IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930 OP.No. 1209 of 1999(R) ----------------------------- PETITIONER(S): --------------- C.S. SCARIA, RETD. DY. COLLECTOR, HOUSE NO.VIII/55, MATHIRAPPALLY, KOTHAMANGALAM. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENT(S): -------------------- 1. STATE OF KERALA REP. BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. SPECIAL SECRETARY TO GOVT. REVENUE DEPT. SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM. ADDL.R4: DISTRICT COLLECTOR, IDUKKI. ADDL.R5: DISTRICT COLLECTOR, ERNAKULAM. ADDL.R6: DEPUTY TAHSILDAR (REVENUE RECOVERY) KOTHAMANGALAM. (IMPLEADED AS PER ORDER IN C.M.P.NO.25313/99 DATED 6.7.99) OP.No. 1209 of 1999 ADV. SRI.ALEXANDER THOMAS,SC,KPSC GOVERNMENT PLEADER SRI. M.R. SABU FOR RESPONDENTS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 1209 of 1999 ORDERS ON C.M.P.NOS. 2043 & 25314 OF 1999 DISMISSED 29.10.2008 SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF SHOW CAUSE NOTICE VIDE NO.11243/C1/88/RD DT. NIL. EXT.P2: COPY OF THE ENQUIRY REPORT. EXT.P3: COPY OF THE JUDGMENT IN O.P.NO.4086/98. EXT.P4: COPY OF THE ORDER ISSUED BY R2. EXT.P5: COPY OF THE LIABILITY CERTIFICATE DTD 18.2.99. EXT.P6: COPY OF THE DEMAND NOTICE DTD 16.4.99. EXT.P7: COPY OF THE OBJECTION DTD 27.4.99. EXT.P8: COPY OF THE DEMAND NOTICE DATED 14.5.99. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 1209 OF 1999 ---------------------------------------- Dated this the 29th day of October, 2008 JUDGMENT The petitioner retired from service, while working as Special Deputy Collector (Election), Ernakulam, on 30.9.1988. While he was working as Deputy Collector (General) and Additional District Magistrate, Idukki, during the period 1984-85, he was in charge of the District Collector, Idukki for the period from 7.9.85 to 15.9.85, in the absence of the District Collector. At that time certain illicit felling of trees was reported to him on 10.9.1985. Immediately, he issued a prohibitory order injuncting the party concerned from cutting down any tree in the property in question. The petitioner contends that subsequently the Village Officer reported that the trees are being cut as per the permission granted by the Cardamom Settlement Officer. Relying on that report of the Village Officer, the petitioner is stated to have withdrawn the prohibitory order. Alleging that as a result of the action of the petitioner and others involved, including the Cardamom Settlement Officer, the party concerned had illegally O.P.No.1209/99 2 cut down the trees resulting in loss to the Government which amounts to dereliction of duty on the part of the petitioner, disciplinary proceedings were initiated against the petitioner. It culminated in Ext.P2 enquiry report, wherein it was found that the the petitioner had, while holding the charge of the District Collector, Idukki, did not discharge his duties with due diligence and responsibility and that his hasty withdrawal of the prohibitory orders, his failure to bring the matter to the notice of the District Collector promptly on his return to duty and lack of co-ordination with the Forest authorities etc., would reveal that there was grave dereliction of duty and irresponsibility on the part of the petitioner. Relying on this finding of guilt, the disciplinary authority imposed on the petitioner the penalty of reduction in pension of Rs.150/- per month. It was also ordered that an amount of Rs.10,35,600/-, being a portion of the loss sustained by the Government, be recovered from the DCRG and the pensionary benefits of the petitioner. Subsequently, that amount was reduced to Rs.5.45 lakhs. Thereafter, proceedings were initiated by the District Collector for recovery of an amount of Rs.5,52,402/- from the petitioner under the Kerala Public Accountants Act. Revenue O.P.No.1209/99 3 recovery proceedings were also initiated for recovery of that amount. The petitioner is challenging the punishment of reduction in pension as also the recovery of the alleged loss caused to the Government on account of his purported dereliction of duty. 2. The petitioner's contention is that in Ext.P2 enquiry report, the Enquiry Officer has categorically found that no evidence has been adduced by the respondents to establish that there was actually loss to the Government due to any act or omission on the part of the petitioner and to prove the quantum of such loss. The Enquiry Officer had specifically entered a finding that he is unable to arrive at a fair and reasonable conclusion regarding the alleged loss caused to the Government by the petitioner. The argument is that when the Enquiry Officer himself has categorically found that there was no evidence in the enquiry to conclude that the Government had sustained loss on account of any act or omission on the part of the petitioner and in the absence of any evidence for quantification of such loss, no proceedings could have been initiated for recovery of alleged loss caused to the Government. He also submits that he is not a public O.P.No.1209/99 4 accountant as defined under the Kerala Public Accountants Act and even otherwise loss caused on account of alleged misconduct cannot be recovered through proceedings under the Kerala Public Accountants Act. He relies on the decision of this Court in PARAMU PILLAI V. DISTRICT COLLECTOR [1989 (1) KLT 224], wherein a Division Bench of this Court has held that if the loss is caused by the conduct of a person employed in the service of the Government, by negligence or misconduct otherwise than in respect of moneys, securities for money, documents or other property entrusted to him, the remedy available to the State to recover the said loss is either by resorting to the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules or by instituting an appropriate suit for recovering the loss or damages caused by the negligence or misconduct on the part of the Government servant and the provisions of the Kerala Public Accountants Act cannot be pressed into service where there is no entrustment of moneys, securities for money, documents or other property belonging to the Government or belonging to any person or persons or to any institution for and on behalf of Government to a public accountant. For the contention that the District O.P.No.1209/99 5 Collector has not complied with the provisions of the Kerala Public Accountants Act before deciding to recover the amount from the petitioner, the petitioner relies on the decisions of this Court in Velayudhan Pillai V. D.F.O. [2001(1) KLT S.N.52] and Vincent V. State of Kerala [1998(1) KLT 305]. The petitioner further submits that the reduction in pension can be imposed on a pensioner only if he is found guilty of grave misconduct or negligence during the period of his service. He therefore contends that the reduction of pension is unsustainable. He relies on the decision of this Court in Union of India V. Mohandas [2005(2) KLT 534] in support of this proposition. He also points out that as per sub clause (c) of Clause (ii) of Article 303B of the Kerala Financial Code, the question of recovery arises only if malafides are proved. The petitioner on the above contentions, seeks the following reliefs: “issue a writ of certiorari or any other appropriate writ or order quashing Ext.P4 direct the respondents 1 and 2 to disburse all pensionary benefits to the petitioner”. 3. A counter affidavit has been filed by respondents 1 and 2 refuting the contentions of the petitioner. They would O.P.No.1209/99 6 submit that the punishment has been imposed as per the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules. In so far as the petitioner has no challenge against the conduct of the enquiry itself, the petitioner cannot challenge the punishment itself unless the finding is totally perverse. According to respondents 1 and 2, the finding had been arrived at on the basis of evidence on record, which has been elaborately discussed in Ext.P2 report of the Enquiry Officer. Further they submit that it is settled law that the sufficiency of evidence is not a question that can be considered by this Court under Article 226 of the Constitution of India and if there is some evidence to hold the delinquent guilty, this Court will not ordinarily go into sufficiency of evidence. As regards the recovery of loss caused to the Government, the learned Government Pleader would submit that in so far as the fact that the trees belonging to the Government have been cut down, which was found to be the result of dereliction of duty on the part of the petitioner also, the petitioner cannot escape from the liability to compensate the Government for the loss sustained by the Government because of the misconduct found to have been committed by the petitioner. The learned O.P.No.1209/99 7 Government Pleader also submits that in so far as the petitioner is the custodian of money, he would squarely come within the purview of the definition of 'Public Accountant' under the Kerala Public Accountants Act and therefore proceedings initiated under the Kerala Public Accountants Act are valid and proper. 4. I have considered the rival contentions in detail. 5. At the outset I must note that the petitioner is not challenging the validity of the disciplinary enquiry conducted against him on the ground of violation of principles of natural justice or non-compliance with any procedure prescribed under the Kerala Civl Services (Classification, Control and Appeal) Rules. His only contention is on the validity of the findings in the enquiry report. He would submit that he is totally innocent of the matter. According to him, he withdrew the prohibitory order issued by him only on the basis of the report of the Village Officer that the Cardamom Settlement Officer had granted permission to cut the trees. Therefore, he could not have been validly found guilty of any misconduct of dereliction of duty, is the contention raised. I do not find any merit in that contention. In Ext.P2, the Enquiry Officer has elaborately O.P.No.1209/99 8 considered the evidence in the enquiry in minute detail and he ultimately came to the following conclusion: “A perusal of the records would reveal that no specific charge of corruption or personal gains has been raised against the accused officer. The prosecution has also not proved any malafide intention on the part of the accused officer beyond doubt except that his action was to illegally benefit the party and to cause wrongful loss to Government. The loss if any, sustained by the Government has also not been specified. However, I do find that Sri. C.S. Scaria, while holding the charge of District Collector, Idukki did not discharge his duties with due diligence and responsibility. His hasty withdrawal of the prohibitory orders, his failure to bring the matter to the notice of the District Collector promptly on his return to duty, lack of co-ordination with the Forest authorities etc, would reveal that there was grave dereliction of duty and irresponsibility on the part of the accused officer. His plea of innocence is not seen substantiated by his mere contention that there was manipulation of the Collectorate file, that the District Collector was having personal grudge against him etc. The only point which deserves consideration is that the accused officer is due to retire shortly after a continuous service of over thirty years which fact the Government may be pleased to take into account while arriving at a conclusion in his case”. On a perusal of Ext.P2, I am satisfied that there was sufficient evidence to enter a finding that the petitioner is guilty of lack O.P.No.1209/99 9 of due diligence and responsibility as also grave dereliction of duty. Therefore, in respect of that finding, I do not find any merit in the contentions raised by the petitioner. Since withholding of pension is one of the punishments mentioned in Rule 11 of the Kerala Civl Services (Classification, Control and Appeal) Rules, there is no merit in the challenge against the punishment of reduction in pension at the rate of Rs.150/- per month from the petitioner. According to me, the reliance by the petitioner, on various decisions, the Kerala Financial Code and the Kerala Service Rules in this respect, is not relevant, in so far as the petitioner has been imposed with the punishment of reduction in pension in accordance with the provisions of the Kerala Civil Services (Classification, Control and Appeal) Rules. For that the provisions of the KSR and Financial Code are not applicable. Those provisions would be applicable only when the pension is sought to be reduced otherwise than as punishment for misconducts in accordance with the provisions of those Rules which is not the case here. Therefore, I do not find any merit in the challenge against the imposition of punishment of reduction of pension on the petitioner. O.P.No.1209/99 10 6. However, it is quite a different circumstance in so far as recovery of alleged loss to the Government is concerned. Causing loss to the Government was one of the charges levelled against the petitioner in the disciplinary proceedings the orders pursuant to which is under challenge in this original petition. In respect of that charge, the Enquiry Officer entered the following finding: “................................. In this connection I may report that though it is alleged in the 1 st charge that the action of the accused officer was in a way helpful to the party to continue large scale felling of trees from the lands held by Sri. Thomas Sebastian causing very huge and wrongful loss to Government, no evidence has been adduced to establish whether there was actual loss to Government due to the omission/commission on the part of the accused officer and if so, what the exact quantum of loss is. In the absence of concrete evidence in this regard I am unable to duly consider this aspect of the case and to arrive at a fair and reasonable conclusion regarding the alleged loss caused to Government by the accused”. Therefore, the Enquiry Officer categorically found in favour of the petitioner on the question of causing wrongful loss to the Government on account of the misconduct committed by the petitioner. There is also no evidence regarding the quantum of loss. Therefore, there is no evidence to show that, as a result O.P.No.1209/99 11 of the misconduct proved against the petitioner, the Government has actually incurred any loss. Without such finding no loss could have been recovered from the petitioner, at least pursuant to the disciplinary proceedings. 7. As regards the proceedings initiated against the petitioner under the Kerala Public Accountants Act, I find considerable merit in the contentions raised by the petitioner on the basis of the Division Bench decision of this Court in PARAMU PILLAI's case (supra). On this question, the Division Bench in that decision held thus: “As we are not concerned in this case with the person employed by any authority or institution other than the Government, it is unnecessary to advert to them. We are concerned in this case with the appellant who was employed in the service of the Government as a Village Officer. The definition of the expression “Public accountant” makes it clear that it is not every employee in the service of the Government that can be regarded as a public accountant. It is only an employee who is entrusted with the receipt, custody, possession or control of any moneys or securities for money, documents or other property belonging to the Government or who, in his capacity as Government servant is entrusted with the receipt, custody, possession or control of any moneys or securities for money, document or other property belonging to any person or persons or to any institution for and on behalf of the Government. Thus a Government servant becomes a O.P.No.1209/99 12 public accountant (1) if he is entrusted with the receipt, custody, possession or control of any moneys or securities for money, documents or other property belonging to the Government or (2)if he is entrusted with the receipt, custody, possession or control of any moneys or securities for money, document or other property belonging to any person or persons or to any institution for and on behalf of the Government. What sub-s (1) of S.3 contemplates is the claim on public accountant for moneys, securities for money documents or other property. Though sub-s (1) of S.3 does not in terms speak of entrustment, as the claim can be enforced only against a public accountant, having regard to the definition of the expression 'public accountant' contained in S.2 (b) which renders an employer in the service of the Government a public accountant only when there is such entrustment, it has to be held that the claim contemplated by sub-s (1) of S. 3 on the public accountant can only be for the purpose of recovering the loss caused in respect of the moneys, securities for money, documents or other property entrusted to the public accountant either belonging to the Government or belonging to any person or persons or to any institution for and on behalf of the Government. If there is no entrustment of moneys, securities for money, documents or other property to the public accountant, the provisions of S.3 of the Act cannot be invoked. If the loss is caused by the conduct of a person employee in the service of the Government, by negligence or misconduct otherwise than in respect of moneys, securities for money, documents or other property entrusted to him, the remedy available to the State to recover the said loss is either by resorting to the provisions of the Kerala Civil Services (Classification, Control and O.P.No.1209/99 13 Appeal) Rules or by instituting an appropriate suit for recovering the loss or damages caused by the negligence or misconduct on the part of the Government servant. The procedure prescribed for claiming the amount under S. 3 is a summary one. No further appeal or revision is provided against the decision of the Collector rendered in this behalf, because what the Act contemplates is only the recovery of loss in respect of moneys entrusted to the public accountant either belonging to the Government or belonging to any person or persons or to any institution for and on behalf of the Government. It is obvious that the provisions of the Act do not take in to account the various types of liabilities of the Government servant that may be incurred on account of the negligence, misconduct etc. We have therefore no hesitation in taking the view that the provisions of the Act cannot be pressed into service where there is no entrustment of moneys, securities for money, documents or other property belonging to the Government or belonging to any person or persons or to any institution for and on behalf of the Government to a public accountant” The ratio of that decision squarely applies to the facts of this case. Further I also find merit in the contentions of the petitioner that the District Collector has not complied with the procedure prescribed under the Kerala Public Accountants Act before proceedings to recover the amounts for which the petitioner is alleged to be responsible. Since the revenue recovery proceedings is pursuant to that invalid proceedings, O.P.No.1209/99 14 the revenue recovery proceedings are also unsustainable. In view of the above findings, I quash all the proceedings initiated against the petitioner for recovery of the alleged loss caused to the Government on account of the misconduct found to have been committed by the petitioner. However, the imposition of punishment of reduction in pension on the petitioner at the rate of Rs.150/- per month cannot be validly assailed by the petitioner and accordingly the same is confirmed. Ext.P4 would stand modified accordingly. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.1209/99 15