IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 29184 of 2008(C) -------------------------- PETITIONER : --------------- J. THOMAS, ANANTHAKKATTU HOUSE, MATHRA.P.O, PUNALOOR VIA, PRESIDENT, KARUVALLUR SOCIAL SERVICE SOCIETY, MATHRA, KOLLAM DISTRICT. BY ADV. SRI.RAJU K.MATHEWS RESPONDENTS: --------------- 1. THE SECRETARY, ANCHAL BLOCK PANCHAYATH. 2. THE SCHEDULED CASTES DEVELOPMENT OFFICER, ANCHAL BLOCK PANCHAYATH, ANCHAL. 3. THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 4. THE DEPUTY TAHSILDAR (RR) TALUK OFFICE, PATHANAPURAM. ADV. SRI.M.K.CHANDRA MOHANDAS FOR R1 GOVERNMENT PLEADER SRI. ABDUL SALAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29184 of 2008(C) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE LETTER NO.6519/P3/06/LSGD DATED 25.3.2006 OF THE 3RD RESPONDENT EXT.P2 : TRUE COPY OF THE LETTER NO.167/07 DT.17.9.2007 OF THE 2ND RESPONDENT EXT.P3 : TRUE COPY OF THE LETTER DT.26.9.2007 OF THE PETITIONER ADDRESSED TO THE 2ND RESPONDENT EXT.P4 : TRUE COPY OF THE NOTICE NO.C3-13704/08 DT.24.6.2008, OF THE 4TH RESPONDENT RESPONDENTS' ANNEXURES: EXT.R3(a) : TRUE COPY OF THE ORDER OF HONOURABLE OMBUDSMAN EXT.R4(1) : TRUE COPY OF THE LETTER NO.6519/P3/06/LSGD DT25.3.2006 //TRUE COPY// P.A. TO JUDGE jma K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 29184 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of December, 2011 J U D G M E N T The petitioner, the President of a Society submitted quotation for a tender invited by the second respondent for the supply of bee hives to the Anchal Block Panchayat. The petitioner's quotation was the lowest and he was awarded the tender to supply bee hives and accessories and also impart training in the methods of bee keeping and honey processing. The petitioner having met with his obligation under the tender; the second respondent released the amounts due to him as per his quotation. The first respondent was issued Ext.P1 letter dated 25.3.2006 from the Secretary to Government, the 3rd respondent, seeking recovery of an amount of Rs.3,82,170/- on the ground that the Vigilance and Anti Corruption Bureau had conducted enquiry into the allegation that the second respondent along with some other members of the Block Panchayat had committed serious mal practices in the implementation of the project of Bee keeping and Honey processing. In Ext.P1 it was also stated that Sri. J. WPC.29184/2008 : 2 : Thomas, the petitioner herein had received a 'pecuniary advantage' of Rs.3,82,170/-, which was directed to be recovered from him. As per Ext.P1 the petitioner was directed to remit the amounts by the second respondent, by Ext.P2, to which the petitioner replied by Ext.P3 contending that he was not liable for the same and also taking a specific plea that he was not a party in any of the enquiries said to have been made by the Vigilance and Anti Corruption Bureau and also that no notice was issued to him prior to the claim of refund. However, the respondent Government went ahead and issued Ext.P4 notice under the Revenue Recovery Act for recovery of the amounts from the Government. It is not clear as to how the amounts were treated as loss and quantified or how the liability so quantified was imposed on the petitioner. 2. The first respondent has filed counter affidavit on behalf of the Panchayat reiterating the allegation made in Ext.P1 and also relying on the enquiry said to have been conducted by the Vigilance and Anti Corruption Bureau. The counter affidavit also states that the petitioner had been instrumental in making a loss of Rs.3,82,170/- to the WPC.29184/2008 : 3 : Government, but however, is silent as to any notice being issued to the petitioner or any enquiry being conducted with respect to the quantification of the amounts or the imposition of liability on the petitioner. The Government also has filed counter affidavit raising the very same allegations but again without any details as to the enquiry conducted by the Director of Vigilance and Anti Corruption Bureau. It is pertinent to notice that as in Ext.P1, the counter affidavit of the Panchayat as also the Government alleges that as per the report of the Vigilance and Anti Corruption Bureau, misappropriation was conducted by the second respondent along with the some other members of the Block Panchayat. 3. There is nothing on record to show that any of these persons were proceeded against by the V&ACB or by the Government. State in its counter affidavit has also produced an order of the Ombudsman for Local Self Government Institutions to support their contention that the amount is to be recovered from the petitioner. The said orders Ext.R3(a) is dated 12.1.2004 and long before Ext.P6 and is anterior to the enquiry said to have been conducted by the V&ACB. On going WPC.29184/2008 : 4 : through the Ombudsman's order, I find that the Ombudsman held that the findings in the audit are suggestive of dereliction of duty on the part of the Panchayat authorities tantamounting to squandering of public funds. The submission of the Panchayat that the matter is being referred to the Vigilance also has been recorded and the only direction issued is that the petitioner after receipt of copy of the audit report can initiate appropriate proceedings before the competent authority for recovery of loss suffered by the Panchayat. Strangely, Government or the Panchayat does not speak about any proceedings initiated against its officers nor is there a whisper about the enquiry conducted by the V&ACB and the result thereon. 4. As noticed earlier, the petitioner in the above writ petition is not a party to any of the enquiry proceedings nor even in the proceedings before the Ombudsman. The petitioner merely has been issued a letter by the second respondent demanding refund of an amount which is not seen adjudicated as loss and quantified in any manner. The allegation in Ext.P1 that loss has been caused to the WPC.29184/2008 : 5 : Government is on the specific ground that the second respondent and some other members of the Block Panchayat has committed serious mal practices in the implementation of the project. The records does not reveal any action having been taken against the said officers. The proceedings for recovery taken against the petitioner evidenced by Exts.P2 and P4 is absolutely illegal, without any enquiry being conducted in the matter and if at all conducted; behind the back of the petitioner. It is not a case where the principles of natural justice alone have been violated, but, is a matter on which the Government through its officers has acted in a highly arbitrary and illegal manner trying to sheild the persons who are alleged to have committed mal practices. There is no quantification of loss made and in the alleged enquiry conducted by the V&ACB the petitioner was not allowed to participate. In the circumstances, I set aside Ext.P2 demand and Ext.P4 revenue recovery notice as being violative of the principles of natural justice, illegal and arbitrary. The facts noticed reveal arbitrariness writ large in the proceedings for WPC.29184/2008 : 6 : recovery initiated against the petitioner without any adjudication as to the loss caused and quantification of such loss and I am constrained to impose exemplary cost of Rs.5,000/-(Rupees Five thousand only) to be paid by the Government to the petitioner recoverable from the incumbent who held the post of the 3rd respondent at the time of issuance of Ext.P1 communication. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A. to Judge