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2023 Supreme(Online)(Ker) 62780
IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.PRATHEEP KUMAR, J
K.K.HAMSA – Appellant
Versus
THE DIRECTOR OF LOCAL FUND AUDIT – Respondent
MFA (PANCHAYAT) NO. 125 OF 2022 | OP (LOCAL FUND AUDIT) 139/2018
For the Appellants/Petitioners: P.SAMSUDIN, MILAN RACHEL MATHEW, LIRA A.B.
For the Respondents: SRI.P.M.SHAMEER, SR.GP-SRI.B.UNNIKRISHNA KAIMAL
Surcharge certificates cannot solely hold implementing officers liable without proper notifications and adherence to procedural requirements within administrative hierarchies.
Headnote:(A) Kerala Municipality Act, 1994 - Section 295(13) and Section 11(1)(b) - Appeal against surcharge certificate for excess payment without Government approval - Appellant was a Junior Health Inspector implementing an approved project - Managed by the Municipality but failed to secure prior sanction - Court found surcharge notice invalid due to lack of proper notice. (Paras 1, 3, 5-7, 11-13, 16)
(B) Administrative Responsibility - It is inappropriate to hold an implementing officer solely responsible without verifying the roles of others in the administrative hierarchy. (Paras 5, 6, 16)
Facts of the case:
The appellant was charged with a financial loss of Rs.2,67,100/- due to non-approval of a project 'Vridhajanaparipalanam' while performing his duties as Junior Health Inspector. He received a surcharge notice without prior opportunity to contest it as required by law.
Findings of Court:
The appeal is allowed, the surcharge certificate is set aside, and the order dismissing the OP is reversed.
Issues: Whether the surcharge certificate against the appellant is valid given that he acted under authorization from the Municipality.
Ratio Decidendi: The court emphasized the importance of adherence to procedural requirements and that responsibility cannot rest solely on a junior officer when others in the administration are involved.
Result: The appeal is allowed, and the impugned judgment is set aside.
| Table of Content |
|---|
| 1. overview of appeal and appellant's background. (Para 1 , 2) |
| 2. key issue regarding the sustainability of the surcharge certificate. (Para 3 , 4) |
| 3. arguments concerning the responsibilities of the appellant and the secretary. (Para 5 , 6 , 8 , 9) |
| 4. analysis of the audit process and legal requirements. (Para 7 , 10 , 12 , 13 , 14) |
| 5. judicial precedent relevant to liability and implementation. (Para 15 , 16) |
| 6. judgment conclusion and order. (Para 17) |
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
