Indira K.P. v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ``` MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 32087 OF 2011`** ## **`PETITIONER:`** ``` INDIRA K.P. ‘SREELAKSHMY’, CHAKKUNGAL ROAD, PALARIVATTOM, KOCHI-25., ``` ``` NOW RESIDING AT MYTHRI NAGAR,BLOCK B-22, VALYAVILA JUNCTION,THIRUMALA PO, NEAR CSI PUTHUMANA CHURCH,THIRUVANANTHAPURAM. ``` ``` BY ADV SRI.GEORGE POONTHOTTAM ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE (NS) DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001. 2THE DISTRICT COLLECTOR, OFFICE OF THE DISTRICT COLLECTORATE, COLLECTORATE, ERNAKULAM, 682 030. 3NATIONAL SAVINGS ORGANISATION 4TH FLOOR,SEMINARY HILLS, NAGPUR 440006, REPRESENTED BY ITS JOINT NATIONAL SAVINGS COMMISSIONER. 4THE DIRECTORATE OF NATIONAL SAVINGS CORPORATION GOLDEN JUBILEE BUILDING, OVER BRIDGE, THIRUVANANTHAPURAM 695 001. 5THE DEPUTY DIRECTOR NATIONAL SAVINGS DEPARTMENT, COLLECTORATE, KAKKANAD PO,, KOCHI 682 030. BY ADVS. SHRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.S.MANU – DSGI SRI.JUSTIN JACOB - GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 32087 OF 2011 ``` ``` 2 ``` ## **JUDGMENT** Orders of the District Collector, Ernakulam, Ext.P10 dated 02.06.2010, Ext.P11 dated 14.07.2010 and Ex.P12 dated 24.10.2011 asking for remittance of an amount of Rs.5,20,823/(Rupees Five Lakhs Twenty Thousand Eight Hundred and Twenty Three only) with interest, fixing the liability upon the petitioner of not having submitted the correct information while claiming the commission for collecting money for issuance of National Saving Certificate, are under challenge in this writ petition. 2. Petitioner in the year 1992 was appointed as an Agent under the Standardised Agency System (‘SAS’ for Short) and Mahila Pradhan Agency System operative under a National Saving Agency which was renewed from time to time. Under the said scheme, roll of the Agents was to canvass the scheme among the general public, obtain deposits from the public and deposit the same in the post office concerned and lieu thereof, are given a commission of 1% on the amount deposited. At the end of every year, an amount of Rs.10% is paid to each of the Agents on the ``` WP(C) NO. 32087 OF 2011 ``` ``` 3 ``` amount collected by them during the year as bonus. 3. On 15.12.2007, petitioner was summoned by the 5[th] respondent – Deputy Collector, National Saving Department, Collectorate, Kakkanad, with regard to discussions relating to collections made by her. During the aforementioned discussion, it was brought that the petitioner had committed certain foul-play in claiming the commission and was forced to submit a resignation letter which was submitted on 15.12.2007. Thereafter, vide communication dated 26.12.2007 Ext.P1 withdrew the resignation. Petitioner submitted an explanation dated 04.02.2008 vide Ext.P3 and Ext.P4 narrating the circumstances under which the resignation letter was submitted and also requested the 2[nd] respondent to furnish the copies of the report received against her and rescind the directions issued to the post office for not accepting the deposits. Simultaneously, the 5[th] respondent vide Ext.P4 dated 04.02.2008 was requested to supply the details with regard to such allegations which continued vide Ext.P5 dated 09.02.2008. Vide Ext.P6 it was informed that the hearing would be held on 20.02.2008. It is contended that the recovery to be ``` WP(C) NO. 32087 OF 2011 ``` ``` 4 ``` effected was for the period 2002-03 to 2006-07. Petitioner personally verified and found that she was not in remiss in submitting the documents or claiming commission. But, in order to ascertain the truth, submitted an application under the Right to Information Act on 21.02.2008 Ext.P7 and also details of the cheque vide request Ext.P8 dated 06.07.2010 as the respondent during all these period did not respond or provide any information. The audit report was issued on 28.07.2010, vide Ext.P9, but before it was supplied, the District Collector – 2[nd] respondent passed the impugned order directing to remit Rs.5,20,823/- ie., Rs.2,91,500/- as commission and rest of the amount being interest. The payment of the commission of Rs.2,15,910/is stated to have been withheld. The aforementioned order was reiterated by Exts.P11 and P12 calling upon the petitioner to deposit the amount failing which recovery under the Kerala Revenue Recovery Act, 1968, would be initiated. 3. Senior Advocate Sri.George Poonthottam assisted by Sri.Navaneeth Pai, learned counsel appearing on behalf of the petitioner submitted that the said proceedings are not sustainable ``` WP(C) NO. 32087 OF 2011 ``` ``` 5 ``` in the eyes of law for no opportunity of hearing has been granted to confront the respondents with regard to the alleged misappropriation against the petitioner. As per the audit report, receipt not only mentions numerically the amount but also the cheque number. Both the documents were required to be confronted to the petitioner to justify the demand. No enquiry has been held impartially for sustaining the demand for withholding of the commission. Principles of audi alteram partem have been violated under the garb of holding the proceedings, but the said proceedings are/were vitiated of not complied with the confrontation of any documents. In the absence of the same, impugned orders are liable to be set aside. Even otherwise recovery proceedings could not have been initiated under the provisions of the Act in the absence of any notification issued under Section 71 of the Act. 4. On the other hand, Sri.Justin Jacob, learned Government Pleader appearing on behalf of the respondents submitted that the information, sought, was already supplied on 01.03.2008 and 09.05.2008 which ex facie proved the allegations ``` WP(C) NO. 32087 OF 2011 ``` ``` 6 ``` against the petitioner and therefore the present petition is just a ploy to overcome the liability. 5[th] respondent conducted the enquiry and found that 110 transactions were doubtful. Post Master also furnished a reply and report dated 25.01.2008 and after necessary verification, it was found that amount was due against the petitioner. The enquiry revealed fraud on the part of the petitioner which necessitated to summon her to appear before the 2[nd] respondent and explain certain matters. The enquiry conducted proved beyond doubt that the petitioner cheated the Government by making bogus claims of allowances and bonus. 5. I have heard the learned counsel for the parties and appraised the paper book. 6. The contents of the letter referred to above reveal that petitioner was confronted with the allegation of misappropriation of the amount for claiming the commission without submitting the actual documents or tampering. Petitioner throughout had been requesting for supply of the documents, inquiry report, etc. ie., genesis for initiating such steps like the report of the Post Master, concerned post office and other material. The said exercise ``` WP(C) NO. 32087 OF 2011 ``` ``` 7 ``` continued from 2008 to 2010 and ultimately, vide impugned order Ext.P11 dated 14.07.2010 recovery was ordered whereas the copy of the audited report was supplied, post the aforementioned order on 28.07.2010 Ext.P9. The audited report though reflected certain irregularities but that cannot be found as a foundation or sermon for holding the petitioner responsible until and unless petitioner is put with the documents with regard to the alleged misappropriation and given chance to rebut the same in accordance with law. In other words, an impartial and independent enquiry was required to be conducted. The enquiry so-called conducted by the 5[th] respondent was unilateral at the back of the petitioner and summoned the petitioner only for providing information but the documents do not reveal that at any point of time the documents were confronted or the copy of the enquiry report was supplied. All these factors lead to irresistible conclusion that principles of audi alteram partem have been flouted with impunity. Violation of audi alteram partem have already discussed in extenso by the Constitution Bench of the Supreme Court in _**S.N.Mukherjee**_ v. _**Union of India**_ in 1990 AIR 1984 wherein it ``` WP(C) NO. 32087 OF 2011 ``` ``` 8 ``` has been categorically held that the Revisional or appellate authorities/quasi-judicial authorities are required, by giving reasons, to follow the principles of audi alteram partem. For the reason aforementioned, Exts.P10, P11 and P12 are quashed. I cannot remain oblivious of the fact that petitioner now has attained the age of 71 years and at the time when the action was taken, was 59 years. Keeping that in mind, to defray the sufferance, I direct that in case the respondents deem it appropriate to justify the demand, are at liberty to hold the enquiry in accordance with law and the observations recorded herein and complete the same within a period of six months and in case it is found that the petitioner is not liable to pay, the amount withheld would be reimbursed forthwith. ## **Sd/-** **AMIT RAWAL** **JUDGE** nak ``` 9 ``` ## **`WP(C) NO. 32087 OF 2011`** ## **`APPENDIX OF WP(C) 32087/2011`** ``` PETITIONER EXHIBITS ``` - `EXHIBIT P1 TRUE COPY OF THE COMMUNICATION DATED 26/12/2007 GIVEN BY THE PETITIONER.` ``` EXHIBIT P2TRUE COPY OF THE COMMUNICATION NO. N1- 91/07/NS DATED 05/10/2007. ``` - `EXHIBIT P3 TRUE COPY OF THE EXPLANATION DATED 04/02/2008 GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT.` - `EXHIBIT P4 TRUE COPY OF THE REQUEST DATED 04/02/2008 GIVEN TO THE 5TH RESPONDENT.` - `EXHIBIT P5 TRUE COPY OF THE REQUEST DATED 09/02/2008 GIVEN TO THE 2ND RESPONDENT.` - `EXHIBIT P6 TRUE COPY OF THE COMMUNICATION DATED 13/02/2008 GIVEN TO THE 2ND RESPONDENT.` - `EXHIBIT P7 TRUE COPY OF THE REQUEST DATED 21/02/2008 GIVEN TO THE 2ND RESPONDENT.` - `EXHIBIT P8 TRUE COPY OF THE REQUEST DATED 06/07/2010 GIVEN BY THE PETITIONER.` - `EXHIBIT P9 TRUE COPY OF THE COMMUNICATION NO. 2359/NSD-B2/10/FIN DATED 28/07/2010.` ``` EXHIBIT P10TRUE COPY OF THE ORDER NO. N1-106/07/NS DATED 02/06/2010. ``` - `EXHIBIT P11 TRUE COPY OF THE ORDER NO. N1-106/07/NSDEKM DATED 14/07/2010.` ``` EXHIBIT P12TRUE COPY OF THE DEMAND NOTICE NO. NS1- 106-07/NSD-EKM DATED 24/10/2011. ``` ``` 10 ``` ## **`WP(C) NO. 32087 OF 2011`** ``` EXHIBIT P13TRUE COPY OF ONE INTERPOLATED CERTIFICATE. ``` ``` EXHIBIT P14TRUE COPY OF THE COMMUNICATION NO.106/07/NSD-EKM DATED 24/01/2012 AS ISSUED BY THE 2ND RESPONDENT. ```