The Division Bench dismissed writ appeals challenging confirmed disciplinary orders barring increments and the exclusion of the appellant from a promotion list due to admitted misconduct and pending action.
Writ Appeals W.A.Nos. 1550 & 1619 of 2011 were dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 10TH DAY OF JUNE 2014/20TH JYAISHTA, 1936
WA.No.1550 of 2011 IN WP(C).4899/2010
AGAINST THE JUDGMENT IN WP(C) 4899/2010 of HIGH COURT OF KERALA DATED 18-03-2011
APPELLANT/PETITIONER:
GEORGE EAPEN, AGED 56 YEARS, PARAPURACKAL VEEDU, MYTHREEPURAM, THRIKKAKARA.P.O. COCHIN-21, (RETD. SENIOR SUPERINTENDENT O/O. THE ASSISTANT DIRECTOR OF PANCHAYAT ERNAKULAM.) BY ADVS.SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN
RESPONDENTS/RESPONDENTS:
R4 BY ADV. SRI.S.SHANAVAS KHAN R1 BY GOVERNMENT PLEADER SMT.P.A.RAZIYA
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 10-06-2014, ALONG WITH WA. 1619/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
HARUN-UL-RASHID & ANIL K.NARENDRAN, JJ.
W.A Nos.1550 & 1619 Of 2011
Dated this the 10th day of June, 2014.
J U D G M E N T
Harun-Ul-Rashid, J.
The petitioner in W.P(C).No.4899/2010 is the appellant in W.A.No.1550/2011, filed against the judgment dated 18.3.2011. The petitioner in W.P.(C).No.15479/2010 is the appellant in the connected appeal, namely, W.A.No.1619/2011.
1.5 Lakhs from the District treasury and on verification it was found that he has not filed vouchers for 12,630/-. The allegation is that the petitioner without maintaining necessary vouchers withdrawn amount from the Treasury and misappropriated the amount causing loss to the Panchayath. After affording an opportunity of being heard, the disciplinary authority issued Ext.P3 show cause notice proposing to impose::2::
W.A Nos.1550 & 1619 Of 2011
punishment of barring of two increments with cumulative effect. Ext.P4 is the explanation submitted by the petitioner.
While proceedings are pending thus, petitioner and four others submitted a letter dated 17.3.2006, undertaking to remit the amount allegedly misappropriated by them. The Deputy Director of Panchayaths issued Ext.P5 proceedings directing the said five persons to remit the respective share of the amount misappropriated. The petitioner remitted ` 3,000/which is his share of the amount misappropriated.
proceedings and issued Ext.P6 proceedings in W.P.(C). No.4899/2010 imposing punishment of barring of one increment with cumulative effect. Against the punishment imposed, the petitioner preferred Ext.P7 appeal before the 1st respondent. The 1st respondent considered the matter and dismissed the same vide Ext.P10 proceedings. Exts.P6 & P10 proceedings are challenged before this Court. The learned Single Judge considered the contentions raised by the petitioner challenging Exts.P6 & P10 proceedings. Disciplinary authority, appellate authority and the learned Singe Judge considered the mater at length. This Court observed that
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W.A Nos.1550 & 1619 Of 2011
admittedly, the petitioner worked as a Junior Superintendent at Thrikkakara Grama Panchayath at the relevant time and had
the responsibility of maintaining the vouchers justifying the withdrawal of amounts from District Treasury. When audit was conducted after five years, it was found that certain amounts were illegally withdrawn. When the misappropriation was came to the notice of the disciplinary authorities, action was initiated. This Court found that in such a situation, the delinquent cannot contend that the delay has occurred and therefore the proceedings should be quashed. This Court has also rightly observed that unless the delay has resulted in any prejudice, which is to be pleaded and proved, delay by itself will not invalidate the proceedings against a delinquent. This Court also found that the petitioner and other officers themselves submitted letter dated 17.3.2006 agreeing to remit the amount allegedly misappropriated by them. The offers made by the delinquent employees were accepted and on that basis the petitioner has also remitted the amount. Thus, misconduct has been admitted by the petitioner, and, if that be so, the petitioner cannot plead for exoneration.
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W.A Nos.1550 & 1619 Of 2011
was filed by the very same petitioner seeking a declaration that the petitioner is entitled to be promoted to the post of Senior Superintendent with effect from the date of promotion of his immediate junior and for a direction directing the 2nd respondent to dispose of Exts.P4 & P6 representations in accordance with law.
alia stated that the petitioner was facing a disciplinary action and therefore, the Department Promotion Committee excluded
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W.A Nos.1550 & 1619 Of 2011
him from selection. In the connected writ petition, we had noticed that the disciplinary action initiated against the petitioner resulted in an order imposing punishment withholding one increment with cumulative effect and was confirmed in appeal by the Government. Writ petition filed challenging the said proceedings was dismissed by this Court and confirmed by the Division Bench in writ appeal. This Court rightly held that in the light of Exts.P6 & P10 proceedings in W.P.(C).No.4899/2010, exclusion of the petitioner from the select list is justified. This Court consequently, dismissed the writ petition. In the circumstances, W.A.No1619/2011 also fails and accordingly, dismissed.
HARUN-UL-RASHID,
bkn/-
2 issues framed by the court
Whether the appellant is entitled to promotion when excluded due to ongoing disciplinary proceedings confirmed by this Court?
Whether the appeals against disciplinary orders and denial of promotion should be allowed?
George Eapen
State of Kerala
Secretary to Government, Local Self Department
Director of Panchayath
Deputy Director of Panchayath
Secretary, Trikkakara Grama Panchayat
Harun-Ul-Rashid
Anil K.Narendran
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court