Kerala High Court
K.Kamalakshi vs The State Of Kerala on 16 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
WP(C) NO. 6323 OF 2020
PETITIONER:
K.KAMALAKSHI
AGED 64 YEARS
W/O.GOPIKUTTAN, DHANYA, VETTUVENI, HARIPAD,
ALAPPUZHA-690 514.
BY ADVS.
VINOD SINGH CHERIYAN
SRI.T.M.KHALID
SMT.K.P.SUSMITHA
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL SELF
GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
TRIVANDRUM-695 001.
2 THE DIRECTOR OF PANCHAYATS,
PUBLIC OFFICES BUILDING, THIRUVANANTHAPURAM-695
033.
3 THE DIRECTOR, KERALA STATE AUDIT DEPARTMENT,
VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033.
4 THE DEPUTY DIRECTOR,
KERALA AUDIT DEPARTMENT, CIVIL STATION,
PATHANAMTHITTA-689 645.
5 DEPUTY DIRECTOR OF PANCHAYATS,
CIVIL STATION, PATHANAMTHITTA-689 645.
6 THE DISTRICT COLLECTOR,
COLLECTORATE, ALAPPUZHA-688 001.
7 THE SECRETARY, KONNI GRAMA PANCHAYAT,
KONNI P.O., PATHANAMTHITTA-689 691.
8 THE DEPUTY TAHSILDAR,
KARTHIKAPPALLY TALUK OFFICE, KACHERI JUNCTION,
HARIPAD, ALAPUZHA-690 514.
BY ADVS.SMT. RASMI.K.M SR.GP
SRI.SUNIL JACOB JOSE, SC, KONNI GRAMA PANCHAYAT
SRI.V.K.SUNIL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 16.09.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.6323/2020
2
P.V.KUNHIKRISHNAN, J.
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W.P.(C).No.6323 of 2020
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Dated this the 16th day of September, 2021
JUDGMENT
Petitioner is a retired Government servant
superannuated on 31.05.2008 from the post of Panchayat
Secretary. She had worked in Konni Grama Panchayat from
21.12.1999 to 31.03.2000 as Secretary. The grievance of the
petitioner is that after about 20 years, since she was
transferred from the Panchayat, she had been served with a
property attachment notice through the 8th respondent and
consequently recovery proceedings were initiated by the other
respondents. As per Ext.P1 local fund audit report, it is found
that certain irregularities were committed by the officers of
Konni Grama Panchayat. Based on Ext.P1, the 2 nd respondent
Director of Panchayat, after getting clarification from the
Government, issued Ext.P2, by which it was directed to assess
the loss and recover the amount from the officer concerned.
Consequently the 7th respondent issued Ext.P3 notice to the
petitioner. Thereafter the recovery proceedings were
W.P.(C).No.6323/2020
initiated, as evident from Exts.P4 to P6. Aggrieved by the
same, this writ petition is filed.
2. Heard the counsel for the petitioner and the
Government Pleader.
3. The counsel for the petitioner reiterated his
contention in the writ petition. The counsel submitted that the
petitioner served as a Secretary only for a short period from
21.12.1999 to 31.03.2000 at Konni Panchayat Office. The
counsel submitted that Ext.P1 report is dated 09.02.2009.
Ext.P2 issued by the 2nd respondent is dated 20.06.2012. The
counsel submitted that a reading of Ext.P2 will show that he is
acting based on the direction from the Government and the
Government already directed to recover the amount after
assessing the loss. The counsel submitted that the
Government issued such directions behind back of the
petitioner. The counsel relied on Section 243 of the Panchayat
Raj Act, in which there is a bar for initiating any recovery
proceedings after a period of three years. The counsel also
relied on the judgment of this Court in Mariyamma v. State
of Kerala and Others [2019 (4) KHC 492]. The counsel
submitted that the recovery proceedings against the petitioner
W.P.(C).No.6323/2020
after about 11 years is unsustainable.
4. The Government Pleader seriously opposed the
contentions of the petitioner. The Government Pleader takes
me through the counter affidavit filed by the 3 rd respondent.
The Government Pleader submitted that the recovery
proceedings is based on Ext.P1 audit report and there is
nothing to interfere.
5. I considered the contentions of the petitioner and
the Government Pleader. I perused the counter affidavit filed
by the 3rd respondent. It will be better to extract paragraph 3
of the counter affidavit filed by the 3rd respondent.
"3. As regards averments in paragraphs it is
submitted that the report on audit of expenditure was
issued on 2.7.2001. The final audit report which
contained the observations from both the stretches of
audit was issued vide L.F.Pta.P9-468/08 on 9.2.2009.
As per the provisions contained in Section 9(1) of the
Kerala Local Fund Audit Act, 1994, the Executive
authority of the auditee institution should prepare the
accounts of a financial year in the prescribed format
and submit it for audit within four months from the
close of the financial year. This implies that the
accounts of Konni Grama Panchayat for the year
1999-2000 should have been submitted to audit on
or before 31.7.20. However, the said accounts were
W.P.(C).No.6323/2020
submitted only on 7.8.2007 along with the annual
accounts for the years 1995-96, 1996-97, 1997-98
and 1998-99. Section 10 of the Kerala Local Fund
Audit Act, 1994 stipulates that the audit of accounts
should be completed within six months from the date
of its receipt. The audit of Konni Grama Panchayat
was conducted within six months of the submission of
accounts. Non submission of annual accounts for
audit within the prescribed time limit meant that the
audit was completed in two stretches and
consequently delay occurred for issuing the final audit
report. Hence the allegation of the petitioner in
paragraph 3 of writ petition is baseless."
6. It is true that the Government Pleader takes me
through the last paragraph of Ext.P1 audit report and
submitted that recovery is based on the directions in the audit
report. But, on a perusal of Ext.P2 will show that the 2 nd
respondent requested the Government to give clarification to
take follow-up action based on Ext.P1. Thereafter the
Government informed the 2nd respondent to assess the loss
and thereafter recover the amount. It will be better to extract
the last portion of Ext.P2 letter:
"മ ൽ സ ഹചര ത ൽ മ ഇനത ൽ
പഞ യത ന ണ യ നഷവ സ മ ഡ ട ഇനത ൽ
സർക ര ന ണ യ നഷവ എപപക ര ഈട കണമ ന
W.P.(C).No.6323/2020
എനത സ ബന ച ക ര ത ൽ സർക ര ൽ ന ന
ആവശ യ ന ർമ.ശങള1 ത ടർനടപട കള1
സ34കര കണമ ന സർക ര മന ട ആവശ മ6ട ര ന .
1999-2000 വർഷമത ആഡ റ ൽ റ മ6 ർട മചയത ട1ള
മ ക ട ശ കയ നത ൽ ഉണ യ ട1ളള നഷ
ച തമ6ടവർക ന യ ന സ>ത മന ട4സ നൽക
അവര മട ഭ ഗ മകട മശഷ അന യ നഷ
ത ടമ6ട ത റവന റ കവറ നടപട യ മട ത ക
ഈട മകണത മണന സ ചന (3) മDന സർക ർ
അറ യ ച ട1ണ. മ ൽ സ ഹചര ത ൽ മ കൽ ഫണ
ഓഡ റ റ മ6 ർട ൽ പര ർശ ച ട1ള ത ക സ4ന യർ
ഫ ന ൻസ ഓഫ4സറ മട ശ പ ർശയ മട അട സ നത ൽ
ബ ധ ത ന ശയ ച ബനമ6ട ജ4വനക ർക മന ട4സ
നൽക അവര മട ഭ ഗ ക ട മകടമശഷ അന യ
നഷ ത ടമ6ട ത റവന റ കവറ യ മട പപസത ത
ത ക ഈട മകണത ണ. സ34കര ക ന നടപട കള1മട
പ മര ഗത വ വര യഥ സ യ റ മ6 ർട1
മചമNണത ണ."
7. From the above, it is clear that the 2 nd respondent
issued orders for hearing the petitioner and others based on
the definite finding from the Government. The Government
issued such a direction without giving an opportunity of
hearing to the petitioner. I don't want to discuss the case on
merit in detail. According to me, this is a case in which the
Government has to reconsider the matter afresh in the light of
the contentions raised by the petitioner in this writ petition
also. All the contentions of the petitioner in this writ petition
are left open. The petitioner can file a fresh representation
W.P.(C).No.6323/2020
also before the Government and the Government will consider
the same, after giving an opportunity of hearing to the
petitioner and pass appropriate orders in accordance to law.
Therefore, this writ petition is disposed in the following
manner:
1. The petitioner is free to file a representation
before the 1st respondent within three weeks
from the date of receipt of a copy of this
judgment.
2. Once such a representation is received by the
1st respondent from the petitioner, the 1st
respondent will consider the same and will
pass appropriate orders in accordance to law,
after giving an opportunity of hearing to the
petitioner, as expeditiously as possible, at any
rate, within four months from the date of
receipt of a copy of the representation.
3. Till final order is passed by the 1 st respondent,
recovery proceedings already initiated against
the petitioner as per Exts.P4 to P6 and all
other consequential steps are stayed.
W.P.(C).No.6323/2020
4. All the contentions of the petitioner in this writ
petition are left open.
5. Petitioner is directed to produce a copy of this
judgment along with a copy of this writ
petition before the 1st respondent for
compliance.
Sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.6323/2020
APPENDIX OF WP(C) 6323/2020
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE FACING SHEET OF
AUDIT REPORT NO.LFPTA-P9468/08 DATED
09.02.2009 AND EXTRACT OF PARA 2-13 OF
THE AUDIT REPORT FOR THE YEAR 1999-
2000 OF KONNI GRAMA PANCHAYAT.
EXHIBIT P2 A TRUE COPY OF THE LETTER DATED
20.06.2012 NUMBERED AS D6-21859/2008
ISSUED BY THE 2ND RESPONDENT TO THE
7TH RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED
17.09.2012 NUMBERED AS A-3917/09
ISSUED BY THE 7TH RESPONDENT TO THE
PETITIONER.
EXHIBIT P4 A TUE COPY OF THE NOTICE NO.A1-3917/09
DATED 15.03.2014 ISSUED BY THE 7TH
RESPONDENT.
EXHIBIT P5 A TRUE COPY OF THE REVENUE RECOVERY
DEMAND NOTICE RRC NO.2019/6463/03
DATED 12.01.2020 IN FORM 1 ISSUED BY
THE 8TH RESPONDENT.
EXHIBIT P6 A TRUE COPY OF THE RR DEMAND NOTICE
RRC MNO.2019/6463/03 DATED 13.01.2020
IN FORM 10 ISSUED BY THE DEPUTY
TAHSILDAR, KARTHIKAPPALLY TALUK.
EXHIBIT P7 A TRUE COPY OF THE OBJECTION SUBMITTED
BEFORE THE 8TH RESPONDENT ON
26.01.2020.
