IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 11TH APRIL 2011 / 21ST CHAITHRA 1933 WP(C).No. 37750 of 2008(R) ---------------------------------------- PETITIONER(S): ------------------------ G.J.WINSENT, "JYOTHI",T.C.1/1458, PJRRA H-2, POTHUJANAM LANE, KUMARAPURAM, MEDICAL COLLEGE .P.O, THIRUVANANTHAPURAM DIST. BY ADVS. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.PIRAPPANCODE V.S.SUDHIR SRI.SAJU JOHN SRI.V.VARGHESE RESPONDENT(S): -------------------------- 1. THE DIRECTOR, AGRICULTURE DEPARTMENT, VIKAS BHAVAN, THIRUVANANTHAPURAM-695 033. 2. THE PRINCIPAL INFORMATION OFFICER, FARM INFORMATION BUREAU, KAWDIAR, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 4. THE DEPUTY TAHSILDAR(RR),TALUK OFFICE, FORT, THIRUVANANTHAPURAM. 5. THE PRINCIPAL SECRETARY TO GOVERNMENT, AGRICULTURE DEPARTMENT, THIRUVANANTHAPURAM. 6. THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. R1 TO R6 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.37750/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE LETTER NO.H.1484/03 DATED 25/04/2003 OF THE 2ND RESPONDENT. P2 COPY OF THE LETTER DATED 24/5/2003 SENT BY THE PETITIONER. P3 COPY OF THE OFFICE ORDER NO.8/2001 DATED 5/9/2001. P4 COPY OF THE CIRCULAR NO.71/93/FIN DATED 7/10/1993. P5 COPY OF THE ORDER DATED 11/2/2004 OF THE HON'BLE LOK AYUKTA IN COMPLAINT NO.250/03. P6 COPY OF THE DEMAND NOTICE DATED 2/7/2008 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 7 OF THE R.R. ACT. P7 COPY OF THE DEMAND NOTICE DATED 2/7/2008 ISSUED BY THE 4TH RESPONDENT UNDER SECTION 34OF THE R.R.ACT. P8 COPY OF THE ORDER DATED 21/11/2007 ISSUED BY THE PRINCIPAL INFORMATION OFFICER FARM INFORMATION BUREAU, KAWDIAR.P.O., THIRUVANANTHAPURAM. P9 COPY OF THE LETTER NO.D.2112/03 DATED 21/11/2008 OF THE GOVERNMENT. P10 COPY OF THE ORDER NO.28318/EB.2/04/AGRICULTURE DEPARTMENT DATED 2/2/2007 OF THE GOVERNMENT. P11 COPY OF THE PETITION DATED 12/11/2008 FILEDBY THE PETITIONER BEFORE THE HON'BLE MINISTER FOR REVENUE. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No. 37750 OF 2008 --------------------------------------- Dated this the 11th day of April, 2011 JUDGMENT The petitioner retired from service on 30.4.2002 as Deputy Director of Agriculture in the Department of Agriculture of the Government of Kerala. For some time, he worked as Editor-cum- Press Relation Officer in the Farm Information Bureau of the Agricultural Department. The Farm Information Bureau used to publish a magazine called 'Kerala Karshakan'. The Department used to accept advertisements for publication in 'Kerala Karshakan' from various parties including public sector undertakings. Large amounts of advertisement charges recoverable from such parties were outstanding. An audit objection was raised, whereby during the period when the petitioner was the Editor-cum-Press Relation Officer of the Farm Information Bureau, an amount of Rs.8,19,257/- was failed to be collected from the parties. The petitioner was directed to show cause why it should not be recovered from him. The petitioner W.P.(C)No.37750/08 2 explained that it was not his responsibility for collecting the same and further that the amounts which fell due from public undertakings could easily be recovered by the later incumbents. The petitioner approached the Lok Ayukta and got payment of DCRG. Now the petitioner has been issued with revenue recovery notices for recovery of the said amount of Rs.8,09,257/ + interest. The petitioner is aggrieved by the same. The petitioner, therefore, seeks the following reliefs: “i) issue a writ of certiorari of any other appropriate writ, order or direction calling for the records leading to Exts.P1, P6, P7, P8 and Ext.P10 and quash Ext.P1 to the extent it is objected to in this Writ Petition and Exts.P6, P7, P8 and P10 as a whole. ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents not to take any recovery proceedings for realization of any amount from the petitioner on the basis of the audit report, Ext.P1 and also as per Exts.P6, P7,P8 and P10. iii) Declare that the petitioner is not eligible to pay any amount to the Government on the basis of Exts.P1, P6, P7,P8 and P10. The petitioner's first contention is that the petitioner is not liable for the amount due insofar as it was not his duty to recover the advertisement charges from clients. He heavily relies on Ext.P3 order, in which, according to him, duties and functions of various officers of the Farm Information Bureau W.P.(C)No.37750/08 3 have been specifically detailed. He submits that the collection of advertisement charges is not one of the duties allotted to the Editor-cum-Press Relation Officer whereas the collection of advertisement for 'Kerala Karshakan' and collecting advertisement charges from the agencies have been specifically detailed for Smt. B. Neena, Agricultural Officer. Therefore, the petitioner has no responsibility for collection and therefore, the amount outstanding is not liable to be recovered from the petitioner. The 2nd contention is that all except one of the clients are public sector undertakings and therefore, it is not difficult for the present Editor cum Press Relation Officer to recover the same from the parties. He specifically contends that without taking any steps to recover the said amount from the parties from whom the same is due, the respondents cannot simply fix the liability on the petitioner. Thirdly, the petitioner would contend that insofar as, as evident from Ext.P4 audit query is only pointing out all irregularities and the same cannot be automatically lead to a liability on the Government servant and only after taking a remedial action, the liability can be fixed on anybody. W.P.(C)No.37750/08 4 2. A counter affidavit has been filed by the 1st respondent wherein the stand taken is that even under Ext.P3, the petitioner being the head of office is liable for the entire printing and publishing of 'Kerala Karshakan' which includes collection of advertisement charges as well. It is true that specific duty of collection of advertisement for 'Kerala Karshakan' and collecting advertisement charges from the agencies have been specifically detailed for Smt. B. Neena, Agricultural Officer. But the petitioner cannot escape from the liability insofar as he is in overall control of the entire functions of the Office in question and the petitioner had the duty to see that the officer who has been entrusted the duty to collect advertisement charges performs the duty promptly which he has failed to do is the contention of the respondents. Regarding the 2nd contention, it is submitted that the fact that the defaulting clients are public sector undertakings would not mitigate the liability of the petitioner, insofar as the petitioner has not taken appropriate action in time to recover the amounts from them. With regard to the 3rd contention it is submitted that on audit query, it was found that the petitioner W.P.(C)No.37750/08 5 has not taken appropriate steps to recover the government money and that is why it has been decided to fix the liability on the petitioner. 3. I have considered the rival contentions in detail. In Ext.P3, following are the duties and functions of the petitioner: “ Sri. G.J. Vincent, Editor cum Press Relation Officer 1. Charge of printing and publishing of Kerala Karshakan(fortnightly) 2. To keep liaison with Government Press and other publication units where printing works of Bureau is entrusted. 3. Participating in IMPCC meeting. 4. Custodian of vehicle KRV 7210 5. Attending Department meetings/ conferences.” The following duties and functions have been entrusted to Smt. B. Neena, Agricultural Officer: “Smt. B.Neena, Agrl.Officer 1. Collection and editing of materials for farm guide. 2. Preparing scripts for leaflets, booklets, brochures related to agrl. Topics. 3. To assist Smt. Mini K. Rajan in updating the mailing list of K.K. and enhancing circulation. 4. Collection of advertisement for K.K. and collecting advertisement charges from the Agencies. 5. Production of slide stories on Agriculture/A.H. and allied topics. 6. Any other official work entrusted by PIO.” From the same it is seen that collection of advertisement for Kerala Karshakan and collecting advertisement charges from W.P.(C)No.37750/08 6 the agencies have been specifically detailed as duties and functions of Smt. B.Neena, Agricultural Officer. But, charges of printing and publishing of Kerala Karshakan fortnightly is the responsibility of the petitioner as the head of office namely, Editor-cum-Press Relation Officer. That includes overall supervision and management of the office also. Therefore, it was the specific supervisory duty of the petitioner to see that Smt. B. Neena performs her duties in accordance with Ext.P3. Admittedly, the amounts have not been recovered from the parties. Therefore, simply because the collection of advertisement charges have been specifically entrusted with Smt. B. Neena , the petitioner's responsibility to see that the officers under him recover the amount by taking appropriate steps does not cease and having failed to ensure that the petitioner cannot escape the liability in respect of the amounts outstanding. 4. But, I find considerable merit in the 2nd contention of the petitioner. First of all insofar as the amounts are still due from the parties most of whom are public sector undertakings, the respondents ought to have made a serious W.P.(C)No.37750/08 7 attempt to recover the amount from the parties before deciding to fix the liability on the petitioner or anybodyelse. The counter affidavit does not detail any such attempt on the part of the respondents in that direction. I am of opinion that before fixing the liability on the petitioner, the respondents ought to have taken appropriate steps to recover the amount from the parties concerned by resorting to appropriate legal remedies. Only if they fail to recover it from the parties they can proceed against the officers responsible for failure to collect the same. Without that attempt, it is premature to fix the liability on the petitioner, that too, on him alone. I am of opinion that even in such a case, not only the petitioner, but others,who are also specifically detailed for such duties must also bear the responsibility and liability. The 3rd contention is only a part of the 2nd contention and therefore, it need not be separately dealt with. In view of the above findings, this writ petition is disposed of with the following directions: Further steps to recover the amounts fixed as liability on the petitioner shall be made only after earnest and serious efforts are made by the respondents to recover the W.P.(C)No.37750/08 8 outstanding advertisement charges from the parties concerned including public sector undertakings by resort to appropriate proceedings, including legal proceedings. After those proceedings are over and if the earnest and serious efforts made in that regard does not yield any results, the respondents shall take further proceedings against all persons responsible, after issuing fresh notices to them and fixing the liability after giving all of them opportunity of being heard, accordingly. S. SIRI JAGAN, JUDGE acd W.P.(C)No.37750/08 9 W.P.(C)No.37750/08 10