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2023 Supreme(Ker) 981
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.PRATHEEP KUMAR, J.
K.K.Hamsa, S/o Kunhaliyamu - Appellant
Versus
The Director Of Local Fund Audit - Respondent
MFA (Panchayat) No. 125 of 2022
Decided on : 29-11-2023
Advocate Appeared:
For the Appellant : P.SAMSUDIN, MILAN RACHEL MATHEW, LIRA A.B.
For the Respondent: SRI.P.M.SHAMEER, SRI.B.UNNIKRISHNA KAIMAL
The main legal point established in the judgment is that when a project is prepared and approved by the relevant authorities, and an employee is only implementing it as directed, the employee cannot be solely held responsible for not obtaining government sanction. Additionally, the non-issuance of required notices can prejudicially affect the interests of the employee.
Headnote:
Surcharge Certificate - Municipal Project Implementation - Kerala Municipality Act,1994, Section 295(13) - 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
Fact of the Case:
The appellant, a Junior Health Inspector, was held responsible for excess payment made during the implementation of a project without obtaining prior permission from the Government. He argued that the project was prepared and approved by the Municipal Council and the District Planning Board, and he was only implementing it as directed by the Secretary of the Municipality.
Finding of the Court:
The court found that the appellant alone was found at fault for not obtaining government sanction, despite the project being prepared and approved by the Municipal Council and the District Planning Board. The court also noted that the notice required under the Local Fund Audit Act was not issued to the appellant, prejudicially affecting his interest.
Issues: The main issues were whether the surcharge certificate issued against the appellant alone for implementing the project without obtaining prior permission from the Government was sustainable, and whether the non-issuance of notice under the Local Fund Audit Act prejudicially affected the appellant's interest.
Ratio Decidendi: The court held that the surcharge certificate issued against the appellant alone was not sustainable, as the project was prepared and approved by the Municipal Council and the District Planning Board, and the appellant was only implementing it as directed by the Secretary of the Municipality. The court also emphasized that the non-issuance of notice under the Local Fund Audit Act prejudicially affected the appellant's interest.
Final Decision: The appeal was allowed, the impugned judgment was set aside, and the surcharge certificate was also set aside.
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 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, 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 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
