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2009 DIGILAW 398 (JK)

Mohd. Afzal Malik v. State

2009-08-18

SUNIL HALI

body2009
1. Invoking the provisions of the Land Revenue Act, an amount of Rs.39,34,489/- is sought to be recovered from the petitioner as arrears of land revenue. It is stated that the said amount has been embezzled by the petitioner while functioning as Head Cashier in the office of the Consumer Affairs and Public Distribution Department. The legality of this order is being questioned by the petitioner in this petition. In order to decide the controversy involved the brief facts of this case are required to be enumerated. 2. In terms of Government Order No.10-DFSK of 93 dated 16-04-1993 the petitioner was directed to hold the charge of Cashier in addition to his own duties. At the time of taking over charge an amount of Rs.20,50,472.70/- was reflected to be lying with his predecessor Ghulam Mohammad Hakim. Only an amount of Rs.2,88,519/- was handed over to the petitioner. The petitioner continued to work as a Head Cashier till 23rd of October, 2001. It transpires that the petitioner had not been depositing the cash received by the department from various sale centres in the chest and the same was retained by him without depositing in the treasury. An enquiry is stated to have been conducted by the Dy. Director who submitted his report on 11-10-2001. Petitioner is stated to have participated in the said enquiry. The report reveals that an amount of Rs.48,25,735.00 were found short which was admitted to have been retained by the petitioner. It is stated in the report that the petitioner has admitted shortage of Rs.48,25,735.00. Appropriate action against the petitioner was recommended. A show cause notice, seeking the termination of the petitioner from the service, was issued to him for act of omission and commission committed by him. The impugned notice reveals that after having detected the shortage of Rs.48,25,735.00 at the time of enquiry an amount of 8,91,246.00 was deposited by the petitioner leaving the balance of 39,34,489.00. It transpires that the petitioner has been terminated from the service which is subject matter of challenge in another writ petition SWP No.735/03. It is important to note that an FIR was lodged against the petitioner in July, 2002 in which report under Section 173 Cr.PC stands filed in the court and the trial has already been initiated in the matter. Petitioner has been terminated from service on 9th of August, 2002. 3. It is important to note that an FIR was lodged against the petitioner in July, 2002 in which report under Section 173 Cr.PC stands filed in the court and the trial has already been initiated in the matter. Petitioner has been terminated from service on 9th of August, 2002. 3. Controversy in this case relates to the question as to whether an amount of Rs.39,34,489/- can be recovered as arrears of land revenue and whether procedure envisaged under law dealing in such recoveries has been complied with. 4. After having failed to deposit the aforementioned amount respondent No.3 has referred the matter to the Dy. Commissioner (Collector) for effecting the recovery from the petitioner as arrears of land revenue vide his communication dated 21-12-2002. It transpires that the recovery is sought under Section 91(CC) of the Land Revenue Act. In pursuance to the recommendations made by the respondent No.3 nothing seems to have been done by the Collector, as a result of which another communication was addressed by the Director-respondent No.2 soliciting information regarding the steps taken to seek such recovery from the petitioner. These two orders are subject matter of challenge before this Court. 5. The petitioner contends that he was not informed about the proposed action taken against him by the respondents 2 and 3. The action was initiated by respondent No.5 while taking recourse to section 63 of the Land Revenue Act. This action was prompted on the basis of reference made by respondent No.3 in terms of section 90 of the Act. 6. Petitioner has questioned this order on the following grounds: a) that section 91(CC) of the Land Revenue Act cannot be invoked in the present case. that respondent No.3 is not an officer appointed under section 90 of the Land Revenue Act for purpose of making reference to the Collector for recovering the amount. that the sum sought to be recovered from the petitioner as arrears of land revenue has not been determined after hearing the petitioner No authority has been notified as is required under the Land Revenue Act. There is no provision under the Land Revenue Act for recovering an amount which is alleged to have been embezzled by a public servant. 7. There is no provision under the Land Revenue Act for recovering an amount which is alleged to have been embezzled by a public servant. 7. On the other hand the stand of the respondents is that the petitioner during his posting as Cashier/Head Cashier was incharge of departmental chest where store keepers deposit the daily sale of the food grains sold by them under public distribution system. The said amount is required to be deposited by them in the chest and remitted to the treasury on the same or next day. This practice was flouted by the petitioner who in violation of the codal instructions had retained the amount of Rs.84,65,398.49 unauthorisedly. Having found this shortage the petitioner is stated to have remitted an amount of Rs.13,10,001.00 leaving balance of 71,81,181.00. A departmental enquiry was initiated against the petitioner whereby he was found to have retained this amount unauthorizedly with himself. An amount of Rs.31,99,946.44 was deposited by the petitioner leaving the balance of Rs.39,81,234.56/-. The petitioner having admitted this amount has failed to deposit the same as a result of which, the proceedings under the Land Revenue Act have been initiated against him. In nutshell, the stand of the respondents is that on his own admission the petitioner has accepted shortage of Rs. 39,34,489.00. On his failure to pay the amount the proceedings against him have been initiated. 8. I have heard the learned counsel for the parties and also perused the record which was produced before this Court in terms of order dated 21-10.2007. Record in the shape of an enquiry report has been produced by the respondents. 9. The shortages which have been detected by the respondents against the petitioner are required to be examined in the context in which the department has been functioning from 1990. The omission on the part of the petitioner to remit the amount received by him as a Cashier in the treasury on the same day, as required under the codal procedure, has brought about illegal retention of the money. It seems that the procedure to retain the money in the chest for a longer duration has been a practice which has been constantly followed by the office of the respondent No.1. 10. It seems that the procedure to retain the money in the chest for a longer duration has been a practice which has been constantly followed by the office of the respondent No.1. 10. While examining the enquiry report produced by the respondents it is revealed that a Commission was constituted by the respondent No.2 to hold an enquiry regarding the amount embezzled by the petitioner. This was done on 29th of September, 2001. This enquiry was confined only to locate the role of the petitioner in respect of the alleged embezzlement. This order was superseded by Government Order No.12/F of 2002 dated 20-02-2002, whereby a committee of three members consisting of Dy. Secretary Food and Supplies Department, Chief Accounts Officer Directorate of Food and Supplies Jammu and Assistant Accounts Officer, Directorate of Food and Supplies, Jammu. The point of reference in the said committee was to find out the cause of misappropriation/embezzlement and fix the responsibility and also pin point the administrative lapses. The Committee after examining the record submitted its report. It will be important to quote few passages of the enquiry report submitted: "To find out the causes which contributed to the misappropriation of Government money the relevant was verified and the following observations are made; Directorate of Food and Supplies Kashmir has maintained two cash books instead of one for recording day to day financial transaction without any subsidiary cash books or the scroll at the cash counter which gives a detailed picture of item wise receipts. The registers maintained for item wise were self confusing and nothing could be found out with the help of these registers . However, face test check of both the cash books from 1991 onwards were made date wise and it was found that the Department started keeping the revenue receipts and other cash in the Departmental chest at the close of day, month & even at the close of the financial year without any specific order from the government or Administration Department which is quite contrary to Government rules/instruction contained in Financial Code Vol. I. Huge amounts were kept in the chest for use ranging between Rs. 2,36,44,199.89 as on 26-10-1996 and Rs. 78,00,844.12 as on ending 3/2001 Lakhs ( statement enclosed as Anx. I. Huge amounts were kept in the chest for use ranging between Rs. 2,36,44,199.89 as on 26-10-1996 and Rs. 78,00,844.12 as on ending 3/2001 Lakhs ( statement enclosed as Anx. A) prior to 1991 at the end of the month or the year they use to remit the amount in the treasury and bring the book balance to nil. However, the position worsened when they started keeping huge balances at the close of the month and even at the close of the year i.e. 31st March every year( statement as Anx. B enclosed." "Further at the time of taking over the charge of Head Cashier by Sh. Mohd Afzal Malik on 11-05-1993 it is found that the cash balance as per the cash book was Rs.20,50,472.70 but Rs.288519.39 were taken over without any mention of Rs.1761953.31 which is missing from the chest. No efforts were made to trace the missing cash of Rs.1761953.31(copy of the cash book enclosed as AnnexureD) and no action was initiated against the culprit nor the Adm/Higher authorities were apprised of the fact to arrest the practice of keeping such huge cash in chest. The quantum of balance in the chest increased and no system of checks and balances was evolved which shows the involvement of higher ups in the misappropriation. 1. Retention of cash and sale proceeds in the Departmental Chest in violation of financial rules. 2. Lack of supervision by the Directors/CAOs and AAOs/Examiners etc. 3. Free hand to the cashier for advancing Govt. money to various officials of the Department and non-seriousness of the authorities for their adjustment/recovery. 4. Weak supervisory check by the audit party/RAP. 5. Non counting of physical cash in the chest at the close of the month or Financial year. If these steps had been taken into consideration, chances of Embezzlement would have considerably reduced.." While concluding their report, the Committee recommended as under: "It is established beyond doubt that the embezzled amount of Rs.4825735.00 has been misappropriated by the Head Cashier Sh. Malik but other officials viz Examiner-AAO (I)connected with the affairs of cash and accounts process including CAOs/Directors can not be absolved of their responsibilities as they have shown dereliction of duty. Besides acts of omission and commission, action under rules may be taken against these Officers / Officials as they have failed to perform their supervisory duties in the spirit of financial rules." 11. Besides acts of omission and commission, action under rules may be taken against these Officers / Officials as they have failed to perform their supervisory duties in the spirit of financial rules." 11. The Committee further directed that the Head Cashier and other unlisted officials who have embezzled this amount shall be directed to refund the same in the Treasury and an FIR may also be lodged against them so that Government money is recovered from them. 12. The conclusions of the enquiry report suggests that the process of not depositing the money in the Treasury has been continuously done from the year 1990. The amount which has been found recoverable from the petitioner reflects only part of the amount which is being embezzled. There is no determination regarding the other amount which has been illegally retained and embezzled by other officials of the department. It seems that no effort has been made by the respondents to effectively seek recovery of the amount embezzled by various officials of the department. It is clearly borne out from the report of the Committee constituted by respondent No.1. It is a clear case of cover-up to shield persons who have indulged in this malfeasance. The officials have been identified by the enquiry report. The only thing which is required to be determined is the amount which has been withheld and the amount which has been embezzled. 13. While concluding the enquiry it has been established that an amount of Rs.48,25,735.00 has been embezzled by the petitioner, Chief Accounts Officer and the Director cannot be absolved of their responsibilities as they have shown dereliction of duty. 14. It is important to note that the respondents did not reveal in their counter affidavit that a fresh enquiry committee was constituted vide order dated 20-02-2002 nor did they disclose the outcome of such an enquiry. The respondents have tried to withhold this information from the Court. It is only when the record was summoned by this Court that these facts have been revealed. Why this information was withheld from the Court is a matter of concern and the only inference which can be drawn is that the effort was made to keep these facts away from the purview of the Court for the reasons which can only be explained by the respondents. Why this information was withheld from the Court is a matter of concern and the only inference which can be drawn is that the effort was made to keep these facts away from the purview of the Court for the reasons which can only be explained by the respondents. The reasons are obvious that an effort has been made to condone the conduct of the officials of the office of respondents 1 and 2. 15. In nutshell, the import of this report would clearly reveal that the codal formalities under Rule 2-2 of Financial Code Volume-1 has been flouted with impunity from 1990 onwards. The enquiry report reveals that even at the time of taking over the charge, the petitioner was only handed over an amount of Rs.288519.39 while as the cash balance reflected by the Government was 20, 50,472. No steps have been taken to trace this missing cash. This practice has continued for a long period of time. The practice of utilizing this Government money by the officials of the Directorate is also confirmed. Some of the officials who were summoned by the enquiry committee have admitted that they had borrowed the money which has not been returned back. The imperative of checking the cash in hand has been flouted with impunity by the various Directors who have held the post from time to time. In nutshell the enquiry report states that the directions of remitting the money in the Treasury has not been complied with. The said amount has been misutilised not only by the persons who have been entrusted the job of receiving and remitting the sum, but the other officials of the Directorate. The role of the Directors has also come under cloud and their involvement cannot be ruled out as per the report. 16. It is also important to note here that amount which is sought to be recovered from the petitioner does not reflect the exact amount which is illegally retained/ embezzled by the petitioner and other officials whose role has been clearly demarcated by the enquiry report. The report has been submitted as far as back on 23rd of April, 2002 but no action has been taken by the respondents. In a situation like this what are the powers of the court to intervene. 17. The report has been submitted as far as back on 23rd of April, 2002 but no action has been taken by the respondents. In a situation like this what are the powers of the court to intervene. 17. It is not in dispute that this petition has been filed by the petitioner for redressal of his personal grievances but court has the power to treat it as public law litigation. A writ court exercising the power of judicial review has a limited jurisdiction. Writ petition would lie against the State within the meaning of Article 12 of the Constitution of India. Indisputably, exercise of jurisdiction by High Court is permissible in a case where action of the State is found to be unfair, unreasonable or arbitrary. In such a situation the courts can invoke the public law jurisdiction. 18. Abram Chayes in his article on "The Role of the Judge in Public Law Litigation" has said that the public law litigation model inter alia has the following features: "(a) The Judge is not passive, his function limited to analysis and statement of governing legal rules; he is active, with responsibility not only for credible fact evaluation but for organizing and shaping the litigation to ensure a just and viable outcome. (b) The subject-matter of the lawsuit is not a dispute between private individuals about private rights, but a grievance about the operation of public policy." 19. This observation has been made by the Apex Court in case Guruvayoor Devaswom Managing Committee & Anr. Vs. C. K. Rajan & Ors. [(2003)7 SCC 546]. In that case it was inter-alia observed that public interest litigation procedures may be adopted in a case where initially the writ petition was filed as a private interest litigation. 20. The Apex Court in AIR 2009 SC 984 in case entitled Nirmal Singh Kahlon v. State of Punjab & Ors., has observed as under: "32. The High Court while entertaining the writ petition formed a prima facie opinion as regards the systematic commission of fraud. While dismissing the writ petition filed by the selected candidates, it initiated a suo moto public interest litigation. It was entitled to do so. The nature of jurisdiction exercised by the High Court, as is well known, in a private interest litigation and in a public interest litigation is different. While dismissing the writ petition filed by the selected candidates, it initiated a suo moto public interest litigation. It was entitled to do so. The nature of jurisdiction exercised by the High Court, as is well known, in a private interest litigation and in a public interest litigation is different. Whereas in the latter it is inquisitorial in nature, in the former it is adversorial. In a public interest litigation, the court need not strictly follow the ordinary procedure. It may not only appoint committees but also issue directions upon the State from time to time" 21. In the present case what has emerged from the report submitted by committee regarding the mis-utilization of the public funds and their retention by the officials of the department has gone unnoticed and no action has been taken on it. The liability fastened on the petitioner is only on account of this fact. The process adopted by the office of the respondent No.1 in not depositing the amount in the Treasury after the same was received is in violation of Financial Code. It seems that the determination of the liability fastened on the petitioner is in respect of only that amount which has been retained by him in the chest. There is no finding in respect of the amount which has been retained by other members of the office. The investigating agency has examined this question only in respect of detecting the shortages which have been found against the petitioner. The investigating agency should have considered the whole issue in totality right from 1990 and examined as to how much of amount was retained in the chest after its deposit. This aspect of the issue has not at all been investigated by the investigating agency. I say so because the report of the Committee clearly reveals involvement of other officials of the office of respondent No.1. 22. It is interesting to note that when the petitioner took over the charge in the year 1993, he was handed over only an amount of Rs.20,50,472.70. About rest of the amount nothing is known nor has any effort been made to trace out the fate of that amount. The police has made selective investigation in the matter only to pin point the omission of the petitioner and overlooked the involvement of other persons in such matters. 23. About rest of the amount nothing is known nor has any effort been made to trace out the fate of that amount. The police has made selective investigation in the matter only to pin point the omission of the petitioner and overlooked the involvement of other persons in such matters. 23. In cases of the like nature where the realm of disputes concern public law the courts cannot function as passive spectators but act as active tools for ensuring just and viable outcome of the litigation. In such cases even though the matter was initially filed as private interest litigation, the court can treat it as public law litigation and adopt the procedure followed in public interest litigation. In the instant case necessary directions are required to be given to the respondents for unearthing the role of various officials of the directorate of CAPDD who have been indicted in the preliminary enquiry submitted on 23-4-2002. 24. This is one aspect of the matter. The other aspect is regarding the plea raised by the petitioner that this amount is not recoverable under the Land Revenue Act, is required to be examined by this Court. 25. Coming to the contention raised by the petitioner, it is visible that the sum sought to be recovered as arrears of the land revenue is not covered under sections 91(cc) but under 91 (ee) of the Land Revenue Act. The impugned notice has wrongly referred to it as the amount recoverable under the said clause. 26. The other contention raised, that no sum shall be so declared unless determined by such authority as the Government may from time to time issue notice in this behalf. In order to appreciate this argument, it is important to quote section 91 of the Land Revenue Act, the same is quoted herein below: "91. 26. The other contention raised, that no sum shall be so declared unless determined by such authority as the Government may from time to time issue notice in this behalf. In order to appreciate this argument, it is important to quote section 91 of the Land Revenue Act, the same is quoted herein below: "91. Other sums recoverable as arrears of land revenue In addition to any sums recoverable as arrears of land revenue under this Act or any other enactment for the time being in force, the following sums may be so recovered, namely: Fees, fines, costs and other charges, including rates and cesses, payable under this Act; Revenue due to the government on account of pasture or other natural products of land, or on account of mills, fisheries or natural products of water or on account of other rights described in section 35 or section 39 in cases in which the revenue so due has not been included in the assessment of an estate; Sums leviable by or under the authority of the Government as water rates , or on account of the maintenance or management of canals, embankments or other irrigation works, not being sums recoverable as arrears of land revenue under any enactment for the time being in force. Sums granted on loan by the Government for advanced studies or for undergoing advanced or special training in India or abroad including interest or penalty , if any chargeable thereupon; Loan advanced by the Government to a person who has suffered on account of fire , flood, earthquake or a calamity of like nature. Sums advanced in pursuance of Cabinet Order No. 1547-C of 1953 dated 15th December, 1953, as loan by the Government to craftsmen, artisans and petty traders with a view to the rehabilitation in such craft, art or trade. Sums advanced in pursuance of Cabinet Order No. 1547-C of 1953 dated 15th December, 1953, as loan by the Government to craftsmen, artisans and petty traders with a view to the rehabilitation in such craft, art or trade. Sums payable to the Government by a person who is surety for the payment of any of the foregoing sums or of any other sums recoverable as an arrear of land revenue; With the previous sanction of the government sums due to the Postal Department, the Dharmarth Department; Sums recoverable by the Food and Supplies Department on account of purchase , sale, transportation , milling, husking , storage or transit shortages of food grains and other essential commodities including the cost of gunny bags or any other type of containers of such food grains and essential commodities. .. which the Government may from time to time by notification in the Government Gazette, declare to be recoverable as arrears of land revenue; Provided that no such sum shall be so declared unless determined by such authority as the Government may from time to time notify in this behalf." 27. Import of section 91 makes mention of sums which are indicated from sub clause "a" to sub clause "s". These are the sums which have been defined under the Act and can be recovered as arrears of land revenue. In addition to this, other sums can also be recovered as arrears of land revenue under the said Act or in other enactment for the time being in force. These sums have not been mentioned in the section. In case the government intends to declare any other sum as recoverable, in that eventuality, notification is required to be issued in the Government Gazette to declare it as sum recoverable as arrears of land revenue. No such sum can be declared recoverable unless it is determined by such authority, as the government may from time to time notify in this behalf. What emerges from the aforesaid discussion is that determination by an authority notified by the government refers to those sums which are not defined in section 91. The contention of the petitioner that the sums had to be determined by such authority as the government may notify in respect of section 91 sub clause" ee", is not well founded. What emerges from the aforesaid discussion is that determination by an authority notified by the government refers to those sums which are not defined in section 91. The contention of the petitioner that the sums had to be determined by such authority as the government may notify in respect of section 91 sub clause" ee", is not well founded. Only such sums are required to be determined by an authority notified by the government, which have not been defined in section 91 of the aforesaid. 28. The other submission of the petitioner is that the amount which have been embezzled, cannot be recovered as arrears of land revenue under section 91 sub clause " ee". For facility of reference, sub clause "ee" is quoted herein below: (ee) Sums recoverable by the Food and Supplies Department on account of purchase , sale, transportation , milling, husking , storage or transit shortages of food grains and other essential commodities including the cost of gunny bags or any other type of containers of such food grains and essential commodities" 29. Plain reading of aforesaid clause would reveal that any amount received on account of sale, transportation of food grains, if retained by a person or withheld, can be recovered under the Land Revenue Act. In the present case, the sale proceeds of the food grains sold in various centers were required to be deposited in the Treasury , but the same has been embezzled by the petitioner and as such it can be recovered from him under sub clause " ee" 30. The other contention of the petitioner that the amount which is sought to be recovered from the petitioner is not certain and not certified as to be an amount which can be recovered as an arrears of land revenue. In this respect, it is submitted by the respondents that a certificate has been appended by the Deputy Director, Food and Supplies Department, Srinagar in which he has stated that an amount of Rs. 39,34,489/- is an amount which is recoverable from the petitioner as arrears of land revenue. There are two ways to determine this amount; one is by holding an enquiry and hearing the person before any such determination is made. The other aspect is admission of the petitioner that amount is payable by him to the State Government. 31. 39,34,489/- is an amount which is recoverable from the petitioner as arrears of land revenue. There are two ways to determine this amount; one is by holding an enquiry and hearing the person before any such determination is made. The other aspect is admission of the petitioner that amount is payable by him to the State Government. 31. The stand of the respondents that the petitioner has admitted this amount to be payable, is not reflected from the record. All that has been placed on record is a communication addressed by the petitioner which is not dated in which he admits depositing of Rs. 4,92,000/- within week. What is the amount which has been accepted by the petitioner is not revealed from this communication. No record has been produced by the respondents whereby it can be confirmed that the petitioner has accepted the liability to pay the amount as determined by them. The impugned order also does not make mention of any such admission on the part of the petitioner in this behalf. 32. The respondents have also placed an affidavit of the petitioner with their objections, admitting the amount sought to be recovered from him. Perusal of the affidavit would reveal that no amount has been specified in the said affidavit, which clearly indicates that respondents are trying to transpose this liability on the petitioner. From the aforesaid discussion, it clearly emerges that no admission was made by the petitioner. 33. So in essence there has been no admission by the petitioner before respondent -3, who made reference to the Collector under section 90. Needless to say that only such sums are recoverable which are definite and about which there is no controversy raised by the other side. It cannot be said with certainty as to what is the actual amount which is recoverable from the petitioner. 34. For purposes of determining the sum, which is to be recovered from the petitioner, a certificate is required to be issued by the officer under law to realize the sum/amount. The Land Revenue Act does not disclose the modalities as to how the sum is to be determined. It also does not disclose, whether the petitioner is required to be heard in the matter or not before determining the said sums. The Land Revenue Act does not disclose the modalities as to how the sum is to be determined. It also does not disclose, whether the petitioner is required to be heard in the matter or not before determining the said sums. If there are no positive words in the statute requiring that the party shall be heard, whether it is incumbent upon the authorities to hear him. The principle of audi alteram partem provides that no one shall be condemned unheard , is part of the rules of natural justice. Natural justice invests law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action . The law is well settled that even in an administrative proceedings , which involve civil consequences , the doctrine of natural justice must be applicable. The rule of natural justice is part and parcel of Article 14 and as such no person shall be condemned unheard. This principle has been evolved by the Apex Court in case entitled Smt. Maneka Gandhi Vs. Union of India and another reported as AIR 1978 SC 597 in which the Apex Court held as under: "Although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature. The principle of audi alteram partem, which mandates that no one shall be condemned unheard, is part of the rules of natural justice. Natural justice is great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. The inquiry must, always be : does fairness in action demand that an opportunity to be heard should be given to the person affected? The law must now be taken to be well settled that even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable." 35. Applying this principle to the present case, it would be seen that an amount of Rs.39,34,489/- sought to be recovered from the petitioner as an arrears of land revenue has been determined by issuing a certificate by respondent-3 under section 90 of the Land Revenue Act. Applying this principle to the present case, it would be seen that an amount of Rs.39,34,489/- sought to be recovered from the petitioner as an arrears of land revenue has been determined by issuing a certificate by respondent-3 under section 90 of the Land Revenue Act. Before certifying an amount to be due from the petitioner, is it necessary that he be heard in the matter. Division Bench judgment of this Court in case entitled Ghulam Rasool Vs. Dy. Commissioner, Food and Supplies and others; reported as Kashmir Law Journal (1985) 205 had occasion to deal with this issue and Court held as under : "In the present case, the authority to determine the liability of the petitioner and to initiate proceedings under the Act, was no doubt, administrative, but, considering the above said law enunciated by the highest court of the land, principles of natural justice do apply administrative orders and proceedings. The concept of natural justice, cannot be put into a straitjacket. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and the administrative authorities concerned should act fairly, impartially and reasonably,. Where administrative officers are concerned, the duty is no so much to act judicially as to act fairly. Now let us see whether any opportunity was granted to the petitioner to heard before passing the order for recovering the dues from him under the Act. The petitioner in his petition, has clearly and specifically stated that the amount has been determined without affording an opportunity whatsoever of being heard to him. The counter affidavit of respondent No.1 is silent in regard to this fact and it does not specify as to whether any notice was issued or opportunity granted to the petitioner before initiating proceedings under the Act or issuing certificate for recovery of the amount, under Sections 90 and 91 of the Act. There is certainly a violation of the principles of natural justice and the order of respondents for recovering the amount outstanding against the petitioner cannot sustain. For what has been stated above, we accept the Writ petition and by a writ of mandamus command the respondents not to recover the amount due against the petitioner as arrears of land revenue without affording him reasonable opportunity of being heard". 36. For what has been stated above, we accept the Writ petition and by a writ of mandamus command the respondents not to recover the amount due against the petitioner as arrears of land revenue without affording him reasonable opportunity of being heard". 36. Applying the principle of the aforementioned judgment, it is to be seen as to whether the petitioner has been heard in the matter before the amount has been certified to be due from him. 37. There is no dispute that preliminary enquiry report submitted by the committee in 2002 has found an amount of Rs. 48,25,735/- outstanding against the petitioner. It has also come on record that on the basis of preliminary enquiry conducted by the Deputy Director, Food and Supplies has found that an amount of Rs. 48,25,735/- was sought to be recovered from the petitioner. There is acknowledgement by the petitioner wherein he admitted that he has deposited an amount of Rs. 4,92,000/-. The respondents while replying the contention of the petitioner that no opportunity has been given to him, have stated in para-4 of their reply affidavit that shortages against the petitioner were determined on the basis of official record. It is further revealed that petitioner has submitted an application seeking permission to remit the balance amount in the Treasury. It is contended that petitioner has also filed an affidavit wherein he undertook to deposit the balance amount. But he failed to deposit the same. In essence, the stand of the respondent is based on the official record and acknowledgement by the petitioner, as such no opportunity of being heard was required to be given to the petitioner once he himself admitted the same. 38. There is no dispute as emerges from the official record that petitioner has deposited huge amount with the respondents towards liquidation of the embezzled amount. However, there is no record forthcoming whereby the petitioner has admitted this amount to be due from him. Both the Annexures R-2 and R-3 filed by the respondents with their objections do not indicate any such admission. Annexure R-2 only makes mention that the petitioner has deposited an amount of Rs. 4,92,000/- and has sought extension of time to deposit rest of the amount. An Affidavit, which is Annexure-3 filed by the respondents does not indicate the amount payable by the petitioner as admitted by him to be outstanding. Annexure R-2 only makes mention that the petitioner has deposited an amount of Rs. 4,92,000/- and has sought extension of time to deposit rest of the amount. An Affidavit, which is Annexure-3 filed by the respondents does not indicate the amount payable by the petitioner as admitted by him to be outstanding. Para-2 of the said affidavit does not show the amount which has been admitted by the petitioner as payable to the department. Placing reliance on these documents would not be proper. 39. The other aspect in this regard is that from the report dated 11-10-2001 submitted by respondent-3, it emerges that while determining the shortage, he found that an amount of Rs. 12,00,000/- was lying with Assistant Cashiers namely M/s Firdous Ahmad Shah, Manzoor Ahmad Sheikh, Ajaz Ahmad Hakim and Mohd. Shafi Khan. The said report does not indicate as to whether the amount sought to be recovered from the petitioner, includes this amount, which admittedly has been found to be retained by the aforesaid persons. Relevant portion of the report dated 11-10-2001 is reproduced as under: "In compliance to office order No. Desk/PS/001/1832-36dated 29.09.2001, undersigned conducted enquiry into the misappropriation of cash by the Incharge Head Cashier Shri Mohd. Afzal Malik. The cash book and other relevant documents were examined by Asstt. Accounts Officers namely M/s Gh. Nabi Mir and Zaffar Ahmad under my supervision. The Head Cashier and Asstt. Cashiers were called by the undersigned in presence of Chief Accounts Officer and Asstt. Accounts Officers and was asked to explain the shortages who stated that twelve lacs are with Assistant Cashiers namely M/s Firdous Ahmed Shah, Manzoor Ahmed Sheikh , Ajaz Ahmed Hakim and Mohd. Shafi Khan. The Head Cashier, Shri Mohd. Afzal Malik was ordered to handover charge temporarily to Shri Abdul Aziz Kralyari under letter No. Desk/Adm/SH-734 dated 10-10-2001." 40. The process of identifying the amount is based upon the record which has been examined by the Inquiry Committee. It has not been specified as to whether the amount with held by these persons mentioned hereinabove, is part of the amount sought to be recovered from the petitioner or not. 41. It has also come on record that at the time when the petitioner took over the charge of Cashier, an amount of Rs. 20,50,472.70 was reflected to be lying with his predecessor namely Ghulam Mohd. Hakim. Only an amount of Rs. 41. It has also come on record that at the time when the petitioner took over the charge of Cashier, an amount of Rs. 20,50,472.70 was reflected to be lying with his predecessor namely Ghulam Mohd. Hakim. Only an amount of Rs. 2,88,519/- was handed over to the petitioner. Nothing has emerged from the record, whether this amount has been recovered from said Ghulam Mohd. Hakim or not and as to whether this amount is part of the embezzled amount, which is sought to be recovered from the petitioner. The respondents did not produce any record in this behalf, which would reveal this aspect of the matter. 42. There is no dispute that petitioner has acknowledged the shortages which are found due from him by depositing part of embezzled amount with the respondents. The only failure on part of the respondents is that they have not clearly shown from the record that what is the actual amount which seems to have been embezzled by the petitioner. It seems that by fastening liability of Rs. 39,34,489/- on the petitioner, the respondents want to hush up the matter without bringing to light the actual amount embezzled by the petitioner and other officials of the department who have been indicted by the preliminary report submitted by the committee constituted in February, 2002. Systematically an effort has been made by the respondents only to pin point the liability on the petitioner by showing the aforesaid amount to be due from him, but willfully hiding from the court the actual amount, which has been embezzled right from 1990 till 2001. It is why intentionally the amount acknowledged by the petitioner to be due towards him, is not reflected anywhere. A unilateral finding by the respondents that this amount is recoverable from the petitioner, does not satisfy the requirement of law. This amount is to be determined after hearing the petitioner and disclosing from the record the actual amount which has been embezzled. 43. I, therefore, hold that the respondents have not determined the amount nor they have disclosed from the record as to whether there is any admission of the petitioner acknowledging this liability. 44. As already stated hereinabove, an affidavit filed by the respondents with their objections could have clinched the issue, but deliberately the amount has not been disclosed in the affidavit. 44. As already stated hereinabove, an affidavit filed by the respondents with their objections could have clinched the issue, but deliberately the amount has not been disclosed in the affidavit. From the aforesaid discussion, it is clear that before seeking recovery against the petitioner, the actual amount has not been determined and petitioner has not been heard in the matter. 45. There is no determination made by the respondent -3 before the aforementioned amount can be recovered as arrears of land revenue from the petitioner. Determination is defined as an effective expression of opinion which ends a controversy or a dispute by some authority to whom it is submitted under a valid law for discussion. The expression "determination" signifies an opinion which ends a controversy or a dispute by some authority to whom it is submitted. 46. The other contention raised by the petitioner is that the amount sought to be recovered from him has been utilized for the office expenses. In this respect, the petitioner has filed an application annexing various documents to indicate that the amount sought to be recovered from him in fact has been spent by him on various expenses incurred by the office. Part of the said amount is stated to have been borrowed by the officials of the Food and Supplies Department. Be that as it may, this amount was entrusted to the petitioner as Cashier and the same was required to be deposited by him in the Treasury. If the petitioner has allowed this amount to be used by the officials of the department, he has not only violated the codel procedure but has also committed breach of trust. The aforesaid amount was required to be deposited by the petitioner with the Treasury and if he has allowed this amount to be used for any other purpose, responsibility is exclusively of the petitioner. The petitioner was the trustee of the money and if the amount is misused, the liability is of the petitioner and those who were entrusted with this amount. The petitioner should have known this fact that it was government money, which was entrusted to him and should not have been misused in the manner in which he has done. The petitioner was the trustee of the money and if the amount is misused, the liability is of the petitioner and those who were entrusted with this amount. The petitioner should have known this fact that it was government money, which was entrusted to him and should not have been misused in the manner in which he has done. The contention of the petitioner that he has not misappropriated this amount but the same has been utilized by him in meeting the expenses of the office and by giving loan to the officials of the department, cannot absolve him from the liability which is fastened on him. In view of this plea raised by the petitioner, it becomes mandatory to hold an enquiry in order to find out the manner in which the government money has been mis-utilized by the officials of the Directorate of Food and Supplies. 47. In view of the above, recovery initiated against the petitioner in terms of letters dated 21-12-2002 and 20-9-2004 is quashed. Secretary, CAPDD is directed to hold fresh enquiry in the matter to identify the actual amount embezzled by the officials of the Directorate of Food and Supplies including the petitioner who have been indicted by the committee constituted on 20-2-2002 vide its report dated 23-4-2002. In this respect, he will after determining the amount, which has been actually embezzled, identify the persons who have embezzled/retained this amount with them. He will provide an opportunity of being heard to all those persons including the petitioner and thereafter pass appropriate orders as are necessary in the facts and circumstances of the case. He will take steps to recover the amount embezzled from such persons including the petitioner as arrears of land revenue under the Land Revenue Act, if it is found that the same has been embezzled by them. He will also initiate departmental proceedings against those persons under the Civil Service (Classification, Control and Appeal) Rules, 1956. Let this exercise be completed within a period of three months from the date copy of this order is received by him. In addition to this, following directions are issued to the Chief Secretary, Jammu and Kashmir: That the Chief Secretary will submit status report indicating the steps taken by the State in pursuant to the report dated 23-4-2002 for lodging an FIR against the officials/officers so indicted. In addition to this, following directions are issued to the Chief Secretary, Jammu and Kashmir: That the Chief Secretary will submit status report indicating the steps taken by the State in pursuant to the report dated 23-4-2002 for lodging an FIR against the officials/officers so indicted. That in case no steps have been taken in this regard, the matter be referred to the State Vigilance Department for registering a case against the persons who have embezzled the amount on the basis of preliminary report of the committee constituted in February, 2002 vide its letter dated 23-4-2009 and treat this as First Information Report. The Chief Secretary will submit his report to this court by or before 5th October, 2009. Copy of this judgment be sent to the Chief Secretary by the Registrar Judicial. This petition alongwith connected CMP(s) is disposed of. List the index of this file on 06-10-2009.