M.C. KUNJAN Vs. THE COMMISSIONER IRINJALAKUDA MUNICIPALITY

JUDGEMENT

(1.) Petitioner is a last grade servant and is working as Cartman in the service of Irinjalakuda Municipality. It appears, certain complaints were made against the petitioner alleging misappropriation and irregularities in the Kattungalchira Kaliman Vyavasaya Sahakarana Sanghom, of which he is the President. By Ext.P3 dated 4-6-1991, petitioner was directed to produce certain records of the Society in connection there- with. By Ext. P4, he was also directed to appear on 25-6-1991 before the office of 1st respondent along with records. Petitioner did not produce any records. But he sent a reply Ext. P5 dated 21-6-1991, stating that he was not able to make out who is the complainant or what is the nature of the complaint and that it was also not clear who committed misappropriation. He also complained that no complaint was forwarded to him and that without furnishing the complaint, he would not be able to understand anything.He further stated that 1st respondent should be aware that those documents would not be in his possession and normally, it was the Secretary who keeps such document and that therefore he did not understand the meaning of directing him to produce such documents. On receipt of this reply, 1st respondent passed Ext. P6 order, placing the petitioner under suspension. Ext. P6 stated that there was a preliminary investigation by the Health Inspector Grade II in regard to the complaint of misappropriation against the petitioner filed by one T. K. Krishanan, that in the enquiry,petitioner denied allegations of misappropriation, but admitted that he was the President of the Society and that in order to collect more evidence, the Secretary as well as the petitioner was directed to produce documents and despite that he did not appear before the office pursuant to the notice issued to him and sent a reply ridiculing the contents of notice directing production of the documents. It is also stated therein that the petitioner refused to cooperate with the enquiry and adopted a very defiant attitude and in the circumstances, it was decided that it would not be in the public interest to permit the petitioner to be in service pending detailed enquiry into the matter.

(2.) In this Original Petition, petitioner has challenged the proceedings Ext. P6. It is averred in the petition that the petitioner is a member of the Union of Municipal Employees owing allegiance to All India Trade Union Congress, that there is another Union affiliated to the Indian National Trade Union Congress, that the Municipality is controlled by a panel of members belonging to the Congress (1) and that the Chairman of the Municipality also belongs to the Congress Party. It is further averred that attempts were made to persuade him and certain other employees to abandon their Union and join the Union affiliated to I.N.T.U.C. but the petitioner could not oblige and that by way of retaliation, attempts are being made to remove him from service before the date of superannuation, Petitioner alleged that he was due to retire only on 31-1-1994, but he was removed from service with effect from 13-7-1988 and challenging that, he had to file a writ petition,which was allowed by this court as per Ext. P1. There is nothing in Ext. P1 to show that the alleged removal from service was due to any political reasons. The order directing retirement earlier than 31-1-1994 was issued without notice. Ext. PI also shows that at the time when the petitioner entered service of the Municipality on 4-3-1954,no service book was opened. The service hook of the petitioner was opened only on 1-9-1968. i.e. 14 years after, petitioner joined service.In the column for filling up the date of birth, dates 30-11-1103 and13-7-1928 were seen entered against Malabar Era and Christian Era.The first entry in the Christian Era was scored off and 13-7-1928was written. Later, the above entries were scored off and below that against Malabar Era. 26-6-1109 is given in numericals and words and just below that against Christian Era, 19-1-1934 was written in numericals and words, Below that, there is an endorsement "verified with horoscope and found correct". Municipal Commissioner's seal was affixed just below that. The signature was not there. None had counter- signed the date of birth. Petitioner was not called upon to show cause against the pro- posed action directing retirement and it is in those circumstances,this court set aside the order and directed the Municipal authorities to make an enquiry for finding out the correct date of birth with notice to the petitioner. The Court also directed the parties that if they are so advised, they may subject the petitioner to examination by a Radiologist attached to the Medical College for asserting the probable age. Accordingly, he was examined by a Radiologist and on the basis of his report, petitioner's date of birth was fixed as 10-10-1933.The claim of petitioner was that his date; of birth is 19-1-1934.

(3.) In the counter affidavit filed by the Commissioner it is stated that he received a complaint dated 26-12-1990 from one T. K.' Krishnan,Thottiparambil, Chennaypara, Peechi, Trissur alleging that the petitioner is the President of Kattungalchira Kalimon Vyavasaya Sahakarana Sanghom Ltd. and that lie had collected money as share value, contribution etc. from the public and misappropriated the amount. In the complaint,it is stated that the petitioner received amount' from the Kerala Khadi and Village Industries Board and misappropriated the same, that the petitioner used forged registers, receipts. etc. for the above purpose and that the functioning of the Society became paralysed.As the allegations imputated against the petitioner amounted to serious misconduct, the Municipality decided to conduct a preliminary enquiry into the complaint. Initially, the Health Inspector Grade II was deputed to conduct a preliminary enquiry into the allegations in the complaint.After noticing the contents in the complaint dated 26-12-1990, the petitioner submitted a statement to the Health Inspector wherein he admitted that he was the President of the Society, but denied the imputations alleged. It is also averred in the counter affidavit that after examining the report and statement of the petitioner, he thought of conducting an investigation in to against the matter before definite charges are framed the petitioner. As a part of the same,' he issued notices to the complainant to adduce evidence in support of his complaint.The complainant along with four other persons adduced evidence before him on 3-6-1991. In order to verify the receipts and registers in connection with the collection of money, lie issued Ext. P3 notice to the Secretary of the Society and the petitioner directing them to be present at the Municipal Office on 5-6-1991 along with records.On that day, petitioner was present and he, requested for time to ensure the attendance of the Secretary also, He issued Ext. P4 notice to them to he present on 25-6-1991 with the records mentioned therein.Instead of attending the enquiry on 25-6-1991, petitioner sent Ext.P5 reply. Petitioner also applied for causal leave on 25-6-1991, to avoid presence in the Municipal Office. The Secretary of the Society also did not, appear in spite of repeated notices. It, is further averred in the counter affidavit that the temper and tenor of Ext.P5 and further conduct of the petitioner would reveal the gravity of insubordination and indiscipline on his part. He thought that in the circumstances, a detailed investigation is necessary and it is for that purpose. petitioner was placed under suspension. Petitioner's allegations in para 6 of the petition are denied and it is averred that Municipality was totally disinterested in his joining any Union overtaking membership. In para 9 of the counter affidavit, it is stated that the imputation contained in the complaint dated 26-12-90 and that evidence so far adduced would show that there is a strong prima facie case involving moral turpitude against the petitioner and that would amount to gross misconduct coming within the purview of the disciplinary proceedings under the Municipal Employees Conduct Rules,1963. It is averred that Rule 14(2) and 14(3) of the said Rules envisage that any employee of the Municipal Council should take part 'in the management or hold office in any Co-operative Society only after obtaining previous sanction from the Commissioner, but the petitioner was holding the office of President of the Co- operative Society without obtaining any, sanction and the said act itself would amount to misconduct for initiating disciplinary, proceedings against him. It is further averred in 'the counter affidavit that the complaint of the same pattern was addressed to the State Government and Director of Municipal Administration and they were forwarded to the 1st respondent for conducting an enquiry into the matter and to submit a report. It is also stated that the petitioner had an alter- native remedy by way of appeal before the Director of Municipal Administration under Rule 20(ii) of the Municipal Common Service Rules, 1967 and on this ground itself, the petition under Art. 226 of the Constitution of India is liable to he dismissed.