Kerala High Court
Earnest Edappally vs The District Collector on 2 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
WP(C) NO. 26607 OF 2013
PETITIONER:
EARNEST EDAPPALLY
S/O.JAMES EDAPPALLY,
NADUTHODY PARAMBU, KUTHIRAVATTOM P.O.,
KOZHIKODE-16.
BY ADVS.
SRI.P.K.IBRAHIM
SMT.K.P.AMBIKA
SMT.A.A.SHIBI
RESPONDENTS:
1 THE DISTRICT COLLECTOR
KOZHIKODE-673 001.
2 THE DEPUTY TAHSILDAR REVENUE RECOVERY
KOZHIKODE-673 001.
3 THE SECRETARY
CHERUVATHUR GRAMA PANCHAYATH,
CHERUVATHUR P.O.,
KASARAGOD DISTRICT-671 313.
BY ADVS.
M.SASINDRAN
DR.K.P.PRADEEP
BY SRI. B. UNNIKRISHNA KAIMAL - SR.GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 02.12.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C)No. 26607 of 2013
2
MOHAMMED NIAS. C.P.,J
------------
WP(C)No. 26607 of 2013
- - - - - - - - - - - - - - - - - - ----
Dated this the 2nd day of December, 2022
JUDGMENT
The petitioner challenges Ext.P4, which is a demand under
the provisions of the Revenue Recovery Act.
2. The petitioner retired from service as Deputy Director of
Panchayat on 31.3.2010, while working at Palakkad. Earlier, he
was the Secretary in Cheruvathur Grama panchayat, Kasargode
for a short term of three months from the 24.12.1996 to
31.3.1997. It is stated that the accounts were subjected to audit
relating to the period up to 30.09.1996 of the year 1996-97 and
from 1.10.1996 to 31.3.1997 of the Panchayat. Ext.P2 which is the
audit report prepared in terms of Section 215(4) of the Panchayat
Raj Act read with Sections 13 and Rule 18 of the Kerala Local
Fund Audit Act, 1994. Ext.P2 shows that it is with respect to first
half of year 1996-1997 and that the estimate for the general
works supervision was conducted by a private engineer by name
Smt.G.Gayathri Bhat and that the check measurements were
conducted by Assistant Engineer Sri.K.Kunhambu, who has since
WP(C)No. 26607 of 2013
retired.
3. The audit report also proceeds to state that the details
of the bills relating to the utilisation of tar for the work has not
been included in the stock register and that an excess amount of
Rs.59453/- has to be recovered from the contractor or from the
Secretary of the Panchayat concerned. The audit report does not
name the petitioner and also proceeds to state that the loss has to
be recovered from them,those responsible for creating the data
which is erroneous, and the loss has to be recovered from them.
Thus, it is clear from Ext.P2 that the petitioner has not been
shown as the person responsible for causing the loss. The
Panchayat itself by Ext.P3, after getting a representation from the
petitioner had requested the District Collector and also the
Tahsildar of revenue recovery to keep in hold the further
proceedings against him as an enquiry was needed to fix the
responsibility on those who was at the helm at the relevant point
in time. Notwithstanding the above, the revenue recovery
proceedings were initiated against the petitioner. He had also
submitted Ext.P5 detailing that he was not responsible as he was
not the Secretary during the time when the allegations were
raised in the execution of the work. The petitioner states that
quantification was also done without hearing him.
WP(C)No. 26607 of 2013
4. The Panchayat has filed a counter affidavit stating inter alia
that Cash Book, Voucher, Cheque Book could not be inspected as
they were not available for inspection and therefore it could not be
ascertained whether any payment was made during the tenure of
the petitioner from 24.12.1996 to 31.3.1997. Since nothing
favourable to the petitioner was received from the department and
that there was delay in responding to the audit objection to the
side of the petitioner, the actions were attempted to be justified.
Even the counter states as follows:-
"Some of the amounts of the works like the Ramanchira Road
and Ambalathara -Palathara Road have been paid during the
period prior to his tenure i.e. before 23.12.1996. As the cash
book, Vouchers and Cheque Book etc could not be inspected as
those were not available for inspection, it could not be
ascertained whether any payment was made during his tenure
from 24.12.1996 to 31.03.1997."
5. The Panchayat also mentions in the proceedings that the
allegation as listed in the charge memo could not be proved wrong
by the petitioner. It is not ascertainable from the counter as to
whether the petitioner was heard at all before quantification or if
he was specifically put on notice about the charges levelled
against him prior to the initiation of the revenue recovery
WP(C)No. 26607 of 2013
proceedings or the quantification. It is the specific contention of
the writ petitioner that the audit objection pertained to the period
1996-97, in particular, to the first half of the financial year 1996-
97. i.e., that is to say the period up to 30.9.1996 and as he had
joined the Secretary only on 24.12.1996, he cannot be held liable
for anything that happened prior to that. This averment of the
petitioner is not specifically dealt or denied in the counter affidavit
of the Government or of the Panchayat. The version of the
petitioner has not been considered as such before qualification. In
such circumstances, the impugned action leading to the recovery
against the petitioner cannot be sustained. Therefore, I quash
revenue recovery action against the petitioner including Ext.P4.
6. The third respondent in case it wants to proceed again
will issue specific notice to the petitioner detailing the charges
against him and offer a reasonable opportunity of hearing to him
to defend such action. Taking into account the assertion of the
petitioner that though he had retired from service 31.03.2007 his
DCRG has not been paid alleging liability against him. The
Panchayat, if it proceeds to act against the petitioner as aforesaid,
will complete the proceedings as directed above, within an outer
limit of four months' from the date of receipt of a copy of this
judgment. If the enquiry and the decision thereon is not completed
within that period, the petitioner will be entitled to be paid the
WP(C)No. 26607 of 2013
entire eligible DCRG. The petitioner will be free to take up all the
contentions available to him while defending the proceedings, if
any, instituted against him.
The writ petition is allowed as above.
Sd/- MOHAMMED NIAS. C.P.,JUDGE
dlk 3.12.2022
WP(C)No. 26607 of 2013
APPENDIX OF WP(C) 26607/2013
PETITIONER's EXHIBITS
EXHIBIT P1. TRUE COPY OF THE DOCUMENT NOTICE RECIVED BY
THE PETITIONER ON 21//5/2008.
EXHIBIT P2. TRUE COPY OF THE RELEVANT PAGES OF THE AUDIT
REPORT
EXHIBIT P3. TRUE COPY OF THE LETTER DATED 26/7/2008 SO
ADDRESSED BY THE SECRETARY OF THE RESPONDENT AND THE
RESOLUTION DATED 4/7/2008.
EXHIBIT P4. TRUE COPY OF THE NOTICES FORM -1, AND FORM 10
DATED 11/7/2013 ISSUED BY THE 1ST RESPONDENT
EXHIBIT P5. TRUE COPY OF THE REPRESENTTION DATED
14/8/2013 WITHOUT ITS ENCLOSURE.
EXHIBIT P6. TRUE COPY OF THE COMMUNICATION FROM THE 2ND
RESPONDENT DATED 24/8/2013.
EXHIBIT P7. TRUE COPY OF THE COMMUNICATION WITH HOLDING
HIS DCRG DATED 30.11.2012.
