IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 OP.No. 2934 of 1999(Y) ---------------------- PETITIONER(S): --------------- JOHN FERNANDEZ, ROSHINI COTTAGE, VYTHIRI P.O., WAYANAD-673516 *SUPPLEMENTARY PETITIONERS 2. TREESA FERNANDEZ, W/O JOHN FERNANDEZ ROSHINI COTTAGE, VYTHIRI P.O., WAYANAD-673516 3. ROSHAN FERNANDEZ,S/O. JOHN FERNANDEZ -DO- -DO- 4. ROYICE FURNANDEZ, -DO- -DO- -DO- 5. ROSHNI FERNANDEZ, D/O JOHN FERNANDEZ, -DO- -DO- (* Impleaded as per order dt.27.8.2008 in I.A No.15583/2005) BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI RESPONDENT(S): --------------- 1. THE DIRECTOR OF SCHEDULED CASTES & SCHEDULED TRIBES, VIKAS BHAVAN, THIRUVANANTHAPURAM 2. THE ACCOUNTANT GENERAL(A&E) OFFICE OF THE ACCOUNTANT GENERAL (A&E) KERALA, THIRUVANANTHAPURAM BY SMT. SANTHAMMAN, SPECIAL GOVERNMENT PLEADER(SC/ST) THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 2934 of 1999(Y) APPENDIX PETITIONER'S ANNEXURES: EXT.P1 : TRUE COPY OF THE JUDGMENT IN O.P.NO.2291/98 EXT.P2 : TRUE COPY OF THE NOTICE DATED 14.7.1998 EXT.P3 : TRUE COPY OF THE REPRESENTATION BEFORE R1 EXT.P4 : TRUE COPY OF THE ORDER DATED5.1.1998 EXT.P5 : TRUE COPY OF THE INTIMATION DT.5.1.99 RESPONDENTS' ANNEXURES: EXT.R1(a) : TRUE COPY OF THE REPORT //TRUE COPY// P.A. TO JUDGE jma K. VINOD CHANDRAN, J ---------------------------------------------------- O.P No.2934 of 1999 ---------------------------------------------------- Dated this the 21st day of November, 2011 J U D G M E N T The petitioner retired from the service while working as project officer in the Integrated Tribal Development Project in Wayanad under the Scheduled Caste and Scheduled Tribe Development Programme. The petitioner in the above writ petition challenges the liability fixed on him as per Exts.P4 and P5, more particularly Rs.72,500/- shown as item No.3 in Ext.P4 and item No.2 in Ext.P5. The petitioner's counsel submits that he does not have any dispute with respect to the other two items fixed as liability, to which he has admitted. The petitioner is deceased and the legal heirs have been impleaded as petitioners 2 to 5 as per order dated 27.8.1988 in I.A No.15583/2005. 2. The petitioner, after his retirement was not disbursed with pensionary claims and challenging the said inaction approached this Court with a writ petition which was disposed of as per Ext.P1. Pursuant to Ext.P1, Ext.P2 notice was issued proposing to fix liability inter alia of ` 72,500/- on the OP 2934/1999 : 2 : petitioner with respect to the non-utilization of the said amount, out of the ` 2,20,000 sanctioned by the department for the welfare of the tribals under the Scheme “Food Support Programme”. To the said notice, the petitioner had filed detailed reply(Ext.P3) in which the petitioner contends that he was unable to avail the service of technical staff due to the absence of incumbents in sanctioned posts in the ITDP,but also admits that he was unable to avail the service of technical staff from other departments as per Government instructions dated 22.3.1996 since the work had to be conducted and finished in a war footing. The petitioner also contended that liability now sought to be fixed on him has not been specifically determined and only rough estimates have been prepared. The Government however, by Ext.P4 order fixed the liability of the petitioner. In Ext.P4 order the total liability of the petitioner was fixed at ` 1,45,000 and after adjusting the amount of DCRG, the balance amount is sought to be recovered in 109 equal monthly instalments. On the basis of Ext.P1, Ext.P5 was also communicated to the Accountant General, Kerala. The Special Government Pleader(SC&ST) appearing for the Government would rely on Ext.R1(a) produced in the counter affidavit dated 16.6.1999 and contend OP 2934/1999 : 3 : that Finance Inspection Wing of the department had conducted a surprise inspection in the Tribal colonies during January 1997, with reference to the loss sustained by the Government. It is pertinent to note that the said inspection was not done on the complaint of any of the beneficiaries nor is there any complaint made during inspection. The entire report rests on the premise that only `1,48,500/- has been approximately spend by the deceased petitioner, the then Project Officer. It is pertinent to notice that the report itself records the remark made by the Chief Technical Examiner that the work of maintenance and whitewashing done on the houses cannot be easily distinguished after a long period of time and that correct quantification requires elaborate tests which according to the officer is not advisable for minor works. Hence, noticing that the case involves the settlement of a pension case, the Finance Inspection Wing(Non- Technical) proceeded to assess the amount that would have been actually spend by the Project Officer in the maintenance of houses in the colony. The names of the beneficiaries were listed from 1 to 54 in column 1 and the nature of the maintenance work executed was listed in column 4 with the sanctioned amount in column No.5. The Finance Wing then OP 2934/1999 : 4 : went ahead and calculated the approximate amount that would have been spend for the maintenance work, without any material. The learned Special Government Pleader would contend that considering the minor nature of the work, the Finance Wing could not have done anything else to fix the liability. I find that the fixing of the liability is not the purpose of the inspection but the officers should have tried to find out if, in fact, the beneficiaries did or did not get the benefits of the project and whether the Government sustained any loss due to any default committed in the execution of work. The inspection did not reveal that the work was not carried on and as noticed earlier, there is no complaint from any of the beneficiaries that work is not carried on in accordance with the sanction. The liability seems to have been fixed on the assumption that the Project Officer would have spend only a lower amount for the work that was completed; and that too when the report itself concedes that the technical officer was unable to clearly distinguish the work carried on due to passage of time. I am of the view that the mere assumption made by the Inspection Wing without any material whatsoever is grossly inadequate to fix the liability of Rs.72,500/-. In the said circumstances, Ext.P4 order fixing the liability to the OP 2934/1999 : 5 : extent it fixes liability on the petitioner as per item 3 totalling an amount of `72,500/- is without any basis and is set aside. The first respondent is directed to issue necessary orders consequent to the partial setting aside of Ext.P4 order to the second respondent, at any rate, within a period of three months from today. The first respondent shall communicate the consequential orders to the second respondent. The first respondent shall compute the exact amount of liability excluding what is set aside by this Court and shall take necessary steps to refund any excess to the legal heirs of the petitioner. The original petition is allowed. No order as to costs. Sd/- K. VINOD CHANDRAN (Judge) jma //true copy// P.A to Judge