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2020 Supreme(Ker) 798
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bechu Kurian Thomas, J.
M.M.Hussain – Petitioner
Versus
The State Of Kerala, Represented by The Secretary To Government, Law Department And Ors. – Respondents
WP(C).No.19040 OF 2013(D)
Decided On : 21-10-2020
Advocate Appeared:
For the Petitioner: Sri.P.J.Mathew, Sri.Ajith George, Advs.
For the Respondent: Sri.B.Vinod, Senior Government Pleader
IMPORTANT POINTS
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.
Headnote:
Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 –Rule 18-The authority deciding the issue must be impartial and should not have any personal interest in the controversy- 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.
Statement of facts:
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-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 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.
Finding of the court:
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
Result: Original petition is allowed
JUDGMENT :
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 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 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 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 s
