishment vitiated the punishment. No prejudice is caused to the petitioner in not being provided with the enquiry report before punishment was proposed. Enquiry was conducted in accordance with the principles of natural justice. All discrepancies pointed out by the petitioner were considered by the appellate and revisional authorities. In the absence of any prejudice to the petitioner, punishment cannot be interfered with as held in **Managing Director, ECIL v. B.Karunakar (AIR 1994 SC 1074)** and in **Divisional Manager, Plantation Division v. Munnu Barrick (2005 (2) SCC 237).** Punishment is also not disproportionate to the misconduct proved in the enquiry. In fact, authorities W.A.No.2163/2008 6 were too lenient. It is submitted that her pay is only Rs.6,790/-. Total amount ordered to be recovered is Rs.1,50,662.25. It is requested that appellant may be allowed to pay the same in instalments. The learned Single Judge has already allowed her to pay the amount in 20 instalments. She has got only less than five years of service. In these circumstances, we allow her to pay the amount in 40 equal monthly instalments instead of 20 monthly instalments, starting from the month of November, 2008. With the above observations, this appeal is disposed of. ## **J.B.KOSHY, JUDGE** **THOMAS P. JOSEPH, JUDGE** prp ## **J.B.KOSHY & THOMAS P. JOSEPH, JJ.** **--------------------------------------------------------** ## **M.F.A.NO. OF 2006 ()** **---------------------------------------------------------** **J U D G M E N T** **---------------------------------------------------------** **6[th] November, 2008**