Allowed

K.Sudhakaran v. Director, Kerala Local Fund Audit and

Kerala HC16 Nov 2011WP(C)/17804/2010

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a writ petition filed by an Assistant Executive Engineer challenging a surcharge certificate. The Court quashed the certificate for lack of considered findings and directed the authority to pass a speaking order within one month.

What did the court decide?

Ext.P3 and P3(a) certificates quashed; First Respondent directed to pass speaking order within one month.

K.Sudhakaran Vs Director, Kerala Local Fund Audit and — Kerala HC (2011) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933

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WP(C).No. 17804 of 2010(A)

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--------------------------

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PETITIONER(S):

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K.SUDHAKARAN, S/O.P.KUTTAN, AGED 49 YEARS,ASSISTATN EXECUTIVE ENGINEER, OFFICE OF THE CHIEF ENGINEER, TRANSMISSION NORTH, K.S.E.B.KOZHIKODE, RESIDING AT ARSHA BHAVAN, MACHANICAL BY BYE-LINE,CUSAT P.O, KALAMASSERY, KOCHI,

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BY ADV. SRI.JOHNSON P.JOHN SRI.RAJU VADAKKEKARA

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RESPONDENT(S):

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1. DIRECTOR, KERALA LOCAL FUND AUDIT, THIRUVANANTHPARAM.-695033.

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2. DEPUTY DIRECTOR (HIGHER GRADE) LOCAL FUND AUDIT, DISTRICT OFFICE,THODUPUZHA, IDUKKI DISTRICT.

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3. DISTRICT COLLECTOR AND CHAIRMAN, DISTRICT PLANNING COMMITTEE PEOPLES PALNNING PROGRAMME, IDUKKI DISTRICT.PAINAVU P.O., IDUKKI-685602,

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4. SECRETARY, ADIMALI GRAMA PANCHAYATH, ADIMALI P.O,IDUKKI DISTRICT.

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GOVERNMENT PLEADER SMT. ROSE MICHAEL FOR R1 TO R3 SRI.LATHEESH SEBASTIAN FOR R4

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.11.2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 17804 of 2010(A)

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APPENDIX:

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PETITIONER'S EXHIBITS:

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EXT.P1: TRUE COPY OF SURCHARGE NOTICE DATED 25.5.2009 ISSUED BY 2ND RESPONDENT TO THE PETITIONER. EXT.P1(a): TRUE COPY OF SURCHARGE NOTICE DATED 9.6.2009 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P2: TRUE COPY OF OBJECTION FILED BY THE PETITIONER DATED 3.8.2009. EXT.P3: TRUE COPY OF SURCHARGE CERTIFICATE DATED 28.11.2009, ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P3(a): TRUE COPY OF SURCHARGE CERTIFICATE DATED 18.11.2009 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER.

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RESPONDENTS' EXHIBITS:

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ANEXURE R4(a): TRUE COPY OF THE TECHNICAL SANCTION FOR THE ITEM MENTIONED AS 3-11 IN EXHIBIT P2.

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C.K. ABDUL REHIM,J.

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W.P.(C) No. 17804 OF 2010

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Dated this the 16th day of November, 2011

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JUDGMENT

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In this writ petition the petitioner is challenging Ext.P3 and P3(a) surcharge certificate issued by the first respondent under the provisions of Section 16(1) and (2) of the Local Fund Audit Act read with Rule 20(7) of the Local Fund Audit Rules 1996. It is evident that, as per Section 16 (3) of the Act, if the petitioner is aggrieved by the surcharge imposed, he can apply to the District Court to set aside such surcharge and that Court can confirm or modify or remand imposition of surcharge, after taking such evidence as is necessary. Since the petitioner has not availed the effective statutory remedy, the challenge now raised against Ext.P3 and P3(a) cannot be considered in this writ petition filed under Article 226.

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Learned counsel for the petitioner points out that

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W.P.C. No. 17804 OF 2010 -2-

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Ext.P3 and P3(a) are issued without any consideration of the objection raised by the petitioner to surcharge notice. As per the procedure contemplated under Rule 20, before issuing surcharge certificate the person against whom the said surcharge charge is proposed should be issued with a surcharge notice. Admittedly in this case, such notice was issued and the petitioner had submitted explanations to the audit objections raised. As per Rule 20(7), the surcharge certificate can be issued only if the authority arrives at conclusion that the petitioner had failed to furnish any satisfactory explanation to the surcharge notice. Referring to Ext.P3 learned counsel for the petitioner pointed out that, the issuance of surcharge notice as well as submission of the explanation are admitted. But the first respondent had only observed that the opinion furnished by the Deputy Director is to the effect that explanation is unsustainable.

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I find merit in the above contention. Going by the provision contained in Section 16 read with Rule 20, it is

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W.P.C. No. 17804 OF 2010 -3-

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obligatory on the part of the authority who issue the surcharge certificate to examine the explanations submitted by the person concerned and to arrive at a conclusion that such explanation is satisfactory or not. Since such authority is exercising a statutory functioning which is quasi judicial in nature the consideration should reflect in the order issued so that the aggrieved person can challenge the decision on merits. Since Ext.P3 is totally lacking from any reflection of such consideration or any reasonings upon which the satisfaction is arrived, I am of the view that Ext.P3 could not be sustained under law. Under such circumstances I am inclined to quash Ext.P3 and P3(a) certificates.

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In the result the writ petition is allowed and Ext.P3 and P3(a) certificates and the decisions taken by the first respondent in this regard are hereby quashed. The first respondent is directed to consider the explanation submitted by the petitioner against the audit report and the surcharge notice, and to take a decision through speaking order

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W.P.C. No. 17804 OF 2010 -4-

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regarding sustainability of such explanations. The needfull in this regard should be done expeditiously, at any rate within one month.

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Needless to say that if the petitioner is aggrieved by any such decision taken, he will be at liberty to invoke the statutory remedy as provided under Section 16(3) of Local

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Fund Audit Act.

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C.K. ABDUL REHIM JUDGE.

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Kp/-

K.Sudhakaran v. Director, Kerala Local Fund Audit and

Case brief

What is this about?

What did the court decide?

K.Sudhakaran v. Director, Kerala Local Fund Audit and

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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