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2019 DIGILAW 1029 (KER)

T. A. Abdulla v. Supplyco, represented by its Managing Director

2019-12-04

K.VINOD CHANDRAN, V.G.ARUN

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JUDGMENT : Arun, J. The appellant/writ petitioner, while working as Officer-in-charge at the Gandhi Nagar Hyper Market of the 1st respondent, the Kerala State Civil Supplies Corporation ('the Corporation', for brevity), was issued with Exhibit P1 charge memo dated 2.3.2017. The charge levelled against the appellant was that, from October, 2015 onwards, he had improperly distributed subsidised articles to the employees of the Corporation, whereby the Corporation sustained a loss of Rs.1,70,784.50. It was alleged that the action of the appellant amounted to indiscipline, negligence of duties and violation of the circulars of the Corporation, resulting in loss of faith. The appellant was required to show cause as to why disciplinary action in accordance with the Kerala State Civil Supplies Corporation Service Rules, 1974, (hereinafter called 'the Service Rules'), should not be initiated against him. 2. The appellant gave Exhibit P2 reply stating that more than 260 employees had registered for availing discount and subsidy through the Gandhi Nagar Hyper Market outlet and the Corporation had not issued proper directives/circulars regulating the distribution of subsidised items to its employees. It was pointed out that Exhibit P3 circular regulating distribution of subsidised items to the employees was issued only on 8.3.2017. 3. After submission of the explanation, personal hearing was conducted on 25.1.2017 and Exhibit P5 order issued, directing the appellant to remit an amount of Rs.1,70,784.50, failing which the amount was to be recovered with interest at the rate of 18%. Aggrieved, the appellant preferred Exhibit P6 appeal which was rejected under Exhibit P7 order. Thereupon, the appellant remitted an amount Rs.15,810/- towards the liability and submitted Exhibit P8, requesting to issue notice to the employees responsible for the balance liability. By Exhibit P9, specific direction was issued to recover the amounts due from the appellant forthwith and accordingly, Rs.66,349/- was deducted from his salary and pay arrears. The writ petition was thereupon filed seeking to quash Exhibits P5, P7 and P9 and to reimburse the amount of Rs.66,349.50 and for ancillary reliefs. 4. The Corporation refuted the contentions and opposed the prayers in the writ petition. It was submitted that the appellant was the Officer-in-charge at the Gandhi Nagar Hyper Market at Ernakulam from 17.4.2015 to 30.4.2017. The writ petition was thereupon filed seeking to quash Exhibits P5, P7 and P9 and to reimburse the amount of Rs.66,349.50 and for ancillary reliefs. 4. The Corporation refuted the contentions and opposed the prayers in the writ petition. It was submitted that the appellant was the Officer-in-charge at the Gandhi Nagar Hyper Market at Ernakulam from 17.4.2015 to 30.4.2017. That, as directed by the Accountant General, the internal audit team of the Corporation had conducted an inspection and had sanctioned the data from October, 2015 onwards, upon which irregularities amounting to Rs.1,70,784.50 was detected and charge memo issued. Exhibits R1(a), R1(b), R1(c) and R1(d) circulars were produced to contend that the guidelines for distribution of subsidised items were in existence during the relevant period of time. It was contended that the appellant had distributed the items in violation of the circulars and had purchased large quantity of items in his own name. An additional counter affidavit was also filed contending that the employees, whose names were shown in the OMS data sheet as purchasers of various items, had denied of having made any such purchase. 5. The primary contention urged before the learned Single Judge was regarding the illegality in imposing the punishment without conducting a proper enquiry. It was contended that no opportunity was provided to the appellant to verify the details in the Audit report, which was the sole basis on which the disciplinary proceedings were initiated and punishment imposed. That, no opportunity was provided to examine the employees who had purchased the subsidised articles during the relevant period. In short, the contention was that the penalty imposed in violation of the principles of natural justice and fair play was liable to be set aside. 6. The learned Single Judge held that Exhibit P5 order was rendered after considering the appellant's contentions. It was found that the quantity of the subsidised items that can be purchased by the card holders was limited by general circulars issued earlier, which were applicable to the employees also. It was held that there was no miscarriage of justice, patent illegality or arbitrariness vitiating Exhibits P5 and P7 orders. The learned Single Judge took note of the fact that the appellant had voluntarily paid an amount of Rs.15,810/- towards his liability. Based on the findings, the writ petition was dismissed. 7. Heard. Sri. It was held that there was no miscarriage of justice, patent illegality or arbitrariness vitiating Exhibits P5 and P7 orders. The learned Single Judge took note of the fact that the appellant had voluntarily paid an amount of Rs.15,810/- towards his liability. Based on the findings, the writ petition was dismissed. 7. Heard. Sri. Vinay V., learned counsel for the appellant and Smt. Molly Jacob, learned Standing Counsel for the Corporation. 8. The learned Counsel for the appellant reiterated the contention that non-adherence to the principles of natural justice had vitiated the entire proceedings and imposition of penalty. The learned Standing Counsel for the Corporation would submit that the Service Rules of the Corporation envisage only that a reasonable opportunity should be provided to the delinquent employee before imposition of penalty. It is contended that the requirement was complied with, the appellant having been afforded an opportunity of personal hearing. In support of this contention, reference is made to Rule 69(ii) of the Service Rules, which reads as under: “69. Penalties. (i)..... (ii) No employee shall be subject to the penalties in clause (b) to (f) of sub rule (1) of these rules except by an order in writing signed by the Managing Director and no such order shall be passed without the charges being formulated in writing and given to the said employee so that he shall have reasonable opportunity to answer them in writing or in person as he prefers, and in the latter case his defence may be taken down in writing and read to him. Provided that the requirements of this sub rule may be waived if the facts on the basis of which action is to be taken have been established in a Court of Law or where the employee has absconded or where it is for any other reason impracticable to communicate with him or where there is difficulty in observing them and the requirements can be waived without injustice to the employee. In every case where all or any of the requirements of this sub rule are waived, the reasons for so doing shall be recorded in writing. Provided further that the final orders under item (f) of sub rule (i) shall be passed only by the appointing authority.” 9. In every case where all or any of the requirements of this sub rule are waived, the reasons for so doing shall be recorded in writing. Provided further that the final orders under item (f) of sub rule (i) shall be passed only by the appointing authority.” 9. From the rival contentions, the question that emerges for consideration is as to what amounts to grant of reasonable opportunity, in the context of disciplinary proceedings. It is trite that unless a statutory provision, either specifically or by necessary implication, exclude the application of the principles of natural justice, the requirement has to be read into the provisions of the statute, particularly when the order has adverse civil consequences. In Uma Nath Pandey and Others v. State of U.P and Another [ AIR 2009 SC 2375 ], the Apex Court held natural justice to be another name for common sense justice. It was held that rules of natural justice are not codified canons but principles ingrained in the conscience of man. Natural justice is the administration of justice in a common sense liberal way based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. The Court observed that it is the substance of justice which has to determine the form. The following paragraph in Uma Nath is a lucid expression on the need for adherence to the principles of natural justice: “8. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414], the principle was thus stated : "Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "where art thou? hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat". Therefore, irrespective of whether the opportunity of hearing is provided in a statute or not, the principles of natural justice demand that such opportunity be read into the statute. 10. Was the opportunity of hearing provided to the appellant effective or a mere eyewash is an ancillary question. It is not in dispute that copy of the audit report, which was the sole basis on which disciplinary proceedings were initiated and penalty imposed, was not provided to the appellant. Even though in Exhibit P5 mention is made about the opinion obtained from the Regional Manager and Manager (A & I), copies of those documents were also not furnished to the appellant, thereby denying him an opportunity to refute their opinion. No opportunity for examination of witnesses and production of documents, was provided. Therefore, the opportunity of personal hearing afforded was just an empty formality. There was also no steps taken to quantify the loss caused other than the expression of opinion of the audit party. 11. The consideration of appeal by the appellate authority reflects an even more gory picture. While dismissing the appeal under Ext. Therefore, the opportunity of personal hearing afforded was just an empty formality. There was also no steps taken to quantify the loss caused other than the expression of opinion of the audit party. 11. The consideration of appeal by the appellate authority reflects an even more gory picture. While dismissing the appeal under Ext. P7, the appellate authority referred to charges which were never put to the appellant. The new charge considered by the appellate authority pertained to distribution of subsidy articles in excess of the prescribed quantity by utilising forged ration cards. The order of the appellate authority, is to say the least, preposterous. Hence, we find merit in the challenge against Exhibits P5 and P7. 12. As rightly contended by the learned Standing Counsel, having voluntarily remitted an amount of Rs.15,810/- towards the liability, the appellant is not entitled for refund of that amount. At the same time, the amount of Rs.66,349.50 recovered from the salary and arrears of pay of the appellant based on Annexure A5 and A7 orders should be repaid. The retirement benefits due to the appellant, if any, withheld for the reason of his punishment under EXT.P5 are liable to be disbursed within two months. In the result, the writ appeal is allowed as follows; i. The impugned judgment is set aside. ii. Exhibits P5, and P7 are quashed. iii. The respondents are directed to refund the amount of Rs.66,349.50 recovered from the appellant within a period of one month from the date of receipt of a copy of this judgment, failing which the amount shall be repaid with interest at the rate of 7% from the date of recovery and the interest component shall be recovered from the officers responsible for the delay. iv. The retirement benefits, if any, due to the appellant shall be disbursed within two months from the date of receipt of a copy of this judgment. v. The appellant is not entitled for refund of the amount of Rs.15,810/- remitted by him voluntarily.