Research › Search › Judgment

Kerala High Court · body

2001 DIGILAW 269 (KER)

K. Omanakuttan Pillai v. The Managing Director

2001-06-01

M.R.HARIHARAN NAIR

body2001
Judgment :- M.R. Hariharan Nair, J. During the period 11-4-1982 to 31-3-1984 the petitioner, on deputation from his parent department, namely, Civil Supplies Department, was in charge of an Indian Made Foreign Liquor outlet run, by the Kerala State Civil Supplies corporation at Kollam. After his reversion to the parent department, charges were framed against him vide Ext. P1 alleging that in the audit it was found that there is shortage of stock worth Rs. 21,027/- and alleging that after adjusting excess stock found to the tune of Rs. 1,031/-, a further amount of Rs. 19,996/- was due from the petitioner. Misappropriation of funds was alleged. Though the petitioner filed Ext. P2 reply, the disciplinary proceeding was closed vide Ext. P3 with direction to recover the said sum of Rs. 19,996/- from the petitioner. Pursuant to Ext. P4 appeal the petitioner was heard and Ext. P5 order was passed. According to the petitioner, though the petitioner's contentions were found acceptable by the Appellate Authority, the recovery was sustained on the footing that at the time when the Beverages Corporation took over liquor trade from the Civil Supplies Corporation a breakage allowance of o.25% alone was allowed and that breakage in question claimed by the petitioner was beyond the limit. 2. According to the learned counsel for the petitioner, merely on the ground that the breakage in question exceeded what was admissible under the previous arrangement he cannot be mulcted with liability. It is pointed out that once the petitioner's contentions are accepted, there is no scope for ordering further recovery. 3. I have heard the learned counsel for the Civil Supplies Corporation as also the learned Government Pleader. 4. The thrust of the argument of the learned counsel for Civil Supplies Corporation is on the fact that the petitioner was bound to maintain true and correct accounts. The fact that excess stock was also found, as made clear in Ext. P1, is highlighted. According to him, it was the negligent handling of the stock and want of proper supervision by the petitioner that resulted in alleged damages and for that he alone is responsible. 5. It is seen from para 8 of Ext. P5 order that the Appellate Authority examined the matter in detail with reference to the relevant records. P1, is highlighted. According to him, it was the negligent handling of the stock and want of proper supervision by the petitioner that resulted in alleged damages and for that he alone is responsible. 5. It is seen from para 8 of Ext. P5 order that the Appellate Authority examined the matter in detail with reference to the relevant records. It found that the reasoning of the Corporation that being the Officer-in-Charge of the outlet and custodian of stock, the petitioner is bound to see that bottles were handled with utmost care without any damage and that there should be no broken bottle as bottles are handed over to the Shop Manager in a well-packed cover is not a reasonable stand. The Government accepted the contention of the petitioner that however well-packed the bottles may be, there may be breakages during transit. The Government also accepted the contention that it was not possible for the petitioner to open every carton to verify and ensure that all the bottles are in unbroken condition when the consignment arrives. The Government accepted the position that broken bottles will come to the notice of the custodian only when the cartons are opened for sale and also that all such broken bottles have been duly accounted by the petitioner and certified by the Inspecting Officers. It was also observed that such Inspecting Officers certify the broken bottles only after physical verification and that there is no broken bottles as accounted by the petitioner. In Circular No. 52/81 issued by the Corporation it is laid down that if shortage is noticed, it should be reported to the Regional manager or Head Office for ratification, if it is within permissible limits. There is no case that the petitioner has not done so. The Government ultimately accepted the contention of the petitioner that while the breakages are brought to the notice of the Inspecting Officers, there is no point in not allowing reasonable percentage. It is after coming to the said conclusions that the Government, as Appellate Authority, decided to uphold the order for recovery of the amount in question. That was done purely for the reason that when the Beverages Corporation took over liquor trade from the Civil Supplies Corporation a breakage allowance of 0.25% was allowed. It is after coming to the said conclusions that the Government, as Appellate Authority, decided to uphold the order for recovery of the amount in question. That was done purely for the reason that when the Beverages Corporation took over liquor trade from the Civil Supplies Corporation a breakage allowance of 0.25% was allowed. I find considerable merit in the contention of the petitioner that once it is accepted that there was no irresponsibility in the manner of handling stocks on the part of the petitioner and that he had brought to the notice of the Inspecting Officers the breakages in the proper manner, there is no justification for ordering recovery of damages merely on the ground that the percentage involved, though below 1%, exceeds the limit that was found acceptable at the time when the Beverages Corporation took over the liquor trade from the Civil Supplies Corporation. The said final conclusion is against the admitted stand of the Government with regard to the contentions of petitioner. According to me, once it is found that there was no irregularity on the part of the petitioner in managing affairs or in handling the damaged goods or accounting the same and also in the matter reporting the same to the Inspecting Officers there is no justification for directing recovery of any damages. 6. The learned counsel for the Civil Supplies Corporation relied on the decisions in Apparel Export Promotion Council v. A.K. Chopra (AIR 1999 S.C. 625) and in High Court of Judicature at Bombay v. Shashikant S. Patil and another (2000)1 SCC 416). In the former case it was held that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts; that the Appellate Authority has also the power and jurisdiction to re-appreciate the evidence and come to its own conclusion and that once such findings are recorded, the High court, in Writ Jurisdiction, may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. It was also held that the adequacy or inadequacy of the evidence cannot be canvassed before the High Court. The High Court cannot substitute its own conclusion with regard to the guilt of the delinquent for that of the departmental authorities. It was also held that the adequacy or inadequacy of the evidence cannot be canvassed before the High Court. The High Court cannot substitute its own conclusion with regard to the guilt of the delinquent for that of the departmental authorities. It was also held that the Court exercising judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural irregularities. It was reiterated that judicial review is directed not against the decision; but is confined to the examination of the decision-making process. In the latter case the Apex Court found, while dealing with interference with the disciplinary action against the Judicial Officer, that interference in exercise of power under Article 226 of the Constitution with the findings of the disciplinary authorities would be possible only if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case or if the conclusion made by the authority, on the very face of it, is wholly arbitrary and capricious that no reasonable persons could have arrived at such a conclusion, or on grounds very similar to the above. 7. The conclusions in the ultimate direction contained in Ext. P5 order may now be approached from the above perspective. I have already found that the Government, as Appellate Authority, on a re-appreciation of the evidence adduced during enquiry, has chosen to accept all the contentions raised by way of defence by the petitioner. Once such findings are made, there was no scope for directing recovery of the amounts merely because the percentage in question exceeded that fixed by another authority. Of course there is no case that procedural irregularities are there; but even so, there is no direct link between the conclusions of the Appellate Authority with regard to the acts of the petitioner and the ultimate direction. The Direction for recovery is extraneous to the findings entered by the Appellate Authority itself. On the face of it, the ultimate direction is arbitrary and the decision making process is faulty. The Direction for recovery is extraneous to the findings entered by the Appellate Authority itself. On the face of it, the ultimate direction is arbitrary and the decision making process is faulty. Merely because the Beverages Corporation had fixed a limit of 0.25%, the petitioner cannot be found fault with because there is always the possibility that in a particular case damages in excess of the usual limits might occur. It is for the Disciplinary Authority to find on evidence that on the facts of this case, there was actually no such excessive breakage and that there was any malpractice effected by the petitioner. In the absence of any such finding, I am of the view that the direction for recovery of the amount in question is unsustainable. Consequently, the Original Petition is allowed and Exts. P3 and P5 orders are set aside.