SOMASUNDARA PANICKER Vs. CHIEF ENGINEER, P.H.E.D.
HIGH COURT OF KERALA
Chief Engineer, P.H.E.D.
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V.P.GOPALAN NAMBIYAR,J. -
(1.) THE appellant's writ petition "O.P.No.4233 of 1971 to quash the disciplinary proceedings taken against him,was dismissed by a learned Judge of this Court.Hence this appeal.
(2.) THE appellant was an Upper Division Store -keeper in the Public Health Engineering Department,now located at Palarivattom,and,at the time of the charge and the enquiry which resulted in his punishment,functioning in the Foreshore Road,Perumanoor,Ernakulam.He was proceeded against by Ext.P -1 charge for shortage of stock on the ground that a quantity of about 391.13 millimetres of 32 mm.G.I.pipes was found missing from the stock on 17th December 1968 by the Junior Engineer,Stores.The charge recited that since the stores were in the appellant's custody,he was responsible for the shortage.Ext.P -1 requested the appellant to show cause against the disciplinary action under the Civil Service(Classification,Control and Appeal)Rules.A statement of allegations was attached to the charge.But the same again merely stated that as the actual custodian of the stores,the appellant was responsible for their safe custody and therefore answerable for the loss.Ext.P -2 is a copy of the appellant's explanation and Ext.P -4 is the Report of the Enquiry Officer.It may be mentioned that according to the uncontroverted averments in paragraphs 3 and 4 of the writ petition,the shortage of the pipes was discovered on the morning of the 17th,when the appellant came to the office.He then telephoned the Junior Engineer who contacted the Executive Engineer and came to the spot along with him.A criminal complaint for theft of the missing pipes was preferred which was eventually referred as undetected.The relevant portion of Ext.P -4 reads as follows: œBut it may be pointed out that if some vigilant and prompt 5 action had been taken at the time(of ?)the shortage was noticed,that is on 12/68 itself,by making enquiries with the contractors to whom these pipes were previously issued,some clue as to the whereabouts of the missing pipes could have been obtained and the culprit booked.In view of the above facts I am not able to pin point the responsibility with regard to the missing pipes on any particular officer " ;.
In the light of the above report,the disciplinary authority,namely,the Chief Engineer,by Ext.P -5 order,found that the petitioner was responsible for the shortage and proposed to recover the value of the missing pipes,namely Rs.3638.05 from the petitioner.His explanation against the proposed action was called for.It may be noted that even in Ext.P -5,the Disciplinary Authority only put the matter on the ground that the petitioner,as the actual custodian of the stores,responsible for their proper issue and charged with the duty of watching the stores,is answerable for the shortage.The petitioner submitted his explanation Ext.P -6;and eventually,by Ext.P -10,recovery of the amount from the petitioner was ordered(the amount was limited to Rs.2689.05 in accordance with the second show cause notice Ext.P -7 ).Even in Ext.P -10 the only ground for the action was that being the custodian of the stores,the petitioner was bound to account for the materials and their custody.
The petitioner's counsel invited our attention to Rule 11(1 )(iv )(a)of the Kerala Civil Service(Classification,Control and Appeal)Rules,1960,which reads; œ11. The nature of penalties ."( 1)The following penalties may,for good and sufficient reasons and as hereinafter provided,be imposed on a Government servant,namely:"
(iv )(a)Recovery from pay of the whole or part of any pecuniary loss caused to a State Government or the Central Government or to a local authority by negligence or breach of orders " ;.
It was stressed that having regard to the above Rule,negligence or breach of orders had to be specifically found before recovery from pay of the whole or any part of the pecuniary loss could be directed,and that there is no charge against the appellant either of negligence or breach of orders,nor any finding by the Enquiry Officer or by the Disciplinary Authority.We have already referred to the relevant parts of the report of the Enquiry Officer and the proceedings of the Disciplinary Authority.We are in agreement with counsel for the appellant that attention was not concentrated upon the essential elements of the Rule which alone would warrant action by way of recovery from pay,at any of the stages.The mere fact that the stores entrusted to the appellant were found missing,especially during the time when he was not expected to stay in the office,cannot by itself be token negligence on the part of the appellant;and we have not been told how,and on what grounds the appellant could be regarded as having been guilty of any breach of orders to which the loss of the pipes could be traced.In the circumstances,the charge and the impugned proceedings are unsustainable and are liable to be quashed.We allow this appeal and set aside the judgment of the learned Judge.O.P.No.4233 of 1971 will stand allowed and Ext.P -10 order will stand quashed.There will be no order as to costs.;
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