Vincent v. State of Kerala — 1997 DIGILAW 463 (KER)

Judgment :- K.A. Abdul Gafoor, J. The petitioner retired while working as Assistant Settlement Officer on SO. 11.1992. It is a post equivalent to the cadre of Deputy Collector. Subsequent to the retirement, proceedings were initiated against him both under the Public Accountants Act, 1963 and under R.3 Part III KSR. The former was to recover the amount which fell in his custody and was allegedly misappropriated by him. The latter was, on that reason, to reduce the pension. The petitioner has approached this Court challenging those proceedings initiated respectively as per Exts. P4 and P5. He also seeks a direction to the respondents not to enforce Exts. P4 and P5. 2. Exhibit P4 was issued as already mentioned above invoking the provisions of S.3(1) of the Kerala Public Accountants Act, J963 by the District Collector. Ext. P5 is issued by the Commissioner and Secretary of the Revenue Department of the Government. 3. Relying on the decision in Padmanabha Iyer v. State of Kerala (1974 KLT 556), the petitioner contends that Ext. P4 is illegal in so far as it did not contain the minimum necessary details to defend it. The Collector was exercising quasi judicial power in fastening a liability on the petitioner and therefore, details ought to have been included in Ext. P4. It is also contended by the counsel that by Ext. P4 the Collector had already found him guilty and fastened him with the liability of a huge amount mentioned therein. Therefore, an enquiry should have been held even before such alleged provisional conclusion as contained in Ext. P4. It is also contended by the counsel that in terms of S.3(1) of the Act, a detailed statement of liability ought to have been drawn up by the Collector and served on the petitioner. In so far as the Collector did not do so Ext. P4 is illegal and violative of the provisions of S.3(1) of the Act. It is further contended relying on the decision reported in Paramu Pillai v. District Collector (1989 (1) KLT 224) that if loss is caused by the government servant by negligence or by misconduct otherwise than in respect of monies or securities, the Collector cannot resort to the proceedings under S.3(1) of the Public Accountants Act. Government should resort to the proceedings under the Kerala Civil Services (Classification, Control & appeal) Rules and not under the Public Accountants Act. Government should resort to the proceedings under the Kerala Civil Services (Classification, Control & appeal) Rules and not under the Public Accountants Act. Counsel contends that all kinds of loss allegedly caused by Government servant cannot be recovered resorting to the Public Accountants Act. On that count also, the counsel for the petitioner assails Ext. P4. 4. There is no case for the petitioner that he is not a public accountant. According to him, he was employed as an Assistant Settlement Officer, at the time of retirement. In paragraph 10 of the counter affidavit filed on behalf of the 1st respondent it is specifically averred that the petitioner was "a Public accountant according to the definition in S.2(b) of the Kerala Public Accountants Act, 1963. The petitioner was the head of office who was entrusted with the receipt, custody, possession and control of all Government money transacted in the office of the Assistant Settlement Officer". Thus, the petitioner was a public accountant in terms of the definition contained in the Act. So, he can be proceeded under the Public Accountants Act. Before such proceedings are initiated, it is incumbent on the Collector or other appropriate authority to draw up a statement of the particulars of the claim against the public accountant. In this case, the Collector himself has initiated the proceedings. So, a statement has to be drawn up by the Collector under sub-s.(1). Sub-s.(1) of S.3 of the Kerala Public Accountants Act does not make it mandatory to serve the statement on the public accountant against whom proceedings are initiated. On the other hand, sub-s.(2) is clear that the Collector shall by writing under his official seal and signature serve a notice of demand on the public accountant in the same manner as summons is served on a defendant under the Code of Civil Procedure, 1908. Sub-s.(2) also does not enjoin the Collector to serve a copy of the statement prepared by him or sent over to him under sub-s.(1). Therefore, the contention of the petitioner that statement has not been given to him and therefore, Ext. P4 is illegal, cannot be accepted. 5. Ext. Sub-s.(2) also does not enjoin the Collector to serve a copy of the statement prepared by him or sent over to him under sub-s.(1). Therefore, the contention of the petitioner that statement has not been given to him and therefore, Ext. P4 is illegal, cannot be accepted. 5. Ext. P4 is a notice requiring the petitioner about the liability arising out of misappropriation of the amount in his custody and mentioning that if no objection had been filed, the amount would be realised under the Kerala Revenue Recovery Act as permissible under S.4 of the Public Accountants Act, 1963. When a notice is issued, the petitioner is liable to reply to that notice. If the petitioner is of the opinion that Ext. P4 lacks in any information or detail, he could be asked for more details from the District Collector in order to enable him to properly defend the action initiated by Ext. P4. The petitioner has no case that he had done so. In such circumstances, Ext. P4 notice is not amenable for a challenge under Art.226 of the Constitution of India. 6. Ofcourse, before fastening the liability and to take steps for recovery, ample opportunity ought to have been given to the petitioner. That stage has not so far attained. The petitioner has been issued only with a notice in terms of S.3(1) of the Public Accountants Act. The petitioner will have ample opportunity to defend it by filing objection if necessary after obtaining further details that he may require to draw up his statement of objection. It is only after that, if the Collector is not satisfied with the objection, any further enquiry need be conducted to quantify the loss to fasten the liability on the petitioner. As held in Padmanabha Iyer's case (1974 KLT 556) a notice issued under the Act "could be objected to by the person to whom it is issued. If a claim is disputed, it has necessarily to be enquired into". So enquiry arises only after Ext. P4 is responded by the petitioner. Merely because Ext. P4 contains the allegation that he had misappropriated a huge sum mentioned therein and that he has to remit the said amount; that does not amount to fastening of liability. Always in a departmental proceedings when a show cause notice is issued, the reason for that is normally stated like it. Therefore, challenge against Ext. Merely because Ext. P4 contains the allegation that he had misappropriated a huge sum mentioned therein and that he has to remit the said amount; that does not amount to fastening of liability. Always in a departmental proceedings when a show cause notice is issued, the reason for that is normally stated like it. Therefore, challenge against Ext. P4, either on the ground of violation of S.3(1) of the Act or on the ground that he had not been given an opportunity, does not sound good and the challenge against Ext. P4 fails. 7. It is true that any loss caused from the government servant, even if he is a Public Accountant, cannot be realised by resorting to the provisions of the Public Accountants Act, 1963, as held by a Division Bench of this Court in Paramu Pillai v. District Collector (1989 (1) KLT 224). Here, the petitioner was an Assistant Settlement Officer in charge of an office where amounts were collected by him under his signature. The loss caused is not by reason of any act by spoiling any goods, but by withholding the amount collected by him reaching the government treasury, as alleged in the counter affidavit. Therefore, it is a loss recoverable, if substantiated, in terms of the Public Accountants Act. So, the contentions urged by the petitioner taking strength from Paramu Pillai's case (1989 (1) KLT 224) is also unsustainable. 8. Ext. P5 as is seen from it, is a proceeding initiated against him under R.3 Part III K.S.R..(There is no R.3(a) as cited in it). Admittedly, the petitioner retired on 30.11.1992. This Original Petition was filed on 20.12.1994. Ext. P5 does not contain any date. Anyhow, it is issued before 20.12.1994 when the original petition was filed, ie, within four years from the date of his retirement. The petitioner contends that a proceeding to withhold or withdraw pension or for ordering recovery from pension can be initiated only if in a departmental or judicial proceeding the petitioner was found guilty of grave misconduct or negligence during the period of service. He contends that there was no proceedings initiated against him before his retirement. Therefore, Ext. P5 is incompetent. He contends that there was no proceedings initiated against him before his retirement. Therefore, Ext. P5 is incompetent. He further contends that a proceeding under R.3 can be initiated only by following the entire procedure "applicable to departmental proceedings in which an order of dismissal from service would be made in relation to the employee during the service". That procedure has not been adopted before Ext. P5 was issued. So, Ext. P5 is illegal. 9. By R.3 Part III KSR, Government has reserved a right to themselves to withhold or withdraw pension payable to a government servant whether permanently or for a specified period. Ext. P5 is a show cause notice proposing to reduce a sum equivalent to 1/3rd of the pension payable to the petitioner. R.3 says that such right can be exercised for withholding or withdrawing the pension, if in a departmental or judicial proceeding the petitioner is found guilty of grave misconduct or negligence during the period of his service. But, this Rule has a proviso. The first part of the proviso is, how the proceedings if instituted while the employee was in service shall be continued. That part is not applicable to the petitioner's case because admittedly no proceedings had been initiated against him before his retirement. Cl. (b) of the proviso reads as follows: "Such departmental proceedings, if not instituted while the employee was in service, whether before his retirement or during his re-employment - i) shall not be instituted save with the sanction of the Government; ii) shall not be in respect of any event which took place more than four years before such institution". Clause (b) of the proviso makes it clear that if proceedings had not been initiated at the time when the petitioner was in service, it can also be later instituted after his retirement, provided the time limit made mention of in Sub-cl. (i) and the condition in the other sub-clauses are satisfied. So, the contention of the petitioner that Ext. P5 cannot be issued unless there is a proceeding initiated before retirement, cannot hold good in the light of clause (b)(ii) of the proviso to R.3. In other words, even after retirement proceedings under R.3 be initiated, provided the three conditions in the proviso to R.3 are satisfied. 10. As already mentioned above, Ext. P5 cannot be issued unless there is a proceeding initiated before retirement, cannot hold good in the light of clause (b)(ii) of the proviso to R.3. In other words, even after retirement proceedings under R.3 be initiated, provided the three conditions in the proviso to R.3 are satisfied. 10. As already mentioned above, Ext. P5, though did not contain a date, had been issued before 20.12.1994 when the original petition was filed. The earliest date made mention of Ext. P5 is 1.1.1992. Therefore, the event in respect of which the action is taken against the petitioner, as per Ext. P5, is one which took place within four years prior to Ext. P5. Therefore, Ext. P5 is permissible in terms of sub-cl. (ii) of Cl. (b) of the proviso to R.3 Part III K.S.R.. 11. It is true that such action after retirement shall not be instituted, save with the sanction of the Government as provided in sub-clause (i) of Cl. (b) of the proviso to R.3. Ext. P5 has been issued by the Secretary to the Government, Revenue Department. That means, there is sanction of the Government; because the action itself is initiated by Government Secretary. So, condition No. (i) in Clause (b) is also satisfied. 12. It is true that as contended by the petitioner, withholding or withdrawing the pension shall be made only if the proceedings is conducted by such authority as the Government may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to a government employee. That condition is applicable only in respect of the final order to be passed under R.3 Part III K.S.R. Ext. P5 is only a show cause notice. The petitioner has to submit his reply. That has to be considered and only in the case if the reply is unsatisfactory an enquiry is to be held. Such enquiry shall necessarily be the one as provided in sub-clause (iii) of Cl. (b) of the proviso to R.3 Part III KSR. That situation will arise only if the petitioner submits his reply and when an adverse order is to be passed against the petitioner finally. Thus, the challenge against Ext. P5 also fails. O.P. is dismissed. No costs.