K.M. Unnikrishnan & Others v Travancore Devaswom Board & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 16TH DAY OF JULY 2013/25TH ASHADHA, 1935** ## **WP(C).No. 17050 of 2012 (E)** **----------------------------** **PETITIONER(S): --------------------------** **K.M. UNNIKRISHNAN, ANASWARYA, KOTHAKKURUSSI, PONMANA. P.O., OTTAPPALAM, PALAKKAD DISTRICT.** **BY ADV. SRI.N.ANILKUMAR.** ## **RESPONDENT(S):** **-------------------------** **1. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM-695 003.** **2. DEVASWOM COMMISSIONER, TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 003.** **3. CHIEF VIGILANCE & SECURITY OFFICER,** - **(SUPERINTENDENT OF POLICE) TRAVANCORE DEVASWOM BOARD THIRUVANANTHAPURAM-695 003.** ## *** ADDL. R4 IMPLEADED** **4. THE DISTRICT COLLECTOR, PALGHAT DISTRICT.** - **ADDL. R4 IS IMPLEADED AS PER ORDER DATED 08/07/2013 IN I.A. NO.9214/2013.** **R1 TO R3 BY ADV. SRI.V. KRISHNA MENON, SC, TDB. ADDL. R4 BY GOVT. PLEADER MR.R. PADMARAJ.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-07-2013, ALONG WITH W.P.(C) NO. 18147 OF 2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** ## **WP(C).No. 17050 of 2012 (E)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT-P1 TRUE COPY OF THE SHOW CAUSE NOTICE NO.ROC.197/10/EST. DATED 28.04.2011 ISSUED BY DEVASWOM COMMISSIONER.** **EXT-P2 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE DEVASWOM COMMISSIONER DATED 05.05.2011.** - **EXT-P3 TRUE COPY OF THE NOTICE NO.ROC.197/10/ESTT. DATED 09.05.2012 ISSUED BY THE DEVASWOM COMMISSIONER TO THE PETITIONER.** **EXT-P4 TRUE COPY OF THE EXPLANATION DATED 14.05.2012 SUBMITTED BY THE PETITIONER BEFORE THE DEVASWOM COMMISSIONER.** - **EXT-P5 TRUE COPY OF THE ORDER NO.ROC.197/11/ESTT. DATED 12.06.2012 ISSUED BY THE DEVASWOM COMMISSIONER.** - **EXT-P6 TRUE COPY OF THE ENQUIRY REPORT SUBMITTED BY 3RD RESPONDENT DBAR NO.3/2006 BEFORE THIS HONOURABLE COURT.** - **EXT-P7 TRUE COPY OF THE NOTICE DATED 29/06/2013 NO.B3-2012/67610/9 ISSUED BY THE DISTRICT COLLECTOR.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE.** **rs.** ## **T.R.RAMACHANDRAN NAIR & A.V. RAMAKRISHNA PILLAI, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C)Nos.17050, 17121, 18147 & 18258 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 16th DAY OF JULY, 2013** ## **JUDGMENT** ## Ramachandran Nair, J. These writ petitions have raised a common issue, with regard to the fixing of liability against the petitioners who have retired from the service of the Travancore Devaswom Board (for short 'the Board'). All the petitioners were working under the Board during the Mandalam Makaravilakku season 1181 M.E. (corresponding to 2005-2006) in different capacities. The petitioner in W.P.(C) No.17050/2012 was on duty as Appam Distribution Special Officer, the petitioner in W.P.(C) No.17121/2012, at the relevant time, was the Executive Officer of Sabarimala Devaswom, the petitioner in W.P.(C) No.18147/2012 was working as Appam Special Officer and the petitioner in W.P.(C) No.18258/2012 was functioning as Store Superintendent as well as Junior Superintendent in the office of the Executive Officer, Sabarimala. 2. The Local Fund Audit, Travancore Devaswom Board Unit submitted a report produced as Ext.P2 in W.P.(C) No.17121/2012 WPC Nos.17050, 17121, 18147 & 18258 of 2012 -2- (Ext.R1(a) ) along with the counter affidavit of the Board). Mainly it was a case where the Local Fund Audit reported that they have noticed some corrections and alteration of entries in the main store ledger, in respect of which no satisfactory explanation had been offered by the Superintendent of main store. We are referring the exhibits as produced in W.P.(C) NO.17121/2012. 3. This Court, considered the report in D.B.A.R.No.3/2006 and by an order dated 18.1.2008 referred the report to the learned Ombudsman appointed for Travancore and Cochin Devaswom Boards for consideration. The learned Ombudsman, after detailed consideration of the matter, filed a report before this Court as per Ext.P3. It was filed as an interim report on the Audit of Accounts of Ulsavam and Medavishu festival at Sabarimala, Pampa and Erumeli (Report No.65). 4. During the course of the drawing of the report the learned Ombudsman was of the view that the original of the Appam Preparation Register has not been produced for verification and therefore it is a fit case where the matter has to be investigated by the Superintendent of Police, WPC Nos.17050, 17121, 18147 & 18258 of 2012 -3- Vigilance Wing under the Travancore Devaswom Board. This was recommended, so that an attempt can be made to find out the original of the Appam Preparation Register as well as to find out whether there is any malpractice involved in correcting the registers. 5. We will come to the details of the report at a later stage of the judgment. Thereafter, the Bench dealing with DBAR No.3/2006 passed an order dated 25.9.2008 directing the Chief Vigilance Officer, Travancore Devaswom Board to conduct an enquiry and submit a report within four months from the said date. The report was placed before this Court in a sealed cover. That was also recorded by an order. The matter was considered by this Court later and by order dated 23.12.2009 in DBAR No.3/2006, directed to send the report to the learned Ombudsman to make necessary suggestions. After the said process was over, the learned Ombudsman submitted Ext.P5 report , viz. Report No.18/2010 before this Court. The operative portion of the report shows that the learned Ombudsman was of the view that a formal notice and enquiry may be required under Rule 3 Part III K.S.R. against the officers before they are WPC Nos.17050, 17121, 18147 & 18258 of 2012 -4- found liable and amounts realised from their pensionary benefits and other assets. The report of the Superintendent of Police (Vigilance) was returned along with the sealed cover. By another order dated 21.1.2010 in DBAR No.3/2006 the Division Bench directed that the Chief Commissioner shall order a formal enquiry to be conducted in accordance with the service rules against the officers and proceed in accordance with law and submit an action taken report. The matter was directed to be posted after a month. The final order passed in DBAR No.3/2006 dated 25.4.2011 has been produced as Ext.P7. In para 5 of the said order the Division Bench took the view that “the issuance of show cause notice for disciplinary proceedings and any further action for recovery of money including by invoking relevant provisions of the statute laws including Public Accountant Act could be applied in accordance with law. The Board shall take a final action in this regard in terms of the statutory provision.” There was a further direction that a report will be filed before the learned Ombudsman within a period of six months. In para 6, it was directed that “if there is no enquiry officer on regular basis in the Board, arrangement WPC Nos.17050, 17121, 18147 & 18258 of 2012 -5- shall be forthwith made to provide enquiry officer on regular basis as against the post available, so that enquiry proceedings do not get tied down for too long.” 6. The proceedings continued thereafter, after the Board by Ext.R1 (c) order produced in W.P.(C) No.17121/2012 ordered that “disciplinary action shall be taken against the officials responsible, viz. the four petitioners herein and authorised the Devaswom Commissioner to issue show cause notice to the officials concerned in consultation with the Law Officer of the Board and submit report to the Board within three months. 7. The said proceedings will show that by the time the proceedings were drawn, all the officers have retired from service. The remarks of the Law Officer are produced as Ext.R1(e). Therein, he was of opinion that the Board is at liberty to take steps against the retired employees for realisation of the amount by invoking the provisions under the Kerala Public Accountants Act and that too after fixing the liability of each of them and giving opportunity of being heard. 8. The petitioners were served with show cause notices thereafter. In WPC Nos.17050, 17121, 18147 & 18258 of 2012 -6- W.P.(C) No.17121/2012 the copy of the notice has been produced as Ext.P8. Since in respect of the four petitioners there is some difference with regard to the contends of the show cause notices, we will refer to the contents of the show cause notices also. 9. In Ext.P8 show cause notice issued to the petitioner in W.P.(C) No.17121/2012 who was working as Executive Officer, the main allegation is that there is failure to perform the duties and supervisory lapses on his part and therefore the Board is proposing to recover the loss suffered by the Board from the petitioner. He filed an explanation as per Ext.P9 and again another show cause notice was issued as per Ext.P10. Therein, mention is made about the report of the Vigilance Officer who has quantified the total loss as Rs.21,73,000/-. The notice proceeds to state that the loss sustained by the Board is proposed to be realised from the four retired persons equally. Therefore, the petitioner is asked to show cause why an amount of Rs.5,43,250/- should not be recovered from him. He submitted explanation as Ext.P11, objecting the above proposal and the copy of the final order passed by the Devaswom Commissioner has been produced as Ext.P12. WPC Nos.17050, 17121, 18147 & 18258 of 2012 -7- 10. In W.P.(C) No.17050/2012 the show cause notice is produced as Ext.P1. The notice proceeds to state that since he was the Preparation Special Officer, there is a failure of duty to check whether irregularities are happening and therefore due to the negligence to perform the said duty loss has been caused to the department and they have decided to impose liability against the petitioner. The petitioner submitted Ext.P2 Explanation and thereafter by Ext.P3 he has been directed to show cause why a liability of Rs.5,43,250/- should not be imposed against him. Ext.P4 is the further reply submitted by the petitioner and the final proceedings have been produced as Ext.P5. This is similar to the proceedings issued against the petitioner in W.P.(C) No.17121/2012, in that reliance is placed for quantifying the amount on the report of the Vigilance Officer. 11. As far as W.P.(C) No.18147/2012 is concerned, the copy of the show cause notice has been produced as Ext.P7. Against the petitioner in the said writ petition, the allegation is that he got released materials from main store for preparation of 130 koottu of appam and the same has been sold without accounting and thus he has caused loss to the department. WPC Nos.17050, 17121, 18147 & 18258 of 2012 -8- Mention is made also about the alleged correction in various registers. 12. As far as W.P.(C) No.18258/2012 is concerned, copy of the show cause notice has been produced as Ext.P5. As against the petitioner herein, the allegation is that he has made certain corrections in the registers after receiving the materials for preparation of 130 koottu of appam and sold it illegally and thus has caused loss to the department. It is also stated that he is liable for sale of more quantity of appam than what can be prepared and that along with the Preparation Special Officer, he has committed misappropriation and thus caused monetary loss to the department. Therein, the final order is produced as Ext.P9 which is similar to the proceedings produced in the other three cases. For convenience, we will refer to the documents produced in W.P.(C) No.17121/2012. 13. We heard learned Senior Counsel Shri S. Sreekumar, learned counsel Shri S. Subhash Chand, Shri K. Sasikumar and Shri N. Anilkumar, appearing for the petitioners, Shri V. Krishna Menon, learned Standing Counsel appearing for the Board and learned Government Pleader Shri R. Padmaraj. WPC Nos.17050, 17121, 18147 & 18258 of 2012 -9- 14. Learned Senior Counsel Shri S. Sreekumar submitted that as far as his client is concerned, he was functioning as Executive Officer during the relevant period and there is no allegation of any direct involvement of the petitioner in respect of any of the irregularities either in relation to the release of the articles, or in not properly accounting the alleged total quantity of appam or in the matter of sale through the distribution counters. Ext.P1 is the relevant page of the Devaswom Manuel fixing the duties and responsibilities of the Executive Officer, Sabarimala. According to the learned counsel, item 8 under the heading “Asst. Executive Officer, Sabarimala”, will show that the duty to supervise the functioning of the main store and exercise physical verification of the articles in the main store, is vested on the said officer and not on the petitioner. Items 1 to 31 therein delineates various duties and functions of the Executive Officer, Sabarimala. It is submitted that even if all the allegations are taken together, there cannot be any finding as against the petitioner. Learned Senior Counsel also submitted that the report of the Chief Vigilance Officer produced as Ext.P4, even though in the operative portion quantifies the WPC Nos.17050, 17121, 18147 & 18258 of 2012 -10- liability towards the loss caused to the department as more than Rs.21 lakhs, the very basis under which the report is prepared, cannot be supported. In this context, it was submitted that what was directed by this Court in DBAR No.3/2006 is to cause a vigilance enquiry for finding out the missing registers. In the report, various aspects have been pointed out and then a fancy amount has been fixed as alleged loss. It is submitted that the calculation of the amount is based on surmises and conjectures, in that a presumptive loss has been calculated by taking the opinion that even though for one koottu of appam the specified quantity is 864 packets, herein more packets might have been prepared and they have sold them through counters. In that process the Vigilance Officer has observed that in a later year, viz. 1183 ME it was noticed that excess quantity of appam was being produced and that was incorporated in the report and accordingly a final amount has been arrived at. It is submitted that the Commissioner, while drawing up the proceedings under challenge, has verbatim reproduced the said amount as the total liability and there is no justification for the same. Learned Senior Counsel further elaborated that it is a case WPC Nos.17050, 17121, 18147 & 18258 of 2012 -11- where none of the petitioners could be proceeded with by the Board for the alleged liability. Before retirement, no proceedings have been initiated against them for the alleged misconduct. Even though learned Ombudsman in the report, Ext.P5 has suggested that enquiry can be ordered under Rule 3 Part III K.S.R. against the officers and the liability can be fixed to be realised from their pensionary benefits, that mode was not resorted to. As all of them have retired from service, and unless there is a proper fixation of liability by any competent proceedings, there cannot be any order for effecting recovery by invoking the provisions under the Public Accountants Act. Learned Senior Counsel further submitted by relying upon the principles stated by this Court in **Paramu Pillai v. District Collector** (1989 (1) KLT 224), that this is not a case where the provisions under the Public Accountants Act could be invoked against the parties concerned. Thus, it is submitted that the entire proceedings will have to be quashed by this Court and the fixation of liability will have to be found as arbitrary and unreasonable, with a further direction to release the retirement benefits to the parties concerned. WPC Nos.17050, 17121, 18147 & 18258 of 2012 **==> picture [21 x 9] intentionally omitted <==** 15. These arguments were supported by Shri Subhash Chand, learned counsel appearing for the petitioner in W.P.(C) No.18258/2012 who submitted that the only mode of recovery, as against a retired person who is a pensioner, being under Part III Rule 3 K.S.R. and not being under Note 2 and Ruling No.3 to Rule 3 Part III and that mode was not resorted to and now the period provided under the said rule (4 years) is already over, there is no question of adjusting the liability as against the DCRG. It is submitted that even though learned Ombudsman has stressed the said specified mode under the said rule, it was never resorted to and the entire proceedings have been transmuted to one under the Public Accountants Act without any justification. He also supported the arguments raised by Shri S. Sreekumar, learned Senior Counsel with regard to the merits of the matter also. According to him, the documents produced in the said writ petition, viz. W.P.(C) NO.18258/2012 as Ext.P6 series will show that actually 130 koottu of appam was never utlised for preparation of appam and that some of the indents were cancelled. Therefore, it is a case where the very basis of the allegation that 130 koottu of appam was prepared, is not correct and all the WPC Nos.17050, 17121, 18147 & 18258 of 2012 -13- materials were accounted properly in the store and his client is not liable. Shri Subhash Chand also submitted that the report of the Vigilance Officer could not have been relied upon for fixing the liability. It is submitted that before proceeding to recover any amount from the pensioner, it is axiomatic that the liability should be quantified with notice and after affording an opportunity to explain and to adduce evidence. Since the said step was not resorted to here and the Commissioner has simply adopted the report of the Vigilance Officer, the fixation of liability as against the said petitioner is not correct. 16. The above arguments have been supported by Shri N. Anilkumar, learned counsel for the petitioner in W.P.(C) No.17050/2012. According to him, the show cause notice as against his client itself is on a wrong footing. Actually, the petitioner therein was designated as Distribution Special Officer, but the show cause notice was issued stating that he was the Preparation Special Officer. It is submitted that as far as the duties in the distribution counters are concerned, all the packets of appam which are properly entrusted to the counters and sold away, were being properly WPC Nos.17050, 17121, 18147 & 18258 of 2012 -14- accounted and remittances have been made by proper receipts which have been duly checked by the concurrent auditors and they have certified the same as correct also. It is submitted that as far as his client is concerned, he was only supervising the accounting procedures and he was nowhere connected with either release of the articles or preparation of appam or short accounting of the same, etc. He was never involved directly in the preparation and selling of appam. It is therefore submitted that he had no role to play in the matter and the assumption made against him as well as fixation of liability, that too based on the report of the Vigilance Officer, is not correct. 17. He has got a further case that before the learned Ombudsman or before the vigilance Officer he was never called upon to give any evidence or to explain any matter and therefore he was completely in dark about the proceedings and was also not served with the report of the Vigilance Officer. 18. As far as W.P.(C) No.18147/2012 is concerned, the petitioner was working as Appam Special Officer. According to Shri K. Sasikumar, WPC Nos.17050, 17121, 18147 & 18258 of 2012 -15- learned counsel for the petitioner herein, it is not a case where the materials have been used for preparation of 130 koottu of appam. He relied upon the documents produced in W.P.(C) No.18258/2012 and explained that after release of the materials, some of the indents have been cancelled, as the season was reaching the final stage on the crucial dates, viz. 15.1.2006 and 16.1.2006. Only three days remained for the festival to complete and by 19[th] , all the activities will come to a standstill and the Temple will be closed on 20[th] . Learned counsel submitted that the very basis of the allegation that so much quantity of appam was sold during the period in question, cannot be believed at all. There is no scope for selling of that much quantity of appam and therefore according to him, the report of the Audit which is the basis of the action that 130 koottu of appam was prepared and was ready for sale, is not correct and they have not properly conducted physical verification either of the stock of materials or the stock of appam. Therefore, it is submitted that none of the allegations against his client can be supported. 19. Learned Standing Counsel for the Board, Shri V. Krishna Menon WPC Nos.17050, 17121, 18147 & 18258 of 2012 -16- submitted that even in the first stage, i.e. before the learned Ombudsman all the parties, except the petitioner in W.P. (C) No.17050/2012 were asked to appear and an opportunity was given to them to explain. It is submitted that the entires issues were examined by the learned Ombudsman threadbare and the Audit was asked to submit further report and the Board officials were also directed to produce the crucial registers and after finding that one of the registers, viz. appam preparation register was not forthcoming, a recommendation was made to this Court to conduct a vigilance investigation through the Superintendent of Police. It is submitted that the subsequent report submitted by the learned Ombudsman, viz. Ext.P5 in W.P. (C) No.17121/2012 contains a detailed consideration of the various aspects and finally it was found that the petitioners are prima facie liable and then it was observed that proceedings under Part III Rule 3 K.S.R. could be initiated. But by that time all the petitioners had retired from service and therefore the proceedings have been transmuted to one under the Public Accountants Act, and the Board authorised the Commissioner as per Ext.R1(c) to conduct an enquiry. WPC Nos.17050, 17121, 18147 & 18258 of 2012 -17- 20. With regard to the argument that the report of the Vigilance Officer could not have been the basis of the action, learned Standing Counsel submitted that any material which comes before the employer could be utilised for fixing the liability. Either with regard to the proceedings under Part III Rule 3 as well as Note 2 to Rule 3 Part III of K.S.R. or with regard to the finalisation of claims under the Public Accountants Act, it is not the law that there should be a separate and elaborate enquiry or disciplinary enquiry to support the recovery proceedings. It is therefore submitted that as the Vigilance Officer has collected all the materials by getting details from the Audit, the staff involved as well as other employees of the Board including the petitioners, there is no lacuna in the proceedings. Learned Standing Counsel also submitted that the final conclusion arrived at by the Chief Vigilane Officer is supportable, since it is found out from experience that clandestine methods are being adopted by the persons on duty in appam and vazhipadu counters for selling unaccounted quantities without accounting the income, thus causing loss. Therefore, it is submitted that the proceedings are not WPC Nos.17050, 17121, 18147 & 18258 of 2012 -18- illegal or arbitrary. 21. A resume of the entire procedures taken will show that initially the matter reached this Court by way of audit report. The report of the Audit produced as Ext.P2 in W.P.(C) No.17121/2012 will show that they had completed the audit before the close of Mandalam Makaravilakku season 2006-2007 and during the beginning of the next festival, viz. Vishu. After noticing the alterations in the relevant registers and after finding that the reply given by the Store Superintendent, viz. the petitioner in W.P.(C) No.18258/2012 was not acceptable, the matter was brought to the notice of this Court. It is thereafter this Court passed the relevant orders and the learned Ombudsman has considered the matter on two occasions. 22. As far as the final proceedings are concerned, a reading of the same will show that (it is similarly worded in respect of all the petitioners), the assessment of loss is based on the report of the Superintendent of Police (Vigilance) and the total loss is stated as Rs.21,73,000/-. The same has been directed to be shared equally by all the petitioners. In the operative portion, the Executive Officer has been authorised to initiate action under the Public WPC Nos.17050, 17121, 18147 & 18258 of 2012 -19- Accountants Act to realise the amounts also. 23. Therefore, plainly it is not a case where any proceedings have been drawn up under Rule 3 Part III K.S.R.. The liability has not been sought to be recovered from the DCRG also. Therefore, we need not go into the question whether at the stage of issuance of the proceedings, the petitioners could be proceeded against under Rule 3 Part III K.S.R. and Note 2 to Rule 3. Various judgments of this Court have been relied upon to contend that no proceedings could have been taken under the said rules also. ( **Pappachan v. State of Kerala** (2008 (4) KLT 676), **Parameswaran v. State of Kerala** (2009 (4) KLT 173) and other decisions). 24. The main issue is whether the proceedings could be termed as arbitrary for lack of a properly constituted enquiry and for failure to quantify the loss after giving opportunity to all the parties to submit their objections, examine witnesses and to adduce evidence. We find from the show cause notices issued in respect of the petitioners and from the impugned proceedings issued by the Devaswom Commissioner that the material relied upon is the report of the Chief Vigilance Officer. WPC Nos.17050, 17121, 18147 & 18258 of 2012 -20- 25. Since heavy criticism has been levelled on the said report and with regard to the finalisation of the liability as Rs.21,73,000/-, we will straight away consider the said contention. In the report of the Chief Vigilance Officer, viz. Ext.P4 in W.P.(C) No.17121/2012, there is a paragraph at internal page 7, viz. page 30 of the paper book wherein the basis of the assessment is explained. It is stated that as per the standard fixed, for one koottu ingredients of appam, product of appam is 864 packets. In his opinion, experience has shown that it would get a minimum of 900 packets of appam per koottu. Further, if the size of appam is reduced, there will be hike in the number of packets. Therefore, the presumption drawn is that there was no practice of accounting the actual number of packets of appam obtained from the entire koottu utilised at a time. That this aspect was verified in the succeeding year, viz. 1183 ME festival, is then mentioned. After noticing the same in the year 1184, the Board reviewed the entire thing and ordered to reduce the quantity of jaggery per koottu from the then existed 40 kgs. to 35 kgs. from that year onwards. Finally, it is concluded as follows: WPC Nos.17050, 17121, 18147 & 18258 of 2012 -21- “Though there is no evidence on record for the receipt of appam in excess of standard fixed during the period in question, it can safely be concluded from the findings in the year 1183 ME regarding the excess quantity of appam obtained that at least that much excess packets of appam was obtained during this period also. So also, there is no evidence regarding the nature of disposal of the unaccounted appam. But it has been revealed in the confidential enquiry that such excess quantity of appam are sold unaccounted through the distribution counters and also at times given free of cost to their favoured persons.” 26. We have already observed that the above finding has been taken as the basis of fixing the total amount at Rs.21,73,000/-. We find that the learned Senior Counsel appearing for the petitioner in W.P.(C) No.17121/2012 and other learned counsel appearing for the petitioners are right in submitting that such a presumption could not have been drawn and therefore the quantification of the total liability cannot be justified. We are of the view that the basis of the said conclusion being a review by the Board in the succeeding years and there was nothing in the said order for fixing the standard, viz. 864 packets of appam from one koottu, for either assessing the income or for other purposes for the year 1181 M.E., that WPC Nos.17050, 17121, 18147 & 18258 of 2012 -22- could not have gone against the petitioners. What was actually done by the Chief Vigilance Officer (even though he appears to have obtained information otherwise) is acceptance of the said standard for concluding into a finding at any rate, for fixing the liability against the petitioners on that score. He has also stated that there is no evidence that of receipt of excess quantity in that year. There is no evidence regarding the nature of disposal of unaccounted appam. Whether it is by way of quantifying the cost of materials or on the basis that the normal quantity of appam have been prepared and sold from the materials supplied that the liability has been arrived at, is not clear according to learned counsel for the petitioners. According to us, there should be a proper attempt to quantify the monetary loss by assessing various materials and after entering a finding that there is a lapse leading to causing loss to the Devaswom Board or real misappropriation of amounts by various parties concerned. It cannot be a case of speculation, especially when monetary liability is fixed. Therefore, the said portion of the report cannot be supported and we hold so. 27. This will necessarily result in setting aside the proceedings from WPC Nos.17050, 17121, 18147 & 18258 of 2012 -23- the stage of issuance of show cause notice, as the said quantification in the report of Vigilance, has been relied upon by the Commissioner to fix liability against the petitioners. 28. Arguments have been addressed on the scope of the Public Accountants Act, especially Sections 3 and 4. It is submitted that the Act only prescribes a mode of recovery. As we have already noticed, the argument of the learned Senior Counsel Shri S. Sreekumar is that only an employee coming within the definition of 'Public Accountant' under Section 2(b) of the said Act, where he has been entrusted with securities for money as well as documents or other property, can be roped in by way of proceedings under Public Accountants Act. Herein, learned Standing Counsel for the Board, Shri V. Krishna Menon submitted that the materials supplied and the appam prepared will fit in within the meaning of the word 'property' and therefore there is no case for the petitioners on that score. 29. As far as fixation of liability is concerned, it is well settled that before quantifying any liability against an employee or a pensioner and before resorting to the mode of recovery, the affected party should be WPC Nos.17050, 17121, 18147 & 18258 of 2012 -24- properly heard. As we have already noticed, herein the allegation in the show cause notices individually against all the four petitioners differ. Each one of the petitioners is roped in to form a common basis, but actually they were acting in different capacities. In the light of the above, the uniform proceedings drawn and liability fixed, cannot support the action. There should be an enquiry, especially in the light of the directions issued by this Court in DBAR No.3/2006 to find out whether each of them or any of them are responsible either individually or collectively for the alleged omissions and commissions and if so, what should be the liability for which they are answerable, for invoking the provisions under the Public Accountants Act. (In circumstances where the Act could be made applicable, such quantification is required) This is so, in the light of the fact that the mode of recovery under the Act will be by way of a claim preferred by the Devaswom with the District Collector. Herein, the petitioners are sought to be made answerable for the loss without giving an opportunity to explain in an enquiry into the allegations and without drawing competent proceedings fixing the liability, if any. Therefore, we are of the view that WPC Nos.17050, 17121, 18147 & 18258 of 2012 -25- there should be a proper enquiry into the matter and it should start from the stage of issuance of proper show cause notice itself, since the show cause notice herein issued, did not reveal the part played by each of them and the basis of the allegations against them and also the details of the materials relied upon against them. Since for an action for fixing liability there should be proper foundation, it should start from the stage of issuance of show cause notice. 30. There is a controversy whether the vigilance report should be the sole basis of the action and the learned Standing Counsel for the Board vehemently submitted that the same can be the basis of the action. Learned Senior Counsel appearing for the petitioner in W.P.(C) NO.17121/2012 and learned counsel appearing for the other petitioners submitted that the said report cannot form the basis of the action. As far as this aspect is concerned, we are of the view that the report of the Chief Vigilance Officer, along the materials, if any, which may have been utilised for the preparation of the report, the report of the audit or any other documents, registers, etc. can form the basis of the action. All the petitioners will be given WPC Nos.17050, 17121, 18147 & 18258 of 2012 -26- opportunity to peruse the documents and examine the same, to submit their explanation, and to adduce evidence in support of their case. If they want to cross-examine any of the officers concerned including the Vigilance Officer or the auditor involved, that opportunity can also be granted. 31. Therefore, we allow the writ petitions and quash the impugned proceedings. There will be a direction to the Commissioner to initiate fresh proceedings in the light of the findings rendered above. 32. As far as the petitioners in W.P.(C) No.s17121/2012, 18147/2012 and 18258/2012 are concerned, the DCRG and other retirement benefits have not been released. Since the proceedings may take a considerably long time and since they have retired from service, learned Senior Counsel appearing for the petitioner in W.P.(C) No.17121/2012 and other learned counsel prayed that the Board may be directed to release the DCRG and other retirement benefits to the petitioners, except the petitioner in W.P.(C) No.17050/2012 who has already received the same, as otherwise they will be put to undue hardship. 33. Learned Standing Counsel for the Board relied upon the WPC Nos.17050, 17121, 18147 & 18258 of 2012 -27- operative portion of the judgment of this Court in **Pappachan's case** (2008 (4) KLT 676) and submitted that in the said decision this Court did not direct release of the DCRG and left open the remedy of the Government to file a suit within a specified time and it was clarified that even if the amount of DCRG happens to be released to the petitioner pursuant to the direction of this Court, the power of the Government to recover the entire amount by instituting a suit or by other proceedings will not be affected by the same. 34. Having regard to the various aspects, we are of the view that a direction can be issued to the Board to release the DCRG and other benefits due to the petitioners in the three writ petitions, viz. W.P.(C) Nos.17121/2012, 18147/2012 and 18258/2012 but on certain conditions. The respective petitioners will execute a bond to the satisfaction of the Board for release of the various retirement benefits. The Board will be free to fix up appropriate conditions to be incorporated in the bond. In the light of quashing of the impugned orders, we also quash Ext.P7 produced in W.P.(C) No.17050/2012 which is a recovery notice issued by the District Collector. WPC Nos.17050, 17121, 18147 & 18258 of 2012 **==> picture [21 x 9] intentionally omitted <==** 35. The Registry will return the copy of the enquiry report submitted by the Superintendent of Police, Vigilance and Security, Travancore Devaswom Board, to the learned Standing Counsel for the Board for transmitting the same to the Board. The writ petitions are allowed as above. No costs. **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(A.V. RAMAKRISHNA PILLAI, JUDGE)** **kav/**