Writ appeal by the State against the quashing of orders recovering 50% of an alleged loss from a former Additional Government Pleader for delay in obtaining a decree copy. The court found the entire recovery initiated and adjudicated by the Government itself, without recourse to the statutory procedure or any evidence of loss, and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 17TH DAY OF OCTOBER 2022 / 25TH ASWINA, 1944
WA NO. 1415 OF 2022
AGAINST THE JUDGMENT IN WP(C) 19040/2013 OF HIGH COURT OF KERALA DATED 21.10.2020
APPELLANTS/RESPONDENTS 1 -3 IN WPC:
BY SRI. V. TEKCHAND, SR. GOVERNMENT PLEADER
RESPONDENT/PETITIONER IN WPC:
M.M. HUSSAIN
(FORMER ADDL. GOVERNMENT PLEADER AND PUBLIC PROSECUTOR), ADVOCATE, HASEENA MANZIL, OPP. TO VANCHIYOOR POLICE STATION, THIRUVANANTHAPURAM, PIN – 695035
BY ADV P.J.MATHEW
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A.1415/2022
2
J U D G M E N T
Dated this the 17th day of October, 2022
S. Manikumar, CJ.
Appellants 1 to 3 are the respondents in W.P.(C).No.19040 of 2013. Writ petition was filed by the petitioner, who is a former Government Pleader, seeking the following reliefs:
“i) To call for the entire records that lead to the passing of Exhibits-P8, P9 and P10 orders and quash the same by the issuance of a writ in the nature of certiorari or by any other appropriate writ direction or order.
ii) To declare that Exhibit P8 order is arbitrary and illegal.”
under:
2.1 Petitioner has 36 years of practice as an Advocate. He was working as Additional Government Pleader and Additional Public Prosecutor, Thiruvananthapuram, from 9.3.1992 to 28.7.1997. In spite of his dedicated and meritorious service, he was served with a notice dated 25.05.2005 alleging that, in L.A.R.No.269/1994, judgment was passed on 31.1.1997, but copy application was submitted belatedly, thereby Government have sustained loss. Petitioner submitted application, which was numbered as A. No. 1712/1997. Stamp was called for on 18.03.1998. On 28.07.1997 petitioner was relieved from the post of Additional Government Pleader. As the petitioner was relieved from the post, his successor is duty bound to produce stamps.
W.A.1415/2022
3
Hence, he submitted Exhibit-P2 explanation dated 1.6.2005. The claim petitioner produced necessary stamp on 21.03.1998, but the successor of the petitioner failed to produce stamp, and hence, the copy application was rejected on 24.03.1998.
2.2. The term of the petitioner as Additional Government Pleader was over by 28.07.1998 and he had handed over the copy application Register to his successor V. Muraleedharan Pillai and it was his duty to produce stamps when it was notified on 18.3.2008. So the petitioner cannot be penalized.
2.3. But, without accepting the explanation, Government have ordered that the petitioner is liable to pay 50% of the loss of Rs.72,000/- sustained by the Government. The quantum of loss is arbitrary fixed and the entire proceedings against the petitioner is arbitrary and illegal. Hence, this writ petition.
W.A.1415/2022
4
“10. When the Government initiates proceedings to levy damages against a Government Law Officer by recourse to Rule 18 of KGLOA Rules, and the officer concerned disputes the allegations leveled against him, it is essential that there must be an adjudication on his alleged default. The adjudication must also prove that the default was caused due to carelessness, negligence, or other misconduct in conducting a case or safeguarding Government interests. There must also be an adjudication on the quantum of loss or injury incurred or sustained by the Government which is directly relatable to the aforesaid default. 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.
‘nemo judex in causa sua’ which means, literally, "no-one shall be a judge in his own cause." It is a principle of natural justice that no person can judge a case in which he has an interest.
W.A.1415/2022
5
The rules of natural justice are intended to prevent such authority from doing injustice. One of the essential requirements of the principles of natural justice is that the authority deciding the issue must be impartial and should not have any personal interest in the controversy. Reference can be made to the decision in Uma Nath Pandey and Others v. State of Uttar Pradesh and Another [(2009) 12 SCC 40] and that of this Court in Philip v. Registrar of Co-operative Societies [2018 (3) KLT 347].
W.A.1415/2022
6
28.07.1997. Thus, the petitioner cannot be mulcted with the liability for the alleged long delay in obtaining a certified copy till 13.06.2001. These disputed facts that arose in the case could not have been determined by the Government and mulcted the petitioner with liability, without having recourse to a court of law.
In such circumstances, I find that Ext.P8 order dated 13.04.2009 imposing liability upon the petitioner for the alleged loss caused to the Government is illegal and without any basis. I quash Ext.P8. Consequently, Ext.P9 as well as the revenue recovery notices issued as Ext.P10 also shall stand quashed.
The original petition is allowed as above.”
appellants, on the following grounds:
(i) Writ court ought to have found that there is a specific method of adjudication and mode of recovery, contemplated in the KGLO Rules and Kerala Public Accountants Act, 1963.
(ii) The findings of the writ court to the effect that there is no neutral adjudication of the quantum of
W.A.1415/2022
7
amount ie, the loss sustained by the Government, is absolutely incorrect.
(iii) The damages were properly adjudicated by the authority under the relevant provisions of the Act and rules.
(iv) Exhibit P8 order passed by the Law Secretary, Government of Kerala is completely in tune with KGLO Rule as well as the Public Accountants Act 1963. As a responsible Law Officer of the State, the respondent/petitioner is expected to show diligent and carefulness in conducting the cases on behalf of the Government. In the instant case by the act of the respondent/ petitioner the Government sustained loss to the tune of Rs.72,033/-. The court below ought to have appreciated the fact that after the judgment in LAR Case No.296/94 on 31.01.1997, respondent/petitioner has failed to file application for certified copy of the judgment in time.
(v) It is humbly submitted that these vital aspects were omitted to consider by the learned Single judge and quashed Exhibit P8 order passed by the first respondent. The impugned judgment is lacking proper application of relevant provision of Act and Rule applicable to the instant case.
(vi) Hence it is most humbly prayed that this Court may be pleased to set aside the judgment of the learned Single judge and direct the respondent to pay the amount covered by the Exhibit P8 order.”
the Kerala Public Accountants Act, 1963, Mr. V. Tekchand, learned Senior Government Pleader submitted that the Government have the powers to realise the loss from the Public Accountant.
W.A.1415/2022
8
under:
GOVERNMENT OF KERALA LAW (B) DEPARTMENT
No.16365/B4/01/Law
Dated Thiruvananthapuram, 20-5-2005
From
The Secretary, Law Department.
To
Sri.M.M.Hussain, Advocate. (Former Additional District Government Pleader & Additional Public Prosecutor), Vanchiyoor P.O., Thiruvananthapuram.
Sub: LAR No.269/94 of Sub Court, Thiruvananthapuram-delay in forwarding copy of the Decree from the part of the Government Pleader – calling for explanation – reg
W.A.1415/2022
9
Sir,
It has been informed to the Government that though the case LAR No.269/94 of Sub Court, Thiruvananthapuram had been decreed on 31-1-97 when you had been discharging the duty of Additional District Government Pleader & Additional Public Prosecutor, you had not forwarded the copy of the Decree to the District Collector and that copy of the Decree was received in the office of the District Collector on 16-6-2001 only and that there occurred a delay of 4½ years in forwarding the copy of the Decree and that there occurred huge financial loss to the Government because of the failure occurred from your part in sending the copy of the Decree.
Your explanations, if any, in the above subject, shall be informed to the Government within 15 days from receipt of this letter. Otherwise proceedings shall be initiated against you under the presumption that you have no explanation to submit.
Yours faithfully,
T.K.SAMUEL VARGHESE Joint Secretary (For Law Secretary)”
Exhibit-P2, which is reproduced:
“From
M.M.Hussai, Advocate, (Former Govt. Pleader) Haseena Manzil, Vanchiyoor, Thiruvananthapuram.
To The Secretary, Law Department, Government Secretariat, Thiruvananthauram.
W.A.1415/2022
10
Sir,
Sub:- The delay occurred from the part of the Govt. Pleader in forwarding the copy of the Decree in LAR No.269/94 before Sub court, Thiruvananthapuram – clarification sought for – reg.
Ref:- Letter No.16365/134/01/Law dated 20/05/2005 from your office.
I had relinquished Govt. Pleadership on 28/07/97 and Sri.V.Muraleedharan pillai had assumed the charge in my place. The above said case had been decreed on 31/01/97. Upon verification of the Court records it was learned that notice had been issued on 18/3/98 for production of stamp as per A.No.1712/92 application filed by me.
The proceedings carried out by me in Govt. Cases in my capacity as Govt. Pleader had to be followed up by the succeeding GPS.
As there was no omission in this case from my part it is requested to relieve me from the above said proceedings of the Government.
Sd/ M.M.Hussain, Advocate.
Thiruvananthapuram 1-6-2005”
issued, which is reproduced:
“GOVERNMENT OF KERALA LAW (8) DEPARTMENT
No. 16365/B4/01/Law
Dated Thiruvananthapuram 3-3-2008.
From
The Secretary, Law Department.
W.A.1415/2022
11
To
Sri.M.M.Hussain, Advocate, (Former Additional District Government Pleader & Additional Public Prosecutor) Vanchiyoor.PO, Thiruvananthapuram.
Sir,
Sub:-LAR No.269/94 of Sub Court, Thiruvananthapuram – delay in filing copy application- realisation of the loss occurred to – Government therefrom submission of explanation – reg.
Ref:- Your explanation dated 1-6-2005 and 29-11-2005.
Your attention is invited to the above reference. Your explanation is not satisfactory and hence cannot be accepted.
The case LAR.269/94 of Sub Court, Thiruvananthapuram, had been decreed on 31-197. You had been discharging the duty of Government Pleader at that time. You had not filed copy application for the copy of the Decree in time. You filed the copy application only on 6-697. You had omitted to inform the fact of filing copy application to Sri V.Muraleedharan Pillai, who assumed charge as additional Govt. Pleader after you. Thereby, the Government have incurred a loss of Rs.72,033/-. Severe dereliction of duty has been occurred from your part in this matter.
Therefore, if you have any reason not to recover the said sum of Rs. 72,033/- from you, the same shall be convinced to the government within 14 days from receipt of this letter failing which proceedings shall be initiated to recover said amount from you under the presumption that you have nothing to submit any explanation.
Yours faithfully,
T.VASANTHAKUMAR Joint Secretary.”
W.A.1415/2022
12
“From
M.M Hussain, Advocate, Vanchiyoor, Thiruvananthapuram.
To
The Secretary, Law Department, Secretariat, Thiruvananthapuram.
Sir,
Sub:- LAR 269/94 on the file of Sub Court, Thiruvananthapuram – Recovery of the loss due to the delay in filing copy application – explanation – reg.
Ref:- 1. My explanations dated 1-6-05 and 29-1106. 2. That office letter No. 16365/B4/01/Law dated 3-3-08 (Received on 7-3-08)
In pursuance to the letter cited as 2, the Court Records and my office records pertaining to this case had been verified. am to submit the following explanation on its basis.
The above said LAR No.269/94 had been decreed on 31-1-97. I had filed application for copy of the Decree on 3-2-97. On subsequent enquiry, it was learned that the said application was missing in the Court. Hence, I filed a fresh application on 6-6-97 as No, A.1712/97. Thereafter, I had relinquished the post of Government Pleader on 28-7-97. I had handed over a list showing pending cases, disposal etc. and register for copy application to Sri V.Sreedharan Pillai who assumed the charge at the time of handing over charge.
W.A.1415/2022
13
Though the Judgment in this case had been pronounced on 31-1-97 the Decree was written only on 7-11-97 The Judge signed the same on 13-11-97 Applications to issue copies of the judgment and Decree in the said case to the claimant and the government (A.548 dated 11-297 by the claimant and A.1712 dat 6-6-97 for the government ) had been forwarded from the Record Section to the copying Section on 24-1197 Notice to produce stamp on these applications had been published there on 18-3-1998. The Claimant produced the stamp on 21-3-98. had informed the Govt. Pleader who succeeded me to produce the stamp for the government. But the copy application was dismissed on 24-3-98 since stamp was not produced for the government side in time. The claimant who produced stamp received the copy in May 98.
It was the present Govt. Pleader who had to produce stamp on the application filed by me. Every activities being carried on by me as Govt. Pleader had to be continued by the succeeding Govt. Pleader Stamp had been produced in all other applications filed by me. I don't know the reason why stamp was not produced in this case alone. Not only that the Govt. Pleader was not ready to file fresh application when the earlier copy application was dismissed. Sri.C.S.Balu, the Govt. Pleader who succeeded the said person filed applications (A.498/01 dt.19-2-01 and A.854/01 dt.24-3-01) and Sri. Rajagopalan Nair, Govt. Pleader filed application A.No.205/01 dt.22-01-01. Copies as per the said applications had been prepared on 2-6-01 and 25-4-02 and the Govt. Pleaders had received the same on 13-6-01 and 25-5-2002 respectively.
It is the Govt. Pleaders of the respective period who are to forward the opinion after receipt of copies of the Decree.
Though there occurred some delay in filing the second application in this case. the said delay
W.A.1415/2022
14
has not caused any loss to the government since notice to produce stamps for delivery of copies for the claimant and the government was published for the first time only on 18-3-98. If at all there occurred any loss it was because of the omission by my successor Govt. Pleader to produce stamps which led to the dismissal of the application.
For the aforesaid reasons there occurred no dereliction of duty from my side and hence I am not responsible for the loss incurred by the Government.
Therefore, it is prayed to abandon the decision to initiate action against me.
Yours Faithfully
Thiruvananthapuram M.M.Hussain 22-3-08 Former Govt. Pleader”
No.309/09/ Law dated 13.04.2009, which is reproduced:
“GOVERNMENT OF KERALA
SUMMARY
Law Department- Delay in forwarding copy of the Decree in LAR No. 269/94 of Sub Court, Thiruvananthapuram- Default from the part of the Govt. pleader Recover the loss occurred to the Government from the Govt. Pleaders – Orders issued
Law (B) Department
GO(Rt) No. 309/09/Law Thiruvananthapuram, Dated:13/4/09
Ref: 1. Letter No. K11-1866/99 dated 28-9-01 from the District Collector, Thiruvananthapuram.
W.A.1415/2022
15
ORDER
The District Collector has informed vide reference no.1 that the copy of LAR No.269/94 of Sub Court, Thiruvananthapuram which had been Decreed on 31-01-97 was received in the office of the District Collector only on 16-06-01 and that it caused the Government to incur financial liabilities and that the said loss has to be recovered from the Govt. Pleader concerned. The District Collector was instructed vide reference No.2 to assess and inform the loss occurred to the government due to the delay in producing copy of the Decree and the District Collector vide reference no.3 informed that there occurred a loss of Rs. 72033/-.
It was Sri.M.M.Hussain, former Additional Govt. Pleader who had appeared for the Government in the case LAR 269/94 as per the copy of the Decree of said case. But the follow up action of the said case from 2807-97 was conducted by Sri V.Muraleedharan Pillai, Additional Govt. Pleader. Therefore, explanations were called for from Sri. M.M.Hussain and Sri. V. Muraleedharan Pillai, former Additional Govt. Pleaders regarding the delay in producing the copy of the Decree in said case. It has been stated in the explanation submitted by Sri.M.M.Hussain that the LAR.269/94 was decreed on 31-01-97, that copy
W.A.1415/2022
16
application was filed on 03-02-97, that a fresh application was filed on 06-06-97 as said application was found missing on subsequent enquiry, that he relinquished Govt. Pleadership on 28-07-97 and that a list showing pending cases, disposals etc. was given to Sri. V. Muraleedharan Pillai, who assumed charge subsequently and that the Register for copy application was also given.
Upon seeking the opinion of the District Collector on the explanation made by Sri M.M.Hussain it was informed by the District Collector vide reference no.5 that there were some lapses from the part of Sri M.M.Hussain and that there occurred financial liability.
In the explanation submitted by Sri.V.Muraleedharan Pillai as per reference 6 letter the said person has informed that he had no information that the copy application in the said case filed by the former Govt. Pleader was pending, that there were several pending cases at that time that he had to manage the clerical matters by appointing a private clerk since no service of any officer was received from the government and that the pendency of the copy application and its dismissal went unnoticed by his clerk and hence he was not able to know said fact in time and therefore said facts had not been come up in his notice.
A hearing was conducted before the Law Secretary as Sri.M.M.Hussain informed that the fact of filing copy application had been informed in writing while Sri.V. Muraleedharan Pillai informed that it was not informed, and in order to ascertain the claim made by Sri. M.M. Hussain that the copy application was made twice.
The said Govt. pleaders have informed that it due to the insufficiency of staff that the date for producing stamp on the copy application for the Decree in said case went unnoticed in time, that about 50 cases were being decreed every day, that it was a single clerk who was attending all these cases and that it was the default occurred therefrom that led to
W.A.1415/2022
17
the failure in producing the copy of the Decree in LAR 269/94 and that it was not willful.
The LAR 269/94 was Decreed on 31-1-97. Sri. M.M.Hussain had served as Additional Govt. Pleader till 28-07-97. Sri.V.Muraleedharan Pillai had served as Additional Govt. Pleader from 28-7-97 to 27-7-2000. The District Collector Thiruvananthapuram has informed that copy application in the said case was filed only on 22-01-2002. Therefore, it is evident that there was default from the part of both the AGPs. But Sri. M.M.Hussain has stated in his explanation dated 29-11-2008 that copy application had been filed twice, on 03-02-97 and 06-06 97, during his tenure. Besides that the said person has alleged that the second application was dismissed for non production of stamp.
As required vide reference no.7 letter to Sri. M.M.Hussain to produce copies of the copy applications claimed to have been filed by him on 0302-97 and 06 06-97 the said person had produced the copy of the application dated 06-06-97 The said person also informed vide reference no.8 that the application dated 03 02-97 was not available as it was missing.
The Government has examined this matter in detail. It has been found that there occurred dereliction in duty from the part of Sri.M. M.Hussain and Sri V.Muraleedharan Pillai, former Additional Govt. Pleaders in producing copy of the Decree in LAR.269/94. Therefore it hereby ordered by instructing the District Collector, Thiruvananthapuram to initiate proceedings to recover a sum of Rs. 72,033/- being the loss incurred by the government equally from Sri.M. M.Hussain and Sri. V. Muraleedharan Pillai, former Govt. Pleaders.
By Orders of the Governor,
K.Sasidharan Nair Law Secretary Copy To:-
1 Sri .M.M.Hussain, Advocate (Former Addl.
W.A.1415/2022
18
Govt.Pleader and Addl. Public Prosecutor) Vanchiyoor, Thiruvananthapuram.
2 Sri. V. Muraleedharan Pillai, Advocate Former Addl. Govt. Pleader and Addl.Public Prosecutor) Vanchiyoor, Thiruvananthapuram.”
District Collector, Thiruvananthapuram, reads thus:
“K11-18666/99 Collectorate, Civil Station Kudappanakkunnu, Thiruvananthapuram Date: 11/5/09
District Collector, Thiruvananthapuram.
To
Sri. M.M. Hussain, Advocate, (Former Additional District Government Pleader & Additional Public Prosecutor), Vanchiyoor P.O., Thiruvananthapuram.
Sir,
Sub:- LAR No.269/94 of Sub Court, Thiruvananthapuram- delay in filing copy application – realisation of the loss occurred to Government therefrom-submission of explanation – reg.
Ref:- GO(Rt.) No.309/09 (Law), Tvm., Dated 13/4/09.
Attention is invited to the above reference. The copy of the Decree in LAR No.269/94 of Sub Court, Thiruvananthapuram which had been decreed on 31/1/97 was received in this office only on 16/06/2001. It has been decided as per the enquiry conducted by the Law Secretary to recover a sum of Rs.72033/ being the loss occurred to the government equally from Adv.Sri.M.M.Hussain and Adv.Sri.V.Muraleedharan Pillai who were the Government Pleaders at that time. The amount as per said order shall be remitted at the earliest and inform the matter. A copy of the
W.A.1415/2022
19
Government order is forwarded herewith.
Yours Faithfully, Junior Superintendent (For Collector)”
“3. Statement of particulars of claim to be drawn up by Collector or Head of Department .—(1) Whenever it appears to the Collector or the Head of a Department of the Government or other authority or institution notified under clause (b) of section 2, under whom a public accountant is or was serving, that the Government or such authority or institution have or has a claim on such public accountant for moneys, securities for money, documents or other
W.A.1415/2022
20
property, he shall draw up a statement of the particulars of the said claim, and, if he is not a Collector, may send the statement to the Collector in whose jurisdiction such accountant is or was employed.
Explanation: For the purposes of this subsection,-
(i) a Government Law Officer appointed to conduct cases before any court (other than the High Court of Kerala or the Supreme Court), tribunal or other authority shall be deemed to be a public accountant serving under the Collector; and
(ii) the Advocate General shall be deemed to be the Head of a Department of the Government, under whom a Government Law Officer appointed to conduct cases in the High Court of Kerala or the Supreme Court is or was serving.
(2) The Collector when he has himself recorded a statement as aforesaid may, and on receipt of such a statement from the Head of a Department of the Government, other authority or institution shall by writing under his official seal and signature, require the moneys, securities for money, documents or other property, to be delivered either immediately to the person bearing the said writing or to such other person on such date and at such place as the writing may specify. Such notice of demand may be served on the public accountant in the same manner as a summons is served on a defendant under the Code of Civil Procedure, 1908.
(3) If the public accountant does not satisfy the demand, but appears and objects to the claim wholly or in part, the Collector shall enquire into the objection and record a decision.”
W.A.1415/2022
21
“4. Realisation of money and recovery of securities, etc., from public accountant .—If the public accountant does not object to the claim and does not satisfy the demand, or if, after the Collector has enquired into his objection and passed a decision that there is a claim against him, he does not satisfy the claim as set forth in such decision, the Collector may, either by himself or through the Collector in whose jurisdiction such public accountant resides or owns property, take proceedings to realise moneys or value of property due by such public accountant in the same manner as arrears of public revenue due on land, and, for the purpose of recovering securities for money, documents or other property, may issue a search warrant and exercise all such powers with respect thereto as may be lawfully exercised by a Magistrate under the provisions of the Code of Criminal Procedure, 1898.”
that the entire proceedings have been initiated only by the Government, and consequently orders were passed. The whole procedure followed by the Government is not in accordance with the above said statutory provisions. District Collector, Thiruvananthapuram, has only implemented the Government order.
W.A.1415/2022
22
arrived at, as rightly observed by the writ court. In the impugned judgment, there is nothing on record to show that loss was sustained to the Government and, if sustained, in what manner.
For the reasons stated supra, we do not find any error or other legal infirmities, in the impugned judgment, warranting interference, in appeal. Hence, writ appeal is dismissed. No costs.
Sd/S. Manikumar, Chief Justice
Sd/Shaji P. Chaly, Judge
sou.xxx
3 issues framed by the court
Whether the Government could itself levy damages on a former Government Law Officer for alleged loss, without adjudication by an independent authority.
Whether the proceedings for recovery of the alleged loss were in accordance with the Kerala Public Accountants Act, 1963.
Whether there was any material to show that loss was sustained by the Government and, if so, in what manner.
2 provisions across 1 enactments
State of Kerala
The District Collector, Civil Station, Kudappanakkunnu, Thiruvananthapuram
The Property Tahsildar (Revenue Recovery), Taluk Office, Thiruvananthapuram
M.M. Hussain
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
