Dismissed

Suresh Babu v. Vettoor Grama Panchayat

Kerala HC4 Nov 2022WP(C)/2336/2012

Case brief

AI extract

What is this about?

This writ petition challenged demand notices issued by a Grama Panchayat to recover an amount based on Local Fund Audit reports. The court held that the audit reports served as valid notices of surcharge, compliance with statutory procedure was established, and the demand for recovery was lawful.

What did the court decide?

The writ petition is dismissed as the demand notice and recovery action were in accordance with law.

Suresh Babu Vs Vettoor Grama Panchayat — Public Procurement and Tenders | Kerala HC (2022)

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W.P.(C) No. 2336/2012

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: 1 :

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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 SHAJI P.CHALY

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FRIDAY, THE 4^TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944

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WP(C) NO. 2336 OF 2012

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PETITIONER/S:

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SURESH BABU AGED 52 YEARS S/O.SUGATHAN, THUNDUVILA VEEDU, VILAMBU BAGHAM, NEDUNGANDA.P.O.

¶10

BY ADV SRI.R.T.PRADEEP

¶11

RESPONDENT/S:

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1 VETTOOR GRAMA PANCHAYAT REPRESENTED BY THE SECRETARY, MEL VETTOOR.P.O., PIN.695 312, VARKALA, THIRUVANANTHAPURAM.

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2 THE SECRETARY VETTOOR GRAMA PANCHAYAT(SPECIAL GRADE), VETTOOR GRAMA PANCHAYAT OFFICE, MEL VETTOOR.P.O., PIN.695 312, VARKALA, THIRUVANANTHAPURAM.

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3 ADDL.R3 IMPLEADED: THE DIRECTOR OF PANCHAYATS, LOCAL SELF GOVERNMENT DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM. (ADDL.R3 IS SUO MOTU IMPLEADED AS PER ORDER DATED 13.08.2014 IN W.P.© NO. 2336/2012) R1 & R2 BY SMT. MINI M. NAIR R1 & R2 BY ADV SRI.C.R.SIVAKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.10.2022, THE COURT ON 04.11.2022 DELIVERED THE FOLLOWING:

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SHAJI P. CHALY, J.

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--------------------------------------------------------W.P.(C). No. 2336 of 2012

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--------------------------------------------------------Dated this the 4^th day of November, 2022.

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JUDGMENT

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This writ petition is filed challenging Exhibits P3 notice and P4 demand dated 22.11.2011 and 12.12.2011 issued by the Secretary of the Vettoor Grama Panchayat, respondent No. 2, to recover an amount of Rs.4,97,255/- on the basis of the audit report for the periods 2005-2006 and 2007-2008.

¶22

Brief material facts for the disposal of the writ petition are as follows:

¶23

Petitioner, convener of a Beneficiary Committee, executed two contract works of Vettoor Grama Panchayat, respondent No.1, namely (1) SGRY, AMTTI (Special)—Renovation of Vadakkaeppally Pathway; and (2) SGRY, AMTTI-Renovation of Ashukkanvila Pathway. According to the petitioner, the work had been completed adhering to the terms and conditions of the contract which is supervised and verified by the Panchayat engineer. It is also stated that the final bill was drawn as per the measurements recorded in the M-book and the amount due under the final bill was also released to the petitioner.

¶24

It seems, the Local Fund Audit constituted as per the

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W.P.(C) No. 2336/2012 : 3 :

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Kerala Local Fund Audit Act, 1994 and the Kerala Local Fund Audit Rules, 1996 (‘Rules, 1996' for short) raised objections to the conduct of the work No.1 referred to above, to the effect that the petitioner was neither a resident of the ward where the work was executed nor a beneficiary of the work; that the constitution of the Beneficiary Committee and election of convener appears to be bogus; the petitioner was given 24 Metric Tons of rice as mobilization advance on 10.11.2004; the rice was distributed before the formation of the project and obtaining administrative sanction; and that the disbursement of rice as part of wages to workers is not certified by the concerned authorities by Muster Role and Daily Labour Report. Therefore, the petitioner is entitled only to 25% of the estimated cost, which comes to Rs.56,250/-.

¶27

Further, the price of one kilogram of rice in terms of SGRY rate is Rs.6.2 and hence, the value of 24000 Kg. of rice is Rs.1,48,800/-. The petitioner received mobilization advance for exceeding the permissible limit. The market price of 1 kilogram of rice is Rs.13.6 and accordingly, the market value of the rice distributed to the petitioner is Rs.3,26,400/-. The final bill was drawn based on the measurements in the M -Book. The value of the rice distributed to the petitioner is reckoned in the final bill at SGRY rate of Rs.6.2 per Kg. The permissible quantity of rice to be

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W.P.(C) No. 2336/2012 : 4 :

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distributed to the petitioner was 3137 Kg. The excess quantity of 20863 Kg. at the market rate of Rs.3.6 per Kg. comes to Rs.2,83,737/- and the petitioner was paid an amount of Rs. 59,230/- as part of final bill and therefore, the excess amount in the hands of the petitioner is Rs.3,42,950/-.

¶30

It is also submitted that the value of the work done as per the measurement in M-book is Rs.2,10,413/-. Since the rice entitled by the petitioner is 3137 Kg. at the rate of Rs. 6.2 per kg., which comes to Rs.19449/-, the same has to be deducted from the value of the work done as per the measurements in the M-book. (i.e., Rs.2,10,413/- minus Rs.19,449/- = Rs.1,90,964).

¶31

Therefore, the excess amount in the hands of the petitioner, according to the auditor’s report, is Rs.1,51,986/(Rs.3,42,950 minus Rs.1,90,964/-= Rs.1,51,986/-). Therefore, the said amount shall be realized from the concerned officers, if it is unable to recover from the petitioner. The report of the Local Fund Audit with respect to work No.1 is produced as Exhibit P1.

¶32

The Local Fund Audit has raised the following objections to the work No2:

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The petitioner was distributed with 21 Metric Tons of rice on 10.11.2004 at a time when no administrative or technical sanction or approval of DPC was obtained. The Beneficiary Committee was

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constituted and the petitioner was elected as convener on 22.02.2004 for execution of the work for the financial year 20052006. The contract being executed in violation of the guidelines, an enquiry at administrative level is recommended. The estimated cost of work No.2 as per the administrative and technical sanction is Rs.2,00,000/-.

¶36

The petitioner was distributed with 31 Metric Tons of rice and 17.5 Metric Tons of wheat and paid an amount of Rs.56819/-; whereas, the actual value of the work is Rs.1,78,113/-. The petitioner was distributed with food grains at a subsidized rate of worth of Rs.2,88,450/-; Thus, he received an amount of Rs.3,45,269/- for the actual value of Rs.1,78,113/-. Therefore, the loss of amount to the Central and State Government shall be realized by the person responsible for the loss. Exhibit P2 is the copy of the local fund audit report with respect to work No2.

¶37

The case projected by the petitioner is that with the oblique motive to shield its officials, Exhibit P3 notice was issued by the second respondent calling upon him to remit an amount of Rs. 4,97,255/-. Exhibit P4 is the demand notice issued by the Secretary of the Grama Panchayat.

¶38

At the outset, it is made clear that Exhibit P3 is the notice issued by the Secretary and Exhibit P4 is the demand raised by the

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Secretary and there are no proceedings under the provisions of the Kerala Revenue Recovery Act.

¶41

According to the petitioner, he is not liable to pay the said amount, since the amounts specified in the notice and demand are not fastened on the petitioner by the auditors as per the Exhibits P1 and P2 reports in terms of Section 215 of the Kerala Panchayat Raj Act, 1994 (‘Act, 1994' for short).

¶42

It is also contended that the petitioner was not called upon by the auditor and provided him an opportunity of being heard as contemplated under Section 215(9) of the Act, 1994, which is a mandatory requirement before surcharging a person and hence, the loss quantified by the auditors cannot be fastened on the petitioner.

¶43

It is further contended that the recommendation of the auditor is for an enquiry at the administrative level to find out the officials at fault and it is for the auditor to take a decision in the matter. It is also contended that the respondents with the mala fide object to scuttle the departmental enquiry, proceeded against the petitioner and the audit reports do not have any complaint about the nature of the work executed. Various other contentions are also raised.

¶44

The Secretary of the Vettoor Grama Panchayat has filed a detailed counter affidavit for and on behalf of the Secretary as well

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as the first respondent Panchayat. It is stated that the petitioner has not made the auditor a party to the writ proceedings and therefore, the writ petition is bad for non joinder of necessary parties. The Local Fund Audit raised an objection to the aforesaid works and that the petitioner was selected on the basis of the recommendation and concurrence of the Beneficiary Committee and the ward member of that area.

¶47

It is also pointed out that the final bill was sanctioned on the basis of the work completion and the measurement in the M- Book. The Local Fund Audit raised objections with respect to the second work done by the petitioner and the local fund audit admittedly found that the loss of amount to the Central and State Government shall be realized from the persons responsible for the loss, and it was based on the audit report and the objection, Exhibits P3 and P4 notices were issued against the petitioner by the first respondent.

¶48

It is further pointed out that the objection of the audit authorities was considered by the Grama Panchayat and the Secretary is duty bound to issue Exhibit P3 notice to the petitioner and the demand to pay back the amount of Rs. 4,97,255/- with interest. However, it was due to the inaction in complying with the demand, the Secretary issued Exhibit P4 demand notice to the

¶49

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petitioner. Further, as per the agreement condition, the petitioner is liable to complete the work within the stipulated time mentioned in the agreement, and in the instant case, the petitioner was bound to complete the work within the period 2006-2007. But, he finished the work only during 2007-2008. Therefore, as per the agreement conditions, if the work is not completed within the time, the convenor shall be liable to pay back the excess amount with interest to the Panchayat.

¶51

That apart, it is contended that Exhibits P1 and P2 audit reports are mandatory and the audit authorities are duty bound to audit the amounts spent by the Panchayat. The petitioner never submitted the Income and expenditure statements, bills, vouchers, muster rolls, meeting minutes etc. to the Panchayat till then. The convener is duty bound to submit the above materials to the Panchayat. Therefore, according to the Panchayat, the petitioner is liable to pay the amount mentioned in Exhibit P4 demand based on the agreement executed by and between the petitioner and the first respondent. It is also stated that as per the agreement executed, he alone is liable to pay back the excess amount found by the audit authorities.

¶52

I have heard the learned counsel for the petitioner Sri. R.T. Pradeep and Smt. Mini M. Nair and Sri. C.R. Sivakumar for the

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Panchayat and its Secretary and learned Senior Government Pleader Sri. Joby Joseph, and perused the pleadings and materials on record.

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The learned counsel for the petitioner as well as the learned counsel appearing for the Grama Panchayat has advanced arguments on the basis of the contentions advanced above.

¶56

The paramount contention advanced by the petitioner is that the stipulations contained under Section 215 of the Act, 1994 are not complied with by the Panchayat. Section 215 of the Act deals with the accounts and audit. Sub-Section (1) thereto specifies that the Panchayat shall maintain such books of accounts and other books in relation to its accounts and prepare an annual statement of accounts in such form as may be prescribed. Various other formalities are prescribed in respect of the accounts of receipt, expenditure etc.

¶57

Sub-Section (4) thereto stipulates that the auditors shall conduct a continuous audit of the accounts of the Panchayat and shall after completing the audit for a year or for any shorter period or for any transaction or series of transactions, send a report to the Panchayat concerned and duplicate copies thereof to the officer authorised by the Government in that behalf.

¶58

As per sub-Section (5), the auditors shall specify in the

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report under sub-section (4), all cases of irregular, illegal or improper expenditure or of failure to recover moneys or other property due to the Panchayat, or any loss or waste of money or other property thereof caused by neglect or misconduct of the officer and authorities of the Panchayat.

¶61

The auditor, as per sub-Section (6), is duty bound to report on any other matter relating to the accounts of the Panchayats as may be required by the Government, to the officer authorised by the Government in that behalf.

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As per sub-Section (7), the Panchayat is duty bound to remedy any defect or irregularity pointed out by the auditors and report the action taken to the officer authorised by the Government in that behalf.

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The case projected by the petitioner is that, as per subSection (9), the auditors are duty bound to give a reasonable opportunity to the person concerned to explain his case, disallow every item of expenditure incurred contrary to law and surcharge the same on the person incurring, or authorising the incurring of, such expenditure and may charge against any person responsible therefore the amount of any deficiency, loss or unprofitable outlay occasioned by the negligence or misconduct of that person or of any sum which ought to have been but is not brought into account by

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that person and shall, in every such case certify the amount due from such person. The proviso thereto makes it emphatic that no surcharge under the sub-Section shall be made after a period of four years from the date on which the expenditure in question was incurred.

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Sub-Section 10 specifies that the auditors shall state in writing, the reasons for their decision in respect of every disallowance, surcharge or charge and a copy of such decision shall be served on the person against whom it is made in the manner laid down for the service of summons in the Code of Civil Procedure, 1908.

¶67

Sub-Section (11) stipulates that any person aggrieved by any disallowance, surcharge or charge may, within fourteen days after the date of service on him of the decision of the auditor, make an application to the district court to set aside such disallowance, surcharge or charge and the court, after taking such evidence as is necessary may confirm, modify or remit such disallowance, surcharge or charge with such orders as to costs as it may think proper in the circumstances.

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Sub-Section (13) further provides that from the decision of an order under sub-Section (11), an appeal shall lie to the High Court. Therefore, it can be seen that there is a clear cut procedure

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contained under Section 215 of the Act, 1994 to conduct audit and to prefer appropriate proceedings by the aggrieved person. It is an admitted fact that the audit was conducted by the auditor after issuing notice to the Secretary of the Grama Panchayat. After conducting the audit, reports were drawn and admittedly, the reports were served on the petitioner which are produced as Exhibits P1 and P2 respectively.

¶71

Therefore, the contention advanced by the petitioner that before issuing Exhibit P3 notice dated 22.11.2022 by the Panchayat and Exhibit P4 directing the petitioner to pay the amount, the petitioner was not addressed about the auditor’s report, cannot be said to be correct, basically for the reason that the petitioner himself has produced Exhibits P1 and P2 audit reports along with the writ petition; and there is no case for him anywhere in the writ petition that he is not served with Exhibits P1 and P2 in the manner prescribed under Section 215 of the Act, 1994.

¶72

In the above context, a reference to some of the provisions of the Kerala Local Fund Audit Act, 1994 would be relevant:

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The term ‘concurrent audit’ is defined in Section 2(b) to mean continuous audit of accounts of a local authority by auditors specially appointed by the Government by virtue of the powers

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conferred on them by the relevant enactments. ‘Detailed audit’ is defined to mean an audit of accounts of the entire transactions for the whole year or for the period specified by the Director of the Local Fund Audit.

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Kerala Local Fund Audit Act, 1994 is an Act constituted to provide for and to regulate the audit of the local funds under the management or control of certain local authorities in the State of Kerala. The term ‘surcharge’ is defined under Section 2(l) to mean an amount for which the auditor, in exercise of the powers vested in him under the Act, makes a person liable for loss, waste, misapplication or misappropriation of any money or other property belonging to any local authority.

¶77

‘Audit of accounts’ is dealt with under Section 4 of the Audit Fund Act, 1994, and sub-Section (1) thereto specifies that notwithstanding anything contained in any other law for the time being in force, but subject to the provisions of the Comptroller and Auditor General, (Duties, Powers and Conditions of Service) Act, 1971 (Central Act 56 of 1971), the Director shall, in the manner provided by or under the Act, conduct the audit of accounts of a local authority or a local fund included in the Schedule.

¶78

Section 7 deals with the manner in which audit is to be conducted, and it stipulates that the auditor shall conduct the audit

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annually and at such intervals as may be decided by the Director or may conduct concurrent audit of such of those local authorities as are found necessary under the provisions of any law governing them or as may be decided by the Director in consultation with the Government.

¶81

Section 9 deals with the liability of local authorities to prepare and present accounts for audit, and sub-Section (1) stipulates that the accounts of a local authority or a local fund included in the Schedule relating to a financial year shall be prepared or caused to be prepared by the Executive authority, in such form and in such manner as may be prescribed, and presented for audit within four months of the close of that financial year.

¶82

Section 11 dealing with ‘the power of auditor to require production of accounts and attendance of persons’, reads thus:

¶83

“11. Power of auditor to require production of accounts and attendance of persons .-(1) For the purpose of an audit under this Act, an auditor may,— (a) require in writing, the production at the place of audit, such vouchers, statements, returns, correspondences, notes or any other -documents the perusal or examination of which he believes to be necessary for the elucidation of the accounts; (b) require in writing, any employee of the local authority accountable for or having the custody or control of such vouchers, statements, returns, correspondences, notes or other documents or any person having directly or indirectly, any share or interest in any contract with or under the local authority to appear in person

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before him at the head office of that local authority or at the place of audit and answer any question and require any person so appearing to make and sign a declaration with respect to such document or to prepare and furnish any statement relating thereto; …”

¶87

Therefore, it can be seen that the auditor needs to summon any officer of the Panchayat or any person in connection with any contract so as to secure necessary evidence for finalising the audit report. Which means, if the officer of the Panchayat has produced the required documents in contemplation of the law before the auditor, he need not summon the contractor or any other person.

¶88

So also, it is significant to note that the contents of the audit reports shall be in terms of Section 14 of the said Act and the said provision makes it clear that the auditor shall include in the audit report a statement of (a) every payment which appears to him to be contrary to law; (b) the amount of any deficiency or loss which appears to have been caused by the negligence or misconduct of any person; (c) the cases of misappropriation or misutilisation of the local fund; (d) the amount, if any, received which is required to be brought into account but has not been brought into account by any person; and (e) any other material impropriety or irregularity which he has observed in the accounts.

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The stipulations contained under Section 14 would show that the contents of the audit report is statutorily prescribed. Which thus means, the auditor needs to be satisfied with all the documents required for finalizing the audit available before the auditor, and there is no mandatory requirement that any specific person is to be allowed to complete the audit report. Section 15 deals with ‘the procedure to be followed after getting the report of the Director under Section 13’, and it prescribes the manner in which the audit report is to be dealt with.

¶91

Section 16 makes it clear that the auditor is duty bound to surcharge illegal payments and the loss caused by negligence or misconduct, and sub-Section (1) stipulates that the auditor may disallow any item which appears to him to be contrary to law and surcharge the same against the person making or person or body of persons authorizing the making of the illegal payment and may charge against any person responsible therefor, the amount of any deficiency or loss caused by the negligence or misconduct of that person or any sum received which ought to have been, but has not been brought into account by that person and shall, in every such case, certify the amount due from such person.

¶92

Sub-Section (2) thereto stipulates that the auditor shall state, in writing, the reasons for his decision in respect of every

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disallowance, surcharge or charge and shall communicate the same by registered post to the person against whom it is made together with an extract of the relevant objection in the audit report.

¶95

Sub-Section (3) specifies that any person aggrieved by disallowance, surcharge or charge made may, within one month after he has received or been served with the decision of the auditor, apply to the District Court, to set aside such dis-allowance, surcharge or charge and the court, after taking such evidence as is necessary, may confirm, modify or remit such disallowance, surcharge or charge.

¶96

Sub-Section (4) makes it emphatic that every sum certified to be due from any person by the auditor under the Act shall be paid by such person to the Executive authority within one month after the intimation to him of the decision of the Director unless, within that time, such person has filed an application before the District Court against the decision under sub-section (3) and such amount, if not so paid, or such amount as the District Court shall declare to be due, shall be recoverable under the provisions of the Kerala Revenue Recovery Act, 1968 (15 of 1968) for the time being in force, as if it were an arrear of public revenue due on land.

¶97

I have dealt with the provisions of the Kerala Local Fund Audit Act, 1994 elaborately, in order to identify as to whether the

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: 18 :

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contentions advanced by the petitioner is sustainable under law.

¶101

The discussions made above would make it clear that the audit reports were served on the petitioner in contemplation of the provisions of law. The petitioner has no case that reasons were not assigned in Exhibits P1 and P2 audit reports. He has also no case that after receipt of the report, he has approached the District Court within the time period prescribed thereunder.

¶102

If that is the case, after the service of the audit report, the executive authority is vested with powers to serve notice of demand directing the person who is responsible for the loss to pay the amount to the executive authority.

¶103

Therefore, on a conjoint reading of Exhibits P1 and P2 audit reports and Exhibit P3 notice and Exhibit P4 demand, it is so patent and clear that there is clear compliance of the provisions of Section 215 of the Act, 1994 and the provisions of the Kerala Local Fund Audit Act, 1994.

¶104

From the facts and circumstances, it is clear that the petitioner, who had to complete the work during 2006-2007, completed the work only during 2007-2008. In that context, a reference to some of the provisions of the Rules, 1996 is worthwhile. Rule 20 deals with ‘the procedure for charge/surcharge proceedings’. Sub-rule (4) thereto stipulates that the

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charge/surcharge notices (in duplicate) along with extracts of the relevant objections in the audit report shall be communicated to the person against whom it is made by registered post with acknowledgment due. Sub-Section (7) thereto stipulates that unless the person served with a charge/surcharge notice remit to the Executive authority concerned the amount involved in the notice and furnish the details thereon to the Director within two months, from the date of receipt of the notice, or furnish satisfactory explanations, such person shall be served with charge/surcharge certificate in Form X and X (A) appended to the Rules, with copy to the Executive Authority concerned.

¶107

Sub-Section (11) of Section 20 states that the charge/surcharge certificate shall be served on the persons responsible within a period of four months from the date of receipt of the charge/surcharge notice by such person. Sub-Rule 13 categorizes that every sum charged/surcharged by the Director on any person shall be remitted by such person to the Executive Authority within one month from the date of receipt of such charge/surcharge certificate, unless within that time a such person applies the District Court against the decision of the auditor.

¶108

Rule 21 stipulates that the person responsible and the extent of responsibility of such person for the loss detected by the

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auditor during the course of audit of accounts of a local authority/local fund shall be fixed correctly by the auditor at the time of audit by verifying the records concerned, the name(s) of the person(s) held responsible shall be incorporated in the -audit report as well as in the proposal for charge/surcharge action to be forwarded to the Director.

¶111

Therefore, it is quite clear and evident that the contentions advanced by the petitioner that there was no surcharge notice issued to the petitioner cannot be sustained, especially due to the fact that it is clearly mentioned in Exhibits P1 and P2 report that loss is sustained due to the payment made or materials supplied to the convenor of the beneficiary committee. The conclusions so arrived at in the audit report specifying the details with respect to the loss suffered is the charge or surcharge, and there is no requirement at all in the Kerala Audit Fund Act, 1994 or the Rules, 1996 to issue a surcharge certificate, since the provisions dealt with above would make it clear that it need be a surcharge or a surcharge certificate.

¶112

In that view of the matter, I am of the considered opinion that the action initiated by the Secretary of the Grama Panchayat issuing Exhibit P3 notice and Exhibit P4 demand are in accordance with law. It is also equally important to note that on 31.01.2012,

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while issuing notice on admission, Exhibit P4 demand was stayed for a period of one week, and the same which was extended on 21.05.2012 as follows, is still in force.

¶115

‘Admit. Interim order will continue.”

¶116

Upshot of the above discussion is that the petitioner has not made out a case of arbitrariness or illegality in the action initiated by the Secretary of the Grama Panchayat to recover the amount on account of Exhibits P1 and P2 audit reports and the surcharge thereto.

¶117

Writ petition fails and accordingly, it is dismissed.

¶118

sd/- SHAJI P. CHALY, JUDGE.

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APPENDIX

¶123

PETITIONER’S EXHIBITS:

¶124

EXT.P1 TRUE COPY OF THE LOCAL FUND AUDIT REPORT WITH RESPECT TO WORK NO.1. EXT.P2 TRUE COPY OF THE LOCAL FUND AUDIT REPORT WITH RESPECT TO WORK NO.2. EXT.P3 TRUE COPY OF THE NOTICE DATED 22.11.2011 BY THE SECOND RESPONDENT TO THE PETITIONER. EXT.P4 TRUE COPY OF THE RR NOTICE DATED 12.12.2011 BY THE SECOND RESPONDENT.

¶125

RESPONDENTS’ EXHIBITS: NIL

¶126

True Copy

¶127

PS to Judge.

¶128

Suresh Babu v. Vettoor Grama Panchayat

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Suresh Babu v. Vettoor Grama Panchayat

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