ABDUL MAJEED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE challenge in this O. P. is against Exts. P-1 and p-1 (a ). By Ext. P-1 the 2nd respondent has directed the petitioner either to pay the amounts specified in Ext. P-1 (a) within 30 days of the receipt of the notice or to state the petitioner's objections to all or any of the claims within the said period of 30 days. THE petitioner was the Assistant Director of archives. He retired from service on 31st October 1980. THE gravamen of the charge in Exts. P-1 and P-1 (a) is that the petitioner misappropriated and defalcated Government money to the tune of Rs. 1,81,609. 85. Exts. P-1 and P-1 (a) are challenged on many grounds. It is stated that the Kerala Public accountant Act, 1963 is inapplicable in the case of the petitioner. THE petitioner has also a plea that the amount has been specified in Ext. P-1 (a) without any basis. THEre was no proper adjudication or quantification. It is also stated that the 2nd respondent mechanically adopted the audit report and specified the amount in Ext. P-1 (a) without applying his mind. 'the irregularities are during the period of July 1976 to October 1980, and the long lapse of time is said to be a factor, which acts to the detriment of the petitioner in submitting a proper explanation. It is also stated that Exts. P-1 and P-1 (a)do not give sufficient information to the petitioner to state his objections and the opportunity provided by Ext. P-1 is nothing but a farce or empty formality. On these and other grounds the petitioner attacks Exts. P-1 and p-1 (a) as unauthorised and illegal. THEre is also a prayer for the issue of writ of mandamus to the 2nd respondent not to take any step to realise the amount from the petitioner as per Ext. P-1.

(2.) NO counter-affidavit has been filed in this case. But even on the petitioner's own showing, it is not as if the petitioner can stall the proceedings initiated under Exts. P-1 and P-1 (a ). By Ext. P-1 the petitioner has been afforded an opportunity either to pay the money specified in Ext. P-1 (a) or to state his objections, Ext. P-1 was passed as early as 13th september 1984. The petitioner has not filed his objections to Ext. P-1. On the other hand he has requested the 2nd respondent to furnish him with certain records, since, according to him, the details contained in Ext. P-1 (a) are not sufficient to enable him to file his objections. The 2nd respondent, by Ext. P-3, informed the petitioner that the records mentioned in the petitioner's petition are not available with him, but they are available with the Director of Archives, Trivandrum, who has been requested to make the relevant records available for the perusal of the petitioner. The petitioner was asked to appear before the Director of Archives, Trivandrum, within 15 days from the date of receipt of Ext. P-3 dated 28th May 1986 during the office hours for perusing the records. It does not appear that the petitioner availed the opportunity afforded to him as per Ext. P-13. On the other hand, he wrote to the 2nd respondent that he was ill and was not in a position to appear before the director of Archives to pursue the records. The petitioner' insisted by Ext. P-4 dated 2nd July 1986, that the records should be made available to him. The 2nd respondent by Ext. P-5, dated 22nd July 1986, informed the petitioner again that he may obtain copies from the Office of the Director of Archives, trivandrum. The petitioner again stuck to his demand and replied to the 2nd respondent by Ext. P-6 that the audit report and the other records should be made available to him. The records produced by the petitioner, show that opportunity was afforded to him to peruse the records from the Office of the director of Archives. Certainly, the petitioner is entitled to a fair opportunity to file his objections. So, he is entitled to be told or permitted to peruse through the essential or basic materials on the basis of which the liability is sought to be fastened on him. His main grievance is that such basic materials are not discernible from Exts. P-1 and P-1 (a) and that disables him from filing his objections. An opportunity should be given by the 2nd respondent to the petitioner to peruse the relevant or basic documents. It was so afforded by Exts. P-3 and P-5. It passes one's comprehension, as to how it is open to the petitioner to dictate to the 2nd respondent that the document should be made available at his door as he is not able to attend or peruse the documents from the Office of the Director of Archives. All that the petitioner is entitled to, is to have an opportunity for perusal of the essential or vital documents, on the basis of which Exts. P-1 and P-1 (a) are founded, to enable him to file his objections. He may himself peruse the documents and take extracts or depute one of his agent or representatives to do so, if he is seriously ill. Beyond that, the petitioner cannot dictate that, the documents, which he wants, should be supplied to him at his door. The principles of natural justice do not compel the 2nd respondent to furnish the copies of the documents, which the petitioner wants, at his door. All that is essential is to afford the petitioner an opportunity of being heard or to peruse relevant materials either by himself or by his duly appointed agent. That has been afforded by the 2nd respondent by Exts. P-3 and P-5 communications. It is surprising that the petitioner, instead of availing the opportunity afforded to him, has chosen to rush to this Court assailing Exts. P-1 and P-1 (a) He failed to avail the opportunity afforded to him, without lawful excuse. In such circumstances, the respondents will be in order to proceed ahead with Exts. P-1 and P-1 (a ). If a party to a dispute, who had been afforded an opportunity to present his case, lost the opportunity, through his own fault or through the fault of his representatives or counsel, he cannot complain that he had been the victim of procedural impropriety or that natural justice has been denied to him. See roshan Lal v. Ishwar Das A. I. R. 1962 S. C. 646 pp. 655 and 656, Para. 10; and al-Mehdawi v. Secretary of State 1989 (3) All ER. 843 H. L. Though the respondent could implement Exts. P-1 and P-1 (a), straightaway, taking into account the totality of the circumstances and the fact that the O. P. was admitted by this Court and was pending for over three years, I direct that the petitioner should be given a further opportunity to peruse through the documents, if the petitioner makes a written request therefor to the 2nd respondent within 30 days from today. The 2nd respondent shall refer to exts. P-3 and P-5 and afford the petitioner an opportunity to peruse through the relevant or vital documents, on which Exts. P-1 and P-1 (a) are founded. If no such written request is made by the petitioner to the 2nd respondent within 30 days, I make it clear that the respondents are at liberty to enforce Exts. P-1 and P-1 (a) and proceed further in accordance with law. The O. P. is disposed of as above. . .