Kerala High Court
P.K. Harikumar vs State Of Kerala on 24 November, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942
WP(C).No.11773 OF 2015(V)
PETITIONER:
P.K. HARIKUMAR
AGED 60 YEARS
SENIOR MANAGER (RETD) KERALA STATE DRUGS AND
PHARMACEUTICALS LTD (KSDP) RESIDING AT HARIGEETHAM,
PAZHAVEEDU P.O., ALAPPUZHA DISTRICT.
BY ADVS.
SRI.N.RAGHURAJ
SMT.K.AMMINIKUTTY
RESPONDENTS:
1 STATE OF KERALA
INDUSTRIES (H) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM 695001.
2 KERALA STATE DRUGS AND PHARMACEUTICALS LTD.KSDP
KALAVOOR-688 522
ALAPPUZHA DISTRICT, REPRESENTED BY THE CHAIRMAN.
3 THE MANAGING DIRECTOR
KERALA STATE DRUGS AND PHARMACEUTICALS LTD. (KSDP),
KALAVOOR 688 522, ALAPPUZHA DISTRICT.
4 THE MANAGER P A
KERALA STATE DRUGS AND PHARMACEUTICALS LTD. (KSDP)
KALAVOOR 688 522, ALAPPUZHA DISTRICT.
R1-2 BY ADV. SMT.K.V.RESHMI, SC, KERALA STATE DRUGS
AND PHARMACEUTICALS L
R2-4 BY SRI.P.C.SASIDHARAN, SC, KCDWFB
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-
11-2020, ALONG WITH WP(C).14884/2015(I), THE COURT ON 24-11-2020
DELIVERED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942
WP(C).No.14884 OF 2015
PETITIONERS:
JOSE MATHEW
AGED 59 YEARS
DEPUTY MANAGER (RETIRED), KERALA STATE DRUGS &
PHARMACEUTICALS LTD., RESIDING AT PANAT JAI MANDIR,
KOKKATHAMANGALAM.P.O., CHERTHALA-688 583.
BY ADVS.
SRI.V.V.SURENDRAN
SRI.P.A.HARISH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT,
INDUSTRIES (H) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 KERALA STATE DRUGS AND PHARAMACEUTICALS LTD.
REPRESENTED BY MANAGING DIRECTOR, KALAVOOR,
ALAPPUZHA-688 522.
3 THE MANAGING DIRECTOR
KERALA STATE DRUGS AND PHARAMACEUTICALS
LTD.,KALAVOOR, ALAPPUZHA-688 522.
R1-2 BY ADV. SMT.K.V.RESHMI, SC, KERALA STATE DRUGS
AND PHARMACEUTICALS L
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-
11-2020, ALONG WITH WP(C).11773/2015(V), THE COURT ON 24-11-2020
DELIVERED THE FOLLOWING:
W.P.(C).Nos.11773 & 14884/15
3
JUDGMENT
[ WP(C).11773/2015, WP(C).14884/2015 ] Dated this the 24th day of November 2020
1. These writ petitions are filed by retired employees of the respondent-company challenging the action taken by the respondents to withhold the retirement benefits due to them. The orders by which liability was imposed on them on account of the excess purchase of Sodium Meta Bisulphate and Blister Aluminum Foil are also under challenge.
2. In W.P.(C).No.11773 of 2015, the orders under challenge are Exhibits P8, P12 and P13. A declaration is also sought that Exhibit P7 report, to the extent it holds the purchase of the materials as irregular, is factually incorrect and legally unsustainable.
3. In W.P.(C).No.14884 of 2015, the orders under challenge are Exhibits P1 report and Exhibit P25 letter. Further directions are sought for to consider Exhibit P3 explanation and Exhibit P23, P26 and P27 representations submitted by the petitioner. W.P.(C).Nos.11773 & 14884/15 4
4. It is submitted by the learned counsel for the petitioners that the purchase of the materials was on proper authorisation and pursuant to a collective decision of the Purchase Committee. It is stated that it was only on account of an inspection report of the Finance Inspection wing that the purchase was found to be irregular. It is submitted that the materials purchased are in regular use and that there is absolutely no loss caused to the respondent company due to the excess purchase of the said materials. It is, therefore, contended that the steps taken to hold the petitioners liable and to withhold their retirement benefits is completely unjustifiable.
5. An affidavit has been filed on behalf of respondent Nos.2 to 4 in W.P.(C).No.11773 of 2015. It is stated that Sodium Meta Bisulphate is a raw material for the production of paracetamol and Metformin tablets. It is stated that the raw materials had been purchased on the basis of proper authorisation by the committees. It is submitted at paragraphs 6 and 7 of the affidavit as follows:-
W.P.(C).Nos.11773 & 14884/15 5
"6. It is submitted that in the year 2012 the Finance Inspection Wing of Government conducted an inspection at KSDP and they have reported that, Sodium Meta Bisulphate was purchased in excess and Aluminium foil was purchased for higher value from the existing rate. The Inspection Wing assessed Rs.80,226/- towards the value of Sodium Meta Bisulphate and Rs.10,69,119/- along with 18% interest towards the value of Aluminium foil. They have also recommended to initiate recovery steps against the petitioner Sri.P.K.Harikumar. Later, the Government vide letter No.28091/H3/13/ID dated 23.9.2013 decided to furnish action taken report on the recommendation of the Finance Inspection Report. The copy of the letter was intimated to the petitioner. It is based on the Government letter that the Management issued show cause notice to the petitioner. This respondent independently examined the explanation and found that the explanation offered was sustainable and this facts intimated to the Government. But the Government insisted the recovery steps should be taken or it will be a personal liability of the Managing Director. It is in these circumstance that the impugned orders are issued.
7. It is further submitted that on going through the personal files of the petitioner he has got tremendous track records and he discharged his duties in both managerial and W.P.(C).Nos.11773 & 14884/15 6 supervisory capacity to the best interest of the company and his contribution was very much acclaimed. It is submitted that the material Sodium Meta bisulphate even if purchased more than the required quantity at a point of time can be used whenever it is necessary as this material has no expiry date. All procurement of raw material are done by abiding the purchase procedure existing in the company."
6.It is contended specifically that no individual officer in the purchase committee can be held personally responsible for the implementing decision of the committee and that the finding of the Finance and Inspection wing that loss had been caused to the respondent company is not correct or sustainable as per the records of the company due to the facts mentioned in paragraphs 4,5,6 and 7 of the counter affidavit. A counter affidavit on substantially similar lines is on record in W.P.(C).No.14884/2015 as well.
7. The learned Government Pleader submits that there had been an inspection conducted by the Finance Inspection Wing and it had been found that the raw materials had been W.P.(C).Nos.11773 & 14884/15 7 purchased in excess. It is, therefore, contended that the petitioners who were responsible for the excess purchase are liable for the loss caused to the KSDP due to their actions.
8. Having heard the learned counsel on all sides and having considered the contentions advanced at length, I find that the observation of the Finance Inspection Wing that the petitioners are liable for the excess purchase would be sustainable, only if there is loss caused to the company or to the Government. The company has come on record by filing an affidavit and a counter affidavit in W.P.(C).No.11773/2015 and a counter affidavit in W.P.(C).No.14884/2015 specifically stating that no loss has been occasioned to the company. It is contended that the raw materials, which have been purchased pursuant to proper decisions of the purchase committee, are required for the manufacture of the drugs in question and that even if they are purchased in excess, they are being used regularly for the manufacture of the drugs and that as such, there is absolutely no loss caused. W.P.(C).Nos.11773 & 14884/15 8
9. In the above view of the matter, I find no rationale behind the orders impugned or the action taken by the respondents to withhold the retirement benefits due to the petitioners. In the absence of any specific finding as to loss caused due to the actions of the petitioners independently, I am of the opinion that the steps taken to recover amounts from their retirement benefits would be completely without jurisdiction. This is more so in view of the fact that respondents 2 to 4 have specifically sworn to an affidavit that there is no loss caused to the company on account of the action of the petitioners in sourcing raw materials in excess of the required quantity.
10.In the above view of the matter, I am of the opinion that the writ petitions are liable to succeed. The writ petitions are, therefore, allowed. The observations contained in the report as well as the orders impugned are set aside. There will be a direction to the respondents to immediately release the retirement benefits due to the petitioners, without any further delay. Appropriate steps shall be taken within a W.P.(C).Nos.11773 & 14884/15 9 period of two months from the date of receipt of a copy of this judgment.
Writ petitions are ordered accordingly.
sd/-
Anu Sivaraman, Judge sj W.P.(C).Nos.11773 & 14884/15 10 APPENDIX OF WP(C) 11773/2015 PETITIONER'S EXHIBITS:
EXT.P1. TRUE PHOTOCOPY OF THE PURCHAE PROCEDURE ISSUED BY THE 1ST RESPONDENT DATED 20.10.1987.
EXT.P2. TRUE PHOTOCOPY OF THE ORDER BEARING NO.KSDP/MD/F.100/2007 DATED 21.05.2007.
EXT.P3. TRUE PHOTOCOPY OF ORDER BEARING NO.KSDP/MD/F.100/2008 DATED 3.06.2008.
EXT.P4. TRUE PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT BEARING NO./KSDP/MD/F-100/2011 DATED 25.5.2011.
EXT.P5. TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 16.08.2007.
EXT.P5(A). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 14.09.2007.
EXT.P5(B). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 04.10.2007.
EXT.P5(C). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 08.02.2008.
EXT.P5(D). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 13.02.2008.
EXT.P5(E). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 28.02.2008.
EXT.P5(F). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 24.06.2008.
EXT.P5(G). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 06.11.2008.
EXT.P5(H). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 13.06.2009. W.P.(C).Nos.11773 & 14884/15 11 EXT.P5(I). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 02.06.2010.
EXT.P5(J). TRUE PHOTOCOPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETINGS HELD 27.08.2010.
EXT.P6. TRUE PHOTOCOPY OF THE REPORT OF THE PETITIONER.
EXT.P7. TRUE PBHOTOCOPY OF THE MINUTERS OF THE MEETING HELD ON 12.10.2013 IN THE CABIN OF THE CHAIRMAN OF THE 2ND RESPONDENT.
EXT.P8. TRUE PHOTOCOPY OF THE LETTER BEARING NO.KSDP/MD/F 168/13-14/607 DATED 12.10.2013 ISSUED BY THE 3RD RESPONDENT.
EXT.P9. TRUE PHOTOCOPY OF THE REPLY DATED 22.10.2013.
EXT.P10. TRUE PHOTOCOPY OF THE LETTER NO.KSDP/MD/F 168/13- 14/3/756 DATED 18.12.2013 ISSUED BY THE 3RD RESPONDENT.
EXT.P11. TRUE PHOTOCOPY OF THE REPRESENTATION DATED 25.08.2014 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXT.P12. A TRUE PHOTOCOPY OF THE LETTER BEARING NO.28091/H3/2013/IND DATED 18.10.2014. EXT.P13.A TRUE PHOTOCOPY OF THE NOTICE BEARING NO.KSDP/PRS/66/2014/842 DATED 21.11.2014. EXT.P14. A TRUE PHOTOCOPY OF THE CERTIFICATE. Exhibit P15: TRUE PHOTOCOPY OF THE STATEMENT SHOWING THE AMOUNTS DUE TO THE PETITIONER FROM THE RESPONDENTS 2 TO 4. W.P.(C).Nos.11773 & 14884/15 12 APPENDIX OF WP(C) 14884/2015 PETITIONER'S EXHIBITS:
EXHIBIT P1 P1 - A TRUE COPY OF THE REPORT ALONG WITH THE COVERING LETTER DT. 23.9.13 ADDRESSED TO THE 3RD RESPONDENT.
EXHIBIT P2 P2 - A TRUE COPY OF THE COMMUNICATION RECEIVED BY THE PETITIONER FROM THE 3RD RESPONDENT.
EXHIBIT P3 P3 - A TRUE COPY OF THE EXPLANATION.
EXHIBIT P4 P4 - A TRUE COPYOF THE PURCHASE PROCEDURE ISSUED BY THE 2ND RESPONDENT DT. 20.10.87.
EXHIBIT P5 P5 - A TRUE OCPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING DT. 16.8.07.
EXHIBIT P6 P6 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING DT. 14.9.07.
EXHIBIT P7 P7 - A TRUE COPY OF THE PURCHASE COMMITTEE MEETING DT. 04.10.07.
EXHIBIT P8 P8 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING DT. 08.2.08.
EXHIBIT P9 P9 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING DT. 13.2.08.
EXHIBIT P10 P10 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE (ADDENDUM) DT. 28.2.08.
EXHIBIT P11 P11 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE (ADDENDUM) DT.
24.6.08.
EXHIBIT P12 P12 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING DT. 06.11.08. W.P.(C).Nos.11773 & 14884/15 13 EXHIBIT P13 P13 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING DT. 13.6.09. EXHIBIT P14 P14 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING DT. 02.6.10. EXHIBIT P15 P15 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE MEETING DT. 27.8.10. EXHIBIT P16 P16 - A TRUE COPY OF THE SEALED QUOTATION INVITING FOR BLISTER ALUMINIUM FOILS OF DIFFERENT PRODUCTS DT. 21.4.10.
EXHIBIT P17 P17 - A TRUE COPY OF THE COMPARATIVE STATEMENT PREPARED DT. 01.6.10 IN RESPECT OF THE QUOTATIONS RECEIVED.
EXHIBIT P18 P18 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE DT. 24.11.10.
EXHIBIT P19 P19 - A TRUE COPY OF THE MINUTES OF THE PURCHASE COMMITTEE DT. 26.11.10.
EXHIBIT P20 P20 - A TRUE COPY OF THE COMPARATIVE STAEMENT DT. 02.6.10.
EXHIBIT P21 P21 - A TRUE COPY OF THE OFFICE ORDER DR. 23.4.12.
EXHIBIT P22 P22 - A TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DT.
18.12.13.
EXHIBIT P23 P23 - A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER TO THE 3RD RESPONDENT DT. 06.11.14.
EXHIBIT P24 P24 - A TRUE COPY OF THE LETTER DT.
18.10.14.
EXHIBIT P25 P25 - A TRUE COPY OF THE LETTER DT.
21.11.14.
W.P.(C).Nos.11773 & 14884/15 14 EXHIBIT P26 P26 - A TRUE COPY OF THE REPRESENTATION OF THE PETITIONER DT. 01.12.14 TO THE INDUSTRIES MINISTER.
EXHIBIT P27 P27 - A TRUE COPY OF THE LETTER TO THE 1ST RESPONDENT.
EXHIBIT P28 P28 - A TRUE COPY OF THE LETTER DT.
02.2.15.
TRUE COPY PS TO JUDGE