Ramanathan A. Sravan v. The Director, Akshaya Kerala State IT Mission, Keltron Campus, Vellayambalam, Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN** **THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943 WP(C) NO. 27377 OF 2017** ## **PETITIONER:** ## **RAMANATHAN.A SRAVAN,NEAR KANNIKOTHU KAVU, PIRAYARI,PALAKKAD DISTRICT** ## **BY ADV SRI.V.PREMCHAND** ## **RESPONDENTS:** - **1 THE DIRECTOR, AKSHAYA KERALA STATE IT MISSION, KELTRON CAMPUS, VELLAYAMBALAM,THIRUVANANTHAPURAM** - **2 THE DISTRICT COLLECTOR PALAKKAD DISTRICT** - **3 THE PIRAYIRI GRAMA PANCHAYAT PIRIYARI, PALAKKAD DISTRICT,REPRESENTED BY ITS SECRETARY** - **4 THE DISTRICT PROJECT MANAGER AKSHAYA DISTRICT OFFICE,PALAKKAD DISTRICT** - ***5 ADDL.R5.LEO BABU,AGED 18 YEARS S/O BABU, C.A.STUDENT, RESIDING AT BETHIL, POOZHIKUNNAM ROAD, CHUNKAM, PIRAYIRI (POST), PALAKKAD DISTRICT, PIN678004.** ***(IMPLEADED VIDE ORDER DATED 04.10.2017 IN IA NO.14924/17)** **GOVERNMENT PLEADER SRI.K.M.FAISAL-R1,2 &4 SRI.P.K.MOHANAN (PALAKKAD)-R5 SRI.SAIJO HASSAN,SC-R3** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **7.10.2021, THE COURT ON 21.10.2021 DELIVERED THE FOLLOWING:** W.P.(C) 27377/2017 2 ## **JUDGMENT** The Kerala State IT Mission under the Department of Information Technology, Government of Kerala, is the nodal agency to create and run Common Service Centers to provide Government services to the public under the brand name “Akshaya”. The District e-Governance Society (DeGS), with the District Collector as its Chairperson, is the monitoring and co-ordinating agency of Akshaya at the District level. The Akshaya Centre Entrepreneur ('ACE', for short) selected to set up Akshaya E- Kendras for each location has to enter into an agreement with the Government, acting through the Chairperson of DeGS and the agreement provides for the terms and conditions for running the Akshaya E-Kendra including the termination of entrepreneurship. 2. The petitioner was selected as ACE for running Akshaya E- Kendra for Krishna Road location (Location Code: W.P.(C) 27377/2017 3 PKD 166) of Pirayiri Grama Panchayath, Palakkad District and was operating the said Akshaya E- Kendra from 2008. 3. A student by name Leo Babu, the additional 5[th] respondent, who applied for admission to B.Com course in the Colleges under the University of Calicut availed the service of the Akshaya E- Kendra run by the petitioner on - _E_ 13.06.2017 to remit the mandatory fee for first allotment. chalan for Rs.425/- was raised by the Akshaya E- Kendra and the 5[th] respondent paid Rs.435/- which included Rs.10/towards service charges for the Akshaya E- Kendra. A receipt for Rs.435/- was issued to the 5[th] respondent by the Akshaya E-Kendra. After remitting the mandatory fee for the first allotment, the 5[th] respondent attempted for the next higher option but, found that he is not eligible for the next allotment. When the 5[th] respondent found that the ineligibility for the next higher option was due to nonremittance of the mandatory fee for the first allotment, he W.P.(C) 27377/2017 4 approached the Akshaya E- Kendra on 19.06.2017 and they told him that they will enquire into the matter and took the receipt issued on 13.06.2017 from him. After the 5[th] respondent reached home, he received a message of remittance of the fees. When he went to the Akshaya E- Kendra to enquire about this, he was issued with Ext.R5 (b) fresh receipt with alterations in the date. According to the 5[th] respondent, though the Akshaya E- Kendra collected the fees and service charges from him on 13.06.2017, they remitted the fees to the University only on 19.06.2017 when he complained of the non-remittance. The last date for remittance of the mandatory fee for the first allotment was on 16.06.2017 and due to the failure on the part of the Akshaya E- Kendra to promptly remit the amount collected from him to the University, he lost his chance to prosecute studies in a Government College of his choice and had to take admission in Self Financing College paying huge fees. The 5[th] W.P.(C) 27377/2017 5 respondent filed complaint against the petitioner before the police, the District Collector and other authorities. Pursuant to the complaint, the District Collector, Palakkad, by Ext.P5 order, terminated the Akshaya E- Kendra entrepreneurship of the petitioner. Ext.P5 order is impugned in the writ petition. 4. According to the petitioner, the 5[th] respondent came to his Akshaya E- Kendra to remit the fee only on 19.06.2017 and his version in the complaint is factually incorrect. The petitioner further contends that the District Collector has passed the order of termination of Akshaya E- Kendra without following the procedures in Ext.P6 agreement entered into between the petitioner and the Government of Kerala. Though the agreement contemplates termination of ACE by the District Collector pursuant to a resolution of the Local Self Government Institution recommending termination carried after an enquiry with notice and opportunity of hearing to the ACE, the said procedures were not followed in W.P.(C) 27377/2017 6 terminating the entrepreneurship of the petitioner. It is further contended that the District Collector blindly accepted the report of the Secretary of the Panchayath and did not apply her mind and was prevailed up on by the District Project Manager who was in inimical terms with the petitioner. It is pointed out by the petitioner that even before passing Ext.P5 order terminating the ACE, the District Project Manager had informed the 5[th] respondent vide Ext.P7 that the District Collector had taken a decision to cancel the ACE of the petitioner. The petitioner submits that Ext.P5 is illegal and vitiated by errors apparent on the face of records and therefore, liable to be set aside. 5. A counter affidavit is filed on behalf of respondents 1 and 2 resisting the averments in the writ petition and contending that the ACE of the petitioner was terminated after following all procedures as provided in Ext.P6 agreement. It is also stated that the petitioner has an W.P.(C) 27377/2017 7 alternative remedy under sub clause (v) of clause F of Ext.P6 agreement and he has not exhausted that remedy before approaching this Court. 6. The 5[th] respondent has filed a counter affidavit narrating the incidents which happened at the Akshaya E- Kendra on 13.06.2017 and 19.06.2017 and how the laches on the part of the petitioner had affected his studies. 7. Heard Sri. V. Premchand, the learned Counsel for the petitioner, Sri.Saijo Hassan, the learned Standing Counsel for the 3[rd] respondent, Sri.P. K.Mohanan, the learned Counsel for the additional 5[th] respondent and Sri.K.M.Faisal, the learned Government pleader for respondents 1, 2 and 4. 8. When this writ petition was heard on 23.09.2021, the counsel for the 3[rd] respondent panchayath as well the learned Government Pleader submitted that the District Collector had passed Ext.P5 order of termination based on a resolution carried by the Panchayath pursuant to an enquiry report of W.P.(C) 27377/2017 8 the Secretary of the Panchayath. Accordingly, they sought time to produce those documents. 9. The learned Government Pleader has filed a Memo dated 24.09.2021 producing the copy of the enquiry report dated 17.07.2017 of the Secretary of the Panchayath and the Counsel for the 3[rd] respondent Panchayath has produced the copy of the resolution No.10 (1) dated 13.07.2017 of the Panchayath recommending the termination of Akshaya E- Kendra entrepreneurship of the petitioner as Annexure-R 3 (a), along with his Statement. 10. On a perusal of the report of the Secretary of the Panchayath dated 17.07.2017 to the District Project Manager, it is seen that the said report was prepared and submitted after visiting the Akshaya E- Kendra run by the petitioner and hearing the petitioner and his staff. Further, Annexure-R3 (a) resolution would show that, the report was placed before the Panchayath Committee and the matter was deliberated and W.P.(C) 27377/2017 9 the Committee evaluated that the Akshaya E- Kendra had committed serious irregularity and unanimously resolved to recommend the termination of license of the Akshaya E- Kendra run by the petitioner. In this context, it is apposite to refer to Clause F of Ext.P6 agreement which reads as follows: ## **“F.TERMINATION OF AKSHAYA ACE** i. On violation of any conditions of the Agreement or of further orders of the Government or doing any malpractice or due to poor physical performance, the AKSHAYA shall have right to suspend the operations of the Akshaya ACE pending local body resolution. ii. The local body resolution may recommend termination based on the serious violations of agreement conditions, malpractice by ACE, poor physical performance and acting against public interest. However, this recommendation may be done only after due enquiry and after giving opportunity of being heard to the ACE after due notice. iii. The District Collector shall terminate the ACE agreement based on the local body resolution. iv. If found guilty of violation on enquiry as per clause F(i), the Agreement stands terminated and that Akshaya E-Kendra shall be declared vacant and the W.P.(C) 27377/2017 10 process of new selection of ACE shall take place by the AKSHAYA. v. The appellate authority shall be Director, Kerala State IT Mission and appeal shall be submitted to the appellate authority within 30 days of termination.” On examining the provisions of the agreement for termination of the Akshaya E- Kendra entrepreneurship, it can be seen that the termination shall be on the basis of a recommendation of the Panchayath concerned by means of a resolution carried pursuant to an enquiry with notice to the ACE. I find that all these formalities have been duly complied with by the Panchayath before recommending the termination of the Akshaya E- Kendra entrepreneurship of the petitioner. 11. Now coming to Ext.P5 order of the District Collector, the same was passed based on the resolution of the Panchayath and after hearing the petitioner and his staff in the presence of the additional 5[th] respondent, the District W.P.(C) 27377/2017 11 Coordinator of Akshaya, the District Project Manager and the Secretary of the 3[rd] respondent Panchayath and considering his written explanation and giving him all opportunity to put forth his case. Since the petitioner had stated in his explanation before the District Collector that his version of the incident will be revealed on an inspection of the CCTV footage of the camera installed at his Akshaya E- Kendra, he was given opportunity to produce the same to substantiate his version. However, he did not produce the same in spite of sufficient opportunities. Accordingly, the District Collector directed the District to conduct an Project Manager inspection of the CCTV records at the Akshaya E- Kendra. The District Project Manager, on inspection, reported that the Digital Video Recorder of the CCTV at the Akshaya E- Kendra was found to be removed. The petitioner was given fair opportunity to put forth his contentions. All the relevant facts and materials have been considered and analysed W.P.(C) 27377/2017 12 meticulously by the District Collector and a detailed order is passed. The relevant portion of Ext.P5 order reads thus: “ACE has admitted in his explanation dt. 28.06.2017 that the petitioner came to the akshaya centre on 13.06.2017 for taking challan only and was attended by akshaya staff Vaishnavi. But in the Statement of facts submitted by him, it is stated that the attended staff Vaishnavi does not recollect whether the petitioner had come to Krishna Road Akshaya e centre on 13.06.2017. This contradiction in the statements of ACE Sri.Ramanathan seems to be an attempt to distort the actual facts to suit his stand. Moreover, as pointed out in the report of the Pirayiri Grama Panchayat dt. 17.07.2017, signature of the staff of akshaya e-centre against the space for signature of cashier in the challan form is a strong indication of the fact that the petitioner has handed over the fees remittance to Calicut university on 13.06.2017 itself to the staff of ACE. On the face of the W.P.(C) 27377/2017 13 challan itself it is seen specifically noted that the last date for remittance of fees is 16/6/2017. The ACE has not shown due diligence expected from his part and has failed to render the necessary services to the customer, thereby depriving him of a priceless opportunity to get admission in merit seat in a reputed institution of his dream. The ACE failed to keep up the standard of care and responsibility expected of him. The ACE Mr. Ramanathan could have very well substantiated his stand by producing the CCTV footage which would be a clinching evidence in this matter. Inspite of a direction from the District Project Manager, Akshaya he has not produced the same which is well within his power and possession. The inspection report of the said officer says that the digital video recorder was found to be removed and the camera and connection is seen in the centre. There is little chance for the petitioner to commit a willful delay in a matter like this as alleged by the Akshaya entrepreneur W.P.(C) 27377/2017 14 Mr.Ramanathan. His version to the effect that the amount was paid only on 19/6/2017 cannot be taken for granted as the petitioner will not a make such a move after the last date for remitting the fees. It can only be presumed that the fees was handed over by the petitioner to the staff of ACE on 13/06/17 and the ACE has remitted it only on 19/6/2017 when further enquiries were made by him and the date was corrected as 13/6/2017 to save their skin. Viewing from this perspective, it can be safely presumed that this is a clear instance of laches and malpractice on the part of ACE which depicts the poor performance level of the ACE and grave dereliction of his duties towards the customer. Moreover reports of enquiry officers on hearing namely District Co-ordinator, Akshaya & District Planning Officer, Palakkad, Pirayiri Grama Panchayat Secretary, District Project Manager, Akshaya recommends the cancellation of license of Krishna W.P.(C) 27377/2017 15 Road Akshaya owned by Sri. Ramanathan A. In the agreement cited as ref.(10) above, it is clearly stated that the Akshaya entrepreneur shall have no right to deny or delay rightful governmental service to any citizen during the working hours (as per clause A 1(viii).) It is also stated that the akshaya entrepreneur shall ensure proper service and customer satisfaction. Further clause F deals with termination of akshaya ACE. Sub clause (ii) says that the local body resolution may recommend termination based on the serious violations of agreement conditions, malpractice by ACE, poor physical performance and acting against public interest. Based on the matters discussed above, it is reasonable to conclude that the allegations in the petition are correct and that the petitioner has lost a valuable opportunity to get admission in a reputed institution due to the inaction and dereliction of duty on the part of the ACE. The resolution of local body and W.P.(C) 27377/2017 16 the report of enquiry officers also substantiate the same. As already stated above, since the ACE has violated various conditions in the agreement warranting a termination of his license and since the local body has recommended for termination of the license and also taking into consideration of the enquiry reports and other records and evidences in this matter, it seems to be a fit case for invoking the powers under sub clause 3 of clause F of the agreement cited as ref.10, and it is hereby ordered that the license of akshaya centre owned by Sri. Ramanathan A of Krishna Road location (Location Code: PKD166) stands terminated from the date of this order. Pirayiri Grama Panchayath Secretary is hereby authorized to serve the notice of termination of Akshaya e centre owned by Sri. Ramanathan A of Krishna Road location (Location Code: PKD166) and to report the closure of the same. In tune with sub clause W.P.(C) 27377/2017 17 (iv) of clause F of the agreement, Krishna Road location is hereby declared vacant and the District Project Manager, Akshaya is authorized to start new selection process of ACE.” 12. A perusal of Ext.P5 order would show that the District Collector has applied her mind independently to the facts and the relevant provisions in the agreement and has come to the conclusion and decision to terminate the ACE agreement and entrepreneurship of the petitioner. All procedures as contemplated under Ext.P6 agreement have been followed before terminating the entrepreneurship of the Akshaya E- Kendra of the petitioner. The allegation of bias attributed to the respondents 2 and 4 is vague and not substantiated. Ext. P5 order passed by the 2[nd] respondent is well within the four walls of law. 13. Akshaya Centres are the delivery points for the W.P.(C) 27377/2017 18 citizen's service. The agreement the ACE enters with the Government contains the terms and conditions, duties and liabilities of the ACE to ensure effective service delivery to the public. It provides that the ACE shall not hold back any amount and promptly remit all amounts collected from the citizens and payable to the concerned agencies. 14. Even if non-remittance of the amount to the account of the Calicut University is viewed as an omission on the part of the Akshaya E- Kendra of the petitioner, his attempt to gloss over the same, which is writ large, cannot be approved. This conduct of the ACE entails termination of the ACE agreement and entrepreneurship after following the procedures contemplated under Clause F of Ext.P6 agreement. The petitioner is bound by the terms and conditions of the agreement. The procedures have been duly complied with and the ACE agreement and entrepreneurship has been rightly terminated. W.P.(C) 27377/2017 19 15. A learned Single Judge of this Court in Mushin T.P. _v_ . District Collector [judgment dated 20.06.2019 in W.P. (C). No.20551/2018], while considering the legality of an order of the District Collector cancelling an Akshaya Centre observed: **“** Akshaya Centres are opened up by the Government for serving the public, and unless and until the licensees are functioning with integrity, efficiency, honesty and discipline, the intention of the Government will be put to jeopardy, and people will loose confidence to depend such Centers, upsetting the whole fabric of the institution as such.” 16. Due to the conduct of the petitioner, the valuable right of the additional 5[th] respondent to prosecute his studies in Government college with low fee structure was lost. I do not find any reason to interfere with Ext.P5 order in exercise W.P.(C) 27377/2017 20 of jurisdiction under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed. No order as to costs. Sd/- **MURALI PURUSHOTHAMAN JUDGE** W.P.(C) 27377/2017 21 ## **APPENDIX OF WP(C) 27377/2017** ## **PETITIONER'S EXHIBITS** - **EXHIBIT P1 TRUE COPY OF THE PETITION DATED 27/06/2017 FILED BY THE PETITIONER BEFORE THE SI OF POLICE, TOWN NORTH, PALAKKAD.** - **EXHIBIT P2 TRUE COPY OF THE COMMUNICATION DATED ALONG WITH THE COMPLAINT RECEIVED FROM THE 5TH RESPONDENT.** - **EXHIBIT P3 TRUE COPY OF THE REPLY DATED 28/06/2017 SUBMITTED TO THE 4TH RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER BEFORE THE DISTRICT COLLECTOR,PALAKKAD DATED 18/07/2017.** - **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 08/08/2017 OF THE 2ND RESPONDENT** - **EXHIBIT P6 TRUE COPY OF THE AGREEMENT DATED 9/9/2013.** - **RESPONDENT.** ## **RESPONDENTS' EXHIBITS:** - **R5(A):TRUE COPY OF THE CHALLAN RECEIPT DATED 13.06.2017 OBTAINED TO THE 5TH RESPONDENT FROM THE AKSHAYA KENDRA, PIRAYIRI, PALAKKAD OWNED BY THE WRIT PETITIONER.** - **R5(B):TRUE COPY OF THE NEW RECEIPT ISSUED ON 19.06.2017 AFTER MAKING ALTERATIONS IN THE DATE AS 13.06.2017 BY THE PETITIONER'S AKSHAYA KENDRA.** ## **spc/**