IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 WP(C).No. 19221 of 2007(L) -------------------------- PETITIONER: --------------- SREEKRISHNA KUMAR,AGED 42 YEARS, S/O.CHELLAPPAN PILLAI, KRISHNA VENI,CHEPPAD,HARIPAD. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): --------------- 1. THE MUTHUKULAM GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY,MUTHUKULAM GRAMA PANCHAYAT. 3. H.MOHAMMED KUNJU,'SHIYAS MANZIL' CHEPPAD,HARIPAD,ALAPPUZHA DISTRICT. 4. RAMDAS P.R.,'PRATHYUSHA' RAMAPURAM,KEERIKKADU P.O., KAYAMKULAM. 5. THE SECRETARY,SERVICE CO-OPERATIVE SOCIETY LTD.NO.A702,CHEPPAD. 6. THE TAHSILDAR,KARTHIKAPPALLY. 7. THE ASSISTANT ENGINEER, MUTHUKULAM GRAMA PANCHAYAT. ADV. SRI.V.MADHUSUDHANAN FOR R3 SRI.V.VENUGOPAL FOR R3 SRI.B.UNNIKRISHNA KAIMAL FOR R3 SRI.PRAMJI PAUL VAZHAPPILLY FOR R3 SRI.S.SANKARAN THAMPI FOR R3 SRI.ANIL K.NAIR FOR R3 SRI.S.SANAL KUMAR FOR R4 SMT.BHAVANA VELAYUDHAN FOR R4 SMT.JAYA CHANDRAN (KAYAMKULAM) FOR R1 GOVERNMENT PLEADER SRI SHYSON P. MANGUZHA FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ESTIMATE. EXT.P2 TRUE COPY OF THE NOTICE ISSUD BY THE PETITIONER TO THE 4TH RESPONDENT DATED 30/10/2001. EXT.P3 TRUE ;COPY OF THE SURCHARGE CERTIFICATE DATED 16/10/2004. EXT.P4 TRUE COPY OF THE DEMAND NOTICE DATED 18/2/2006. EXT.P5 TRUE COPY OF THE NOTICEW DAT3D 5/5/07 BY THE 6TH RESPONDENT. HARUN-UL-RASHID,J. --------------------------- W.P.(C).NO.19221 OF 2007 ---------------------------- DATED THIS THE 20TH DAY OF JANUARY, 2009 JUDGMENT Petitioner is the Convener of the project sponsored by the lst respondent-Panchayat. Construction of a shopping complex is the project. Petitioner is a Peon working in the 5th respondent- Co-operative Society. The project is under the People's Planning Programme and therefore the petitioner and the 3rd respondent were selected as Convener and Chairman of the beneficiary committee. It is submitted by the petitioner that due to the inordinate delay on the part of the Panchayat from getting sanction from the Assistant Executive Engineer and also due to the mismanagement of the 4th respondent-Contractor, the work could not be completed. Therefore, the petitioner issued Ext.P2 notice stating the reasons for inability to complete the work. Subsequently, the Local Fund Audit Department conducted an audit and reported that the petitioner is liable to pay Rs.1 lakh -2- W.P.(C).No.19221/2007 towards the loss caused to the Government. Ext.P3 is the surcharge certificate. Pursuant to Ext.P3, Ext.P4 demand notice was issued, followed by Ext.P5 prohibitory order issued by the 6th respondent directing the 5th respondent to recover Rs.1,500/- each per month from the petitioner's salary from May, 2007 onwards. 2. The prayer made in this writ petition is to quash Exts.P3, P4 and P5 and to direct the 2nd respondent to re-consider the matter, after giving an opportunity of being heard to the petitioner. Petitioner also submitted that he was not given any opportunity to represent his case before issuing Ext.P3 surcharge certificate. 3. The order issuing Ext.P3 surcharge certificate is an appealable order. The appeal lies to the District Court. But in view of the fact that Exts.P3, P4 and P5 are challenged before this Court, the petitioner could not file an appeal in time. Since the petitioner has got a statutory remedy by way of appeal, I -3- W.P.(C).No.19221/2007 direct him to file an appeal before the District Court within three weeks from today. The delay in filing the appeal was occasioned due to the fact that the petitioner has prosecuted this writ petition. Therefore, the District Court is directed to condone the delay, register the appeal to file and consider and pass orders on merits within a period of six months from today. Recovery proceedings pursuant to Exts.P3, P4 and P5 shall be kept in abeyance, till the disposal of the appeal. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv. The word “appeal” wherever it occurs in paragraph 3 of the judgment dated 20/01/2009 in WP(C) No.19221/2007 is corrected as “application”as per order dated 24/02/2009 in I.A No. 2342/2009. Registrar(Judicial)