M.M. Hussain v. State of Kerala and Others

**C.R** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** **WP(C).No.19040 OF 2013(D)** ## **PETITIONER :** **M.M.HUSSAIN, (FORMER ADDL. GOVERNMENT PLEADER AND PUBLIC PROSECUTOR) ADVOCATE, HASEENA MANZIL, OPP.TO VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM.** **BY ADVS. SRI.P.J.MATHEW SRI.AJITH GEORGE** ## **RESPONDENTS :** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**LAW DEPARTMENT, GOVT. SECRETARIAT,**| ||**THIRUVANANTHAPURAM, PIN – 695 001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**CIVIL STATION, KUDAPPANAKUNNU,**| ||**THIRUVANANTHAPURAM.**| |**3**|**THE PROPERTY TAHSILDAR,**| ||**REVENUE RECOVERY, TALUK OFFICE,**| ||**THIRUVANANTHAPURAM.**| ## **BY SENIOR GOVERNMENT PLEADER SRI.B.VINOD** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **==> picture [483 x 88] intentionally omitted <==** **WP(C).No.19040 OF 2013(D)** 2 ## **C R** ## **JUDGMENT** Dated this the 21st day of October 2020 A former Government Pleader is placed in a peculiar situation in which he is served with a revenue recovery notice for an alleged loss caused to the Government. The loss is alleged to have been caused due to a lapse, allegedly committed by the Petitioner, in applying for a certified copy of the judgment in a land acquisition reference case. 2. Petitioner was an additional Government Pleader during the period from 09.03.1992 to 28.07.1997. By Ext.P1 show cause notice dated 20.05.2005, petitioner was called upon to explain a delay of 4½ years in obtaining and forwarding a copy of the judgment in a LAR case [LAR No.296/94]. It was alleged that even though the judgment was delivered on 31.01.1997, a copy of the judgment was not given to the District Collector and the copy was received only on 16.06.2001. The notice further stated that the Government suffered huge losses due to the default committed by the petitioner. Even though the show cause notice was issued almost 8 years after the term of the petitioner as Government Pleader ended, still, an explanation was submitted which is produced as Ext.P2. In the reply notice, petitioner explained that he had **WP(C).No.19040 OF 2013(D)** 3 made an application on 31.01.1997 itself, however, the application was rejected for non-payment of stamp after 18.03.1998, while his term as Government Pleader ended on 28.07.1997. 3. By another notice dated 03.03.2008 (Ext.P3) petitioner was informed that since the copy application was filed only on 06.06.1997 and due to the failure to inform the successor in the office about the application for a copy of the judgment, the Government suffered a loss of Rs.72,033/-. The notice also sought for an explanation from the petitioner as to why the said amount ought not to be recovered from him. A detailed explanation was submitted by the petitioner in which it was further informed that the decree in the judgment in LAR.No.269/1994 was prepared only on 07.11.1997 and stamp was called for, pursuant to the application for copy, only on 18.03.1998 alone. However, due to the failure of the Government to furnish the requisite stamp, the application is known to have been rejected. He thus denied any negligence or liability on his part. 4. However, without considering his explanation and in a unilateral manner, Ext.P8 order was issued on 13.04.2009 finding liability upon the petitioner for causing the alleged loss. 5. It is the petitioner's case that, before fixing the liability **WP(C).No.19040 OF 2013(D)** 4 upon the petitioner, there has not been a proper adjudication, that too by any independent authority. Petitioner further contends that there is no evidence for the alleged loss to the Government and fixation of liability has been made without any basis or any evidence and even the figures have been arrived at unilaterally. Petitioner also questioned the jurisdiction of the Government to fix the liability and attempt recovery from the petitioner, especially when they are an aggrieved party. 6. A counter affidavit has been filed on behalf of the first respondent pointing out that there was a delay of 1629 days in obtaining a certified copy, and the delay could be attributed only to the petitioner. It is also pointed out that carbon copy of the judgment was also not applied for and due to the delay in applying for the certified copy of the judgment, enhanced value of land for the period 30.04.1994 to 30.04.1995 @15% had to be incurred by the Government and the said liability was the loss caused to the State Government. Since the petitioner was a lawyer, he conducted the case on behalf of the State, during his tenure as Government Pleader. It is pointed out by the respondent that the liability has been properly imposed upon the petitioner. 7. I have heard Adv. Mansoor Ali for Adv.P.J.Mathew on behalf of the petitioner and also the learned Senior Government Pleader **WP(C).No.19040 OF 2013(D)** 5 Sri.B.Vinod on behalf of the respondents. 8. The Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 [for short, 'KGLO Rules'] was amended in 1994 to incorporate Rule 18, providing for the liability of Law Officers to pay damages. Rule 18 of the KGLO Rules reads as follows:- ## _**18. Liability of Law Officers to pay damages in certain**_ _**cases.-** A person appointed as Government Law Officer shall conduct the cases carefully and efficiently and safeguard Government interests and in case of any default, he shall be liable to pay the Government, even after he ceases to be Government Law Officer, damages equal to the loss or injury incurred or sustained by the Government as a result of his carelessness, negligence or other misconduct in conducting any case or safeguarding Government interests._ 9. A reading of the aforestated provision makes it clear that in the case of any default, Government Law Officers shall be liable to pay to the Government damages, equal to the loss or injury incurred or sustained by the Government as a result of his carelessness, negligence or other misconduct. It, however, stipulates that the default specified as above must be in relation to the conduct of any case or safeguarding of **WP(C).No.19040 OF 2013(D)** 6 the Government interests. The procedure to levy damages is not laid down in the said provision. The Authority to decide the default or the quantum is also not laid down in the Rule. 10. When the Government initiates proceedings to levy damages against a Government Law Officer by recourse to Rule 18 of KGLOA Rules, and the officer concerned disputes the allegations leveled against him, it is essential that there must be an adjudication on his alleged default. The adjudication must also prove that the default was caused due to carelessness, negligence, or other misconduct in conducting a case or safeguarding Government interests. There must also be an adjudication on the quantum of loss or injury incurred or sustained by the Government which is directly relatable to the aforesaid default. In the absence of such an adjudication, levy of damages under Rule 18 by the Government itself cannot be justified. The procedure and the manner in which such levy of damages is to be imposed on a Government Law Officer is also not laid down in the Rule. 11. The Rule itself is thus indicative of the legislative wisdom that adjudication and levy can only be through the available forum and not by one of the parties to the dispute - the Government. It is a reflection of the wisdom of applying the principle of ‘ _nemo judex in causa_ **WP(C).No.19040 OF 2013(D)** 7 _sua’_ which means, literally, " _no-one shall be a judge in his own cause_ ." It is a principle of natural justice that no person can judge a case in which he has an interest. 12. The decision maker’s impartiality is one of the most sublime and cherished ideals on which the rule of law thrives. Such impartiality must be experienced by the parties to the dispute also. The decision maker’s impartiality is expressed in the maxim ‘ _nemo judex in causa sua’_ and is one of the facets of natural justice. Natural justice is the essence of fair adjudication, deeply rooted in tradition and conscience to be ranked as fundamental. The purpose of following the principles of natural justice is the prevention of miscarriage of justice. They form the minimum protection of the rights of an individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial, and administrative authority while making an order affecting his rights. The rules of natural justice are intended to prevent such authority from doing injustice. One of the essential requirements of the principles of natural justice is that the authority deciding the issue must be impartial and should not have any personal interest in the controversy. Reference can be made to the decision in _**Uma Nath Pandey and Others V. State of Uttar Pradesh and Another [(2009) 12 SCC 40]**_ and that of this Court in _**Philip v. Registrar of Co operative Societies [2018**_ **WP(C).No.19040 OF 2013(D)** 8 ## _**(3) KLT 347]**_ . 13. Loss caused to the Government is disputed by the Petitioner. Alleged action of the Petitioner resulting in loss to the government is also disputed. In other words, liability of the Petitioner is disputed. In spite of the above mentioned disputes, loss caused and even the liability, is assessed by the Government, without recourse to any independent authority like an arbitrator or a Court of law. Based on an assessment of liability by one of the parties to the cause - the petitioner is being proceeded against. Ext.P8 is the order of assessment of liability imposed by the Government itself for recovering the loss sustained to it. No evidence is taken and no adjudication is carried out, despite a dispute raised by the petitioner. Such an order cannot be termed as valid in the eye of law. Ext.P8 is therefore arbitrary and hence vitiated. 14. Apart from the above, it is evident from Ext.P11 that the petitioner had applied for a certified copy of the judgment atleast by 07.06.1997. I am mindful of the contention of the petitioner that he had applied for a certified copy of the judgment immediately after the judgment was delivered. However, it is pleaded that a copy of the said application was misplaced from the files of the court. Whatever be the veracity of the said contention, the fact remains that the petitioner had **WP(C).No.19040 OF 2013(D)** 9 made arrangements to apply for a certified copy as is evident from Ext.P11. It is also the admitted case that a copy application pursuant to Ext.P11 was dismissed for the non-production of stamp paper on 24.03.1998. Petitioner's term as Government Pleader expired on 28.07.1997. Thus, the petitioner cannot be mulcted with the liability for the alleged long delay in obtaining a certified copy till 13.06.2001. These disputed facts that arose in the case could not have been determined by the Government and mulcted the petitioner with liability, without having recourse to a court of law. 15. Further, the first notice itself was issued only after 8 years of expiry of petitioner's term as Government Pleader. The delay in issuing Ext.P1 notice and initiation of proceedings have also prejudiced the petitioner since he would not have been able to defend the allegations against him properly at such a belated stage. The proceedings against the petitioner are thus bad for violations of principles of natural justice. 16. Yet another glaring aspect in the case is the absence of evidence on the loss sustained to the Government. There is no evidence of any loss sustained and if sustained, in what manner it was sustained. In the absence of evidence of loss sustained, the petitioner cannot be mulcted with a liability, based on assumptions. **WP(C).No.19040 OF 2013(D)** 10 In such circumstances, I find that Ext.P8 order dated 13.04.2009 imposing liability upon the petitioner for the alleged loss caused to the Government is illegal and without any basis. I quash Ext.P8. Consequently, Ext.P9 as well as the revenue recovery notices issued as Ext.P10 also shall stand quashed. The original petition is allowed as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **==> picture [483 x 367] intentionally omitted <==** **WP(C).No.19040 OF 2013(D)** 11 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT-P1: PHOTO COPY OF THE SHOW CAUSE NOTICE DATED 20.5.2005. EXHIBIT-P2: PHOTO COPY OF THE EXPLANATION DATED 1.6.2005. EXHIBIT-P3: PHOTO COPY OF THE NOTICE SEEKING EXPLANATION DATED 3.3.2008. EXHIBIT-P4: PHOTO COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER 22/3/08. EXHIBIT-P5: TRUE COPY OF THE NOTICE FOR HEARING DATED 19.4.2008. EXHIBIT-P6: PHOTO COPY OF THE LETTER DATED 26.6.2008. EXHIBIT-P7: PHOTO COPY OF THE COVERING LETTER ALONG WITH THE DOCUMENTS ENCLOSED 16.2.2009. EXHIBIT-P8: PHOTO COPY OF THE ORDER 13.4.2009. EXHIBIT-P9: PHOTO COPY OF THE ORDER DATED 11.5.2009. EXHIBIT-P10: PHOTO COPY OF THE ORDER OF RECOVERY OF THE 3RD RESPONDENT DATED 5.6.2013.**