V.P. MOHAMMED Vs. DIST. COLLECTOR

JUDGEMENT

(1.) The petitioner, who was once a Lower Division Typist in the Block Development Office, Manjeri, was ultimately dismissed from service as per the order dated 26th June 1976 of the 1st respondent, the District Collector, Malappuram with effect from 24th March 1966 on the ground of misconduct of misappropriation proved against him. It is not necessary to state in detail as to what transpired later except to note that the writ petition, O.P. No. 2147 of 1977 filed by the petitioner to challenge the order of dismissal was dismissed and that dismissal was confirmed by a Division Bench of this Court declining to entertain the writ appeal, W.A. No. 123 of 1980, filed against the decision of the learned Single Judge. It is thereafter the notice dated 19th August 1977 purported to be under S.3(2) of the Kerala Public Accountants Act, 1963 (hereinafter called 'the Act') was issued by the 2nd respondent, the Revenue Divisional Officer, Perinthalmanna to the petitioner. Ext. P2 is the copy of the objection dated 10th September 1977 filed by the petitioner to Ext. P1 notice. In Ext. P2 the petitioner had stated inter alia that the 2nd respondent had no jurisdiction to deal with the petitioner's case, as, according to him, it was only the Collector who had the jurisdiction in the absence of a delegation in favour of the 2nd respondent. It was also stated therein that the petitioner was not a Public Accountant within the meaning of S.2(b) of the Act and that the procedure contemplated under S.3(2) of the Act was not followed by the 2nd respondent while fixing the liability of the petitioner. In the meanwhile revenue recovery proceedings were initiated for the recovery of a sum of Rs. 11,500 purported to be the loss sustained by the Government. The revenue recovery proceedings initiated were challenged by the petitioner in O.P. No. 1973 of 1980 B which was disposed of by this Court by the judgment, dated 13th June 1980 a true copy of which is Ext. P3. The operative portion of the judgment, Ext. P3, reads as follows:

(2.) I have no hesitation in holding that the 2nd respondent did not adhere to the procedure contemplated on the question of jurisdiction. The submission made by the counsel for the petitioner is that even though the 2nd respondent is seen to have stated in Ext. P4 that the Collector's powers under the Act had been delegated to the Revenue Divisional Officer under S.8 of the Act as per the Collector's order No. A. 46777/77, dated 8th August 1977, it is not free from doubt whether the delegation was for effecting recovery of the amount mentioned by the Collector's proceedings, if any, or generally or particularly delegating the power under the Act by proper order in writing in terms of S.8 of the Act. In support of his contention the counsel for the petitioner submitted that in Ext. P4 order the stand taken by the 2nd respondent that it was not required by the Revenue Divisional Officer at that stage to see if the petitioner was a public accountant then and he was only required to effect recovery indicated that the delegation of powers by the Collector could have been only for effecting recovery of the amount.

(3.) In terms of S.3 of the Act where the Government had any claim on the public accountant for moneys, securities for money, documents or other property, the officer concerned should 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. The Collector, when he himself recorded the statement as aforesaid may, and on receipt of such statement, from the Head of the Department of the Government, other authority or institution would 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 might be served on the public accountant in the same manner as a summons has served on a defendant under the Code of Civil Procedure, 1908. It is also provided in sub-s.(3) of S.3 that if the public accountant does not satisfy the demand, but he appeared and objected to the claim wholly or in part, the Collector was required to enquire into the objection and record a decision. It is therefore clear that the power or the scope of the investigation under the relevant provisions of the Act is not limited to what is relevant for recovery of the amount but extends to the fixation of the very liability after considering the objections, if any, the public accountant raised to the claim. The view expressed by the 2nd respondent that the scope of investigation under the provisions of the Act is limited to the question of recovery, in my view, is totally incorrect. I would therefore hold that when the 2nd respondent's jurisdiction to proceed under the provisions of the Act was challenged by the petitioner in his objections, Ext. P2, it was incumbent on the 2nd respondent to satisfy the petitioner that there was an order in writing as provided under S.8 of the Act delegating the powers under the Act by the Collector in favour of the Revenue Divisional Officer generally or particularly. The Collector's order No. A. 46777 of 1977 dated 8th August 1977 referred to in Ext. P4 order of the 2nd respondent is not before the court. If, as a matter of fact, there is an order in writing by the Collector delegating his powers under S.8 of the Act to the 2nd respondent, Revenue Divisional officer, generally or particularly, then that should set at rest the dispute regarding the competency of the 2nd respondent to fix the liability, if any, of the petitioner under S.3 of the Act.