MFA (Panchayat) No.125 of 2022

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR** **WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 MFA (PANCHAYAT) NO. 125 OF 2022** **OP (LOCAL FUND AUDIT) 139/2018 OF ADDITIONAL DISTRICT COURT- II,** ## **MANJERI** ## **APPELLANT/PETITIONER** K.K.HAMSA AGED 54 YEARS S/O KUNHALIYAMU, VALIYAKUNNU PO, VALANCHERI, MALAPPURAM DISTRICT, PINCODE- 676 552. BY ADVS. P.SAMSUDIN MILAN RACHEL MATHEW LIRA A.B. ## **RESPONDENTS/RESPONDENTS** 1 THE DIRECTOR OF LOCAL FUND AUDIT THIRUVANANTHAPURAM- 695 001. 2 THE DEPUTY DIRECTOR LOCAL FUND AUDIT, MUNICIPAL OFFICE BUILDING, TIRUR P.O, MALAPPURAM DISTRICT, PIN- 676 101. SRI.P.M.SHAMEER - GP SR.GP-SRI.B.UNNIKRISHNA KAIMAL **THIS MFA (PANCHAYAT) HAVING BEEN FINALLY HEARD ON 14.11.2023, THE COURT ON 29.11.2023 DELIVERED THE FOLLOWING:** _MFA(Panchayat) 125 of 2022_ 2 ## **C.R.** ## **C.PRATHEEP KUMAR, J.** -------------------------------------M.F.A.(Panchayat) No.125 of 2022 -----------------------------------Dated : 29[th] November, 2023 ## **JUDGMENT** 1. This is an appeal filed under Section 295(13) of the Kerala Municipality Act,1994 against the order dated 30.07.2022 passed by the Additional District Judge-II, Manjeri in OP (Local Fund Audit) 139 of 2018. 2. The appellant was working as Junior Health Inspector, Grade-I during the period from 26.5.2011 to 12.1.2015 in Tirur Municipality. During the year 2013 – 14, he was in charge of the implementation of a project namely 'Vridhajanaparipalanam', meant for testing eye and prescribing medicines and spectacles for old age citizens. In 2015, he was transferred to Pala Municipality. While so, he received a surcharge notice dated 4.8.2016 issued by the Director of Local Fund Audit, based on the audit report of the Deputy Director, Municipal Audit, Tirur. As per the audit report, while he was in Tirur Municipality he had spent _MFA(Panchayat) 125 of 2022_ 3 a sum of Rs.2,67,100/- without obtaining prior permission from the Government on the aforesaid project. In the notice he was directed to remit Rs.2,67,100/- to Tirur Municipality as loss caused due to excess payment made during the implementation of the above project. He had given a detailed reply on 25.8.2016 to the above notice. The above project was prepared by the Municipal Council and approved by the District Planning Board. Approval of the District Planning Board was obtained by Planning Section of the Municipality through its Secretary. Though it was approved for the year 2011 – 2012, it was not implemented. In 2014, it was undertaken as a spill over project of the year 2013– 2014. According to the appellant, he was only implementing the project as directed by the Secretary of the Municipality. He would also contend that the audit was conducted in his absence and no notice as required under Section 11(1)(b) of the Kerala Local Fund Audit Act, 1994, (In short, KLFA Act) was issued to him. In the impugned order, the District Judge failed to appreciate these aspects. Therefore, the appellant prayed for setting aside the impugned order passed by the Additional District Judge-II, _MFA(Panchayat) 125 of 2022_ 4 Manjeri and to allow the OP (LFA). 3. Now the point that arise for consideration is the following :- i) Whether Ext.A1 surcharge certificate issued against the appellant alone, for implementing the project as authorised by the Municipal Secretary, which was prepared and approved by the Municipal Council and the District Planning Board is sustainable ? 4. Heard both sides. - 5. The Point: The learned Government Pleader, Sri.P.M.Shameer strongly supported the impugned order on the ground that it is the responsibility of the Implementing Officer to get it executed in the lawful manner. The project 'Vridhajanaparipalanam' was not included during the financial year in question and as such, it requires Governmental sanction for implementation. Since the appellant was the person authorised to implement the project, he ought to have ensured that necessary sanction is obtained from the Government. 6. On the other hand, the learned counsel for the appellant would _MFA(Panchayat) 125 of 2022_ 5 argue that the project was prepared and approved by the District Planning Board and the Municipal Council. Therefore it is the duty of the Secretary of the Municipality to ensure that the project has the approval of the Government and hence, the appellant cannot be found fault with for not getting the sanction of the Government. 7. Ext.B3 Government order insists for prior sanction of Government for executing projects not included in it. At the time of arguments, the fact that no prior sanction of the Government was obtained for implementing the project 'Vridhajanaparipalanam' was not disputed. As per Ext.B9 guidelines issued to Local Government Institutions, it is the responsibility of the Officer according sanction to the projects to see that all the formalities required for the same are complied with before according sanction. As per Ext.B9, as far as Municipalities are concerned, the projects prepared by the officials are to be given technical sanction by the superior officer. The appellant was only a Junior Health Inspector and he was entrusted with the duty of implementing the project _MFA(Panchayat) 125 of 2022_ 6 by the Secretary. The project was prepared and approved by the Municipal Council and the District Planning Board. The approval of the District Planning Board was obtained by the Planning section of the Municipality through its Secretary. Thereafter, the implementation alone was entrusted with the appellant. Even then, the appellant alone was found fault with for not obtaining the government sanction. The contention of the appellant that he was not aware of the necessity to get prior sanction of the Government, is to be considered in the above circumstance. 8. At the time of arguments, the learned Government Pleader would fairly concede that only the Secretary of the Municipality could address the Government for getting sanction and that the appellant could not have addressed the Government directly for that purpose. However, according to him, it was the duty of the appellant to get sanction through the Secretary and in that respect, there was default on his part. 9. One of the main contentions raised by the learned counsel for the appellant is that notice provided under Section 11 (1) (b) of the Local Fund Audit Act, 1994, was not issued to him and as such, _MFA(Panchayat) 125 of 2022_ 7 the impugned surcharge certificate issued without complying the above provision is unsustainable. According to the learned Government Pleader, notice was issued to the Municipality and thereafter Ext.B6 notice dated 4.8.2016 was issued to the appellant. ## 10. In Ext.B6 issued by the Director of Local Fund Audit, to the appellant, it is stated that :- _“This is to invite your attention to paragraph number 3 – 4 on the report on the audit of accounts of Tirur municipality for the year 2013 – 14 and to state that a sum of Rs.2,67,100/- (Rs.Two Lakh Sixty Seven Thousand One Hundred only) has been lost to the funds of Tirur Municipality on account of the excess payment made by you, details of which are given in the audit report in the relevant para (extracts of the relevant audit objections are enclosed). As you have made to make the excess payment, you are held responsible for the said loss of Rs.2,67,100/- and hence the amount is recoverable from you.”_ Section 11 (1)(b) notice is intended to be issued to any employee before or during the course of the audit. As per the above provision, the auditor may :- _“require in writing, any employee of the local authority accountable for or having the custody or control of such vouchers, statements, returns, correspondences, notes or other_ _MFA(Panchayat) 125 of 2022_ 8 _documents or any person having directly or indirectly, any share or interest in any contract with or under the local authority to appear in person before him at the head office of that local authority or at the place of audit and answer any question and require any person so appearing to make and sign a declaration with respect to such document or to prepare and furnish any statement relating thereto.”_ 11. Relying upon the decision of the Hon'ble Supreme Court in **Union of India v. Rajat Infrastructure Pvt.Ltd. [ 2023 KHC 6888 ],** the learned counsel for the appellant would argue that non-issuance of notice under Section 11 (1)(b) of the LFAR Act vitiates the impugned surcharge certificate. In the above decision, the Hon'ble Supreme Court held that when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all, and other methods of performance are necessarily forbidden. 12. Ext.B6 is the first notice issued to the appellant. In the first notice issued to the appellant itself the liability is seen fixed. The purpose of S.11(1)(b) notice is to give the employee an opportunity to rectify the defects if any, found during audit. That _MFA(Panchayat) 125 of 2022_ 9 opportunity was denied to the appellant in this case. Here, section 11(1)(b) notice was issued only to the Municipality, by that time, the appellant had gone to another station. As revealed from Ext.B2, to the said notice the Municipality has not given any reply. In the facts of the case non-issuance of notice under section 11(1)(b) has prejudicially affected the interest of the appellant. 13. Section 15(3)(b)(i) of KLFA Act provides for exploring the possibility of regularization of irregularities noticed during audit. Here the defect was only want of sanction from the government. The scope of regularization of the defect involved in this case was also not seen looked into by the auditor, before putting the entire burden on the appellant, on the sole ground that he was the person entrusted with the duty to implement the scheme. 14. As per the project 'Vridhajanaparipalanam', eyes of old age persons were tested, medicines were supplied, spectacles were also supplied to such persons. Rs.2,67,100/- appears to be the amount utilized for the entire scheme. From the impugned order of the District Judge itself it appears that in the stock register, bills for Rs.149999.8 were found. In Ext.B2, the main audit _MFA(Panchayat) 125 of 2022_ 10 objection is that the above Rs.2,67,100/- was spent without getting prior permission of the Government. In Ext.B2 it is also stated that 14 numbers of spectacles purchased as per the above Scheme were available in the office without being distributed to the beneficiaries. According to the appellant, the above 14 spectacles were there in the office as the beneficiaries have not come forwarded to receive the same. Further, according to him, subsequently those spectacles were distributed to the beneficiaries. 15. In the decision in **Bhaskaran N. v. Director of Local Fund** **Audit, Trivandrum [2013 (2) KHC 4],** the Secretary of Kulakkada Grama panchayat, on the basis of the resolutions passed by the Panchayat, distributed 90% of the sale proceeds of river sand among the workers, while the Government Circular limited it to 50%. When the Secretary of the Grama Panchayat challenged the surcharge certificate issued against him alone, this Court set aside the same holding that the Secretary has been acting as per the resolution of the Panchayat and as such, the _MFA(Panchayat) 125 of 2022_ **==> picture [12 x 10] intentionally omitted <==** proceedings initiated against the Secretary alone is unsustainable. 16. In the instant case also, the appellant was only implementing the project prepared and approved by the Municipal Council and the District Planning Board and as directed by the Secretary of the Municipality. The surcharge certificate was issued only against the appellant on the sole ground that prior sanction of the Government was not obtained by him. The appellant is only the Junior Health Inspector entrusted with the implementation of the project. Since the project was prepared and approved by the Municipal Council and the District Planning Board and the appellant was authorised to implement the project by the Secretary, all of them are equally liable for implementation of the project. In the above circumstances, going by the dictum laid down in **Bhaskaran's** case (supra), the surcharge certificate issued against the appellant alone, mulcting the entire responsibility on a single person is liable to be set aside. Point answered accordingly. 17. In the result, this appeal is allowed. The impugned judgment _MFA(Panchayat) 125 of 2022_ 12 of the Additional District Judge dismissing the OP is set aside and the OP is allowed. Ext.A1 surcharge certificate is set aside. Sd/- **C.Pratheep Kumar, Judge** Mrcs/20.11.