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2009 Supreme(J&K) 344
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Sunil Hali, J.
Mohd. Afzal Malik - Appellant
Versus
State & Ors. - Respondent
OWP No. 13/2005
Decided On : 18 August, 2009
Advocate For Appellant: M.A. Qayoom
Advocate For Respondent: M.A. Wani
The main legal point established in the judgment is the requirement for a determination and hearing before certifying the amount due for recovery, as well as the importance of investigating the misuse of government funds and ensuring fairness and natural justice in administrative proceedings.
Headnote:
Land Revenue Act - Recovery of Embezzled Amount - Section 91(CC) - Section 91(EE)
Fact of the Case:
The petitioner, a Head Cashier, is accused of embezzling a substantial amount while working in the Consumer Affairs and Public Distribution Department. The department sought to recover the embezzled amount as arrears of land revenue under Section 91(CC) of the Land Revenue Act. The petitioner challenged the recovery order, contending that the section cannot be invoked, and the amount sought to be recovered has not been determined after hearing him. The petitioner also raised concerns about the lack of compliance with the Land Revenue Act and the absence of provisions for recovering embezzled amounts by public servants.
Finding of the Court:
The court found that the petitioner had indeed embezzled a significant amount and failed to deposit it in the treasury as required. However, the court also noted that the department had not determined the exact amount embezzled and had not provided the petitioner with an opportunity to be heard before certifying the amount due. The court also highlighted the department's failure to investigate the involvement of other officials and the misuse of government funds. As a result, the court quashed the recovery order and directed a fresh inquiry to identify the actual embezzled amount and the responsible individuals. The court also instructed the Chief Secretary to take steps to lodge an FIR against the indicted officials and submit a status report to the court.
Issues: The issues revolved around the legality of recovering the embezzled amount as arrears of land revenue under the Land Revenue Act, the lack of determination and hearing before certifying the amount due, and the failure to investigate the involvement of other officials and the misuse of government funds.
Ratio Decidendi: The court held that the recovery order was invalid due to the lack of determination and hearing before certifying the amount due. The court also emphasized the need for a fresh inquiry to identify the actual embezzled amount and the responsible individuals, as well as the importance of investigating the misuse of government funds. The court's decision was based on the principles of natural justice and fairness.
Final Decision: The recovery order was quashed, and a fresh inquiry was directed to determine the actual embezzled amount and identify the responsible individuals. The Chief Secretary was instructed to take steps to lodge an FIR against the indicted officials and submit a status report to the court.
2. In terms of Government Order No.10-DFSK of 93 dated 16-04-1993 the petitioner was directed to hold the charge of Cashier in addition to his own duties. At the time of taking over charge an amount of Rs.20,50,472.70/- was reflected to be lying with his predecessor Ghulam Mohammad Hakim. Only an amount of Rs.2,88,519/- was handed over to the petitioner. The petitioner continued to work as a Head Cashier till 23rd of October, 2001. It transpires that the petitioner had not been depositing the cash received by the department from various sale centres in the chest and the same was retained by him without depositing in the treasury. An enquiry is stated to have been conducted by the Dy. Director who submitted his report on 11-10-2001. Petitioner is stated to have participated in the said enquiry. The report reveals that an amount of Rs.48,25,735.00 were found short which was admitted to have been retained by the petitioner. It is stated in the report that the petitioner has admitted shortage of Rs.48,25,735.00. Appropriate action against the petitioner was recommended. A show cause notice, seeking the termination of the petitioner from the service, was issued to him for act of omission and commission committed by him. The impugned notice reveals that after having detected the shortage of Rs.48,25,735.00 at the time of enquiry an amount of 8,91,246.00 was deposited by the petitioner leaving the balance of 39,34,489.00. It transpires that the petitioner has been terminated from the service which is subject matter of challenge in another writ petition SWP No.735/03. It is important to note that an FIR was lodged against the petitioner in July, 2002 in which report under Section 173 Cr.PC stands filed in the court and the trial has already been initiated in the matter. Petitioner has been terminated from service on 9th of August, 2002.
3. Controversy in this case relates to the question as to whether an amount of Rs.39,34,489/- can be recovered as arrears of land revenue and whether procedure envisaged under law dealing in such recoveries has been complied with.
4. After having failed to deposit the aforementioned amount respondent No.3 has referred the matter to the Dy. Commissioner (Collector) for effecting the recovery from the petitioner as arrears of land revenue vide his communication dated 21-12-2002. It transpires that the recovery is sought under Section 91(CC) of the Land Revenue Act. In pursuance to the recommendations made by the respondent No.3 nothing seems to have been done by the Collector, as a result of which another communication was addressed by the Director-respondent No.2 soliciting information regarding the steps taken to seek such recovery from the petitioner. These two orders are subject matter of challenge before this Court.
5. The petitioner contends that he was not informed about the proposed action taken against him by the respondents 2 and 3. The action was initiated by respondent No.5 while taking recourse to section 63 of the Land Revenue Act. This action was prompted on the basis of reference made by respondent No.3 in terms of section 90 of the Act.
6. Petitioner has questioned this order on the following grounds:
a) that section 91(CC) of the Land Revenue Act cannot be invoked in the present case. that respondent No.3 is not an officer appointed under section 90 of the Land Revenue Act for purpose of making reference to the Collector for recovering the amount. that the sum sought to be recovered
