Gujarat High Court
Kendriya Vidyalaya Sangathan & 2 vs Geeta Devisingh W/O Mathura Prasad on 1 April, 2016
Bench: S.R.Brahmbhatt, A.G.Uraizee
C/SCA/17584/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17584 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made
thereunder ?
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KENDRIYA VIDYALAYA SANGATHAN & 2....Petitioners
Versus
GEETA DEVISINGH W/O MATHURA PRASAD....Respondent
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Appearance:
MR PY DIVYESHVAR, ADVOCATE for the Petitioner Nos. 1 3
MR ANAND L SHARMA, CAVEATOR for the Respondent
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 01/04/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) Page 1 of 6 HC-NIC Page 1 of 6 Created On Wed Apr 06 01:25:30 IST 2016 C/SCA/17584/2015 JUDGMENT
1. Heard learned advocates for the parties.
2. The petitioners, who happened to be the respondents in Original Application no.2 of 2015 in the Central Administrative Tribunal, Ahmedabad Bench, have takenout this petition invoking Articles226 and 227 of the Constitution of India with following prayers.
(a) The Hon'ble Court be pleased to admit and
allow this petition.
(b) The Hon'ble Court be pleased to issue
appropriate writ, order or direction, quashing and settingaside the judgment and order dated 27th April 2015 in O.A. No.2 of 2015 passed by Central Administrative Tribunal, Ahmedabad Bench with its consequential effects;
(c) Pending admission and till final disposal of this petition, this Hon'ble Court be pleased to stay the implementation, execution and operation of the judgment and order dated 27th April 2015 in O.A. No.2 of 2015 passed by Central Administrative Tribunal, Ahmedabad Bench with its consequential effects;
Thus, what is essentially under challenge in this petition is the order dated 27th April 2015, wherein the tribunal while allowing the Original Application No.2 of 2015, ordering refund of Rs.2,01,321/ to the petitioner - present respondent, within the period of four months from the date of the order and kept it open to the respondents - present petitioners to take action if permissible under law or memorandum Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Apr 06 01:25:30 IST 2016 C/SCA/17584/2015 JUDGMENT dated 29th June 2012.
2. The facts in brief, as could be culledout from the proceedings deserve to be setout as under :
3. That the Principal - KVS Dhrangadhra, present respondent was transferred to Dhrangadhra wherein the building of the school was in depleted condition, therefore, it was proposed to repair the school building and get it whitewashed and accordingly on 11th December 2010 the same was carriedout. On 26th June 2012, internal audit of KVS - Dhrangadhra was carried out and some irregularities of funds were found and remarks about that were made by the auditing authority and on 29th June 2012, as per KVS Account Code Rules, respondent was issued showcause notice by the petitioners that why she has caused loss to KVS by purchasing materials at higher rates. In her reply dated 1st July 2012, the respondent explained that her works/ purchase were as per Article 178 of KVS Account Code Rules but unable to provide supportive documents or evidence to that regard, and on 18th July 2012, the petitioners sent another letter with audit report to the respondent and she was asked to explain the same in detail to which she gave similar reply and relied on her earlier letter dated 1st July 2012. Therefore, virtually petitioner has tried to cover up her mistakes, errors or mischief in such a way that it would look innocent. The respondent herein failed to produce any cogent document or evidence to support her plea of compliance with the rules and regulations of KVS in its entirety and the spirit. On 6th May 2013, sanction was accorded to the respondent for payment of Rs.5,96,096/ towards encashment of earned leave by the office order no.F.20981/Gen/2012/KVS/RO/AHMD/2441, however, with the direction to Finance Office to deduct Rs.2,01,321/ from above sanctioned fund of respondents towards the loss caused to KVS as per the audit report of 29th June 2012. On 22nd May 2013, the Page 3 of 6 HC-NIC Page 3 of 6 Created On Wed Apr 06 01:25:30 IST 2016 C/SCA/17584/2015 JUDGMENT respondent was issued cheque no.476837 for funds of Rs.3,94,775/ after deducting sum of Rs.2,01,321/. On 21st June 2013, a departmental appeal was filed against the above order of deduction of amount of loss occurred to KVS from earned leave encashment. However, since no immediate hearing was proposed, the respondent preferred representation with request to refer the said amount that was deducted from her earned leave encashment on 17th August 2013. The petitioner on 10th September 2013 explained that this amount was deducted from respondent by relying on the audit report. The respondent under RTI on 28th October 2014, was informed that all her representations were disposed of. Therefore, respondent preferred O.A. No.2 of 2015 before the C.A.T., Ahmedabad Bench and on 27th April 2015, the C.A.T., Ahmedabad Bench allowed O.A. No.2 of 2015 and was pleased to direct the petitioners to refund of Rs.2,01,321/ to the respondent within a period of four months.
4. Thus, the petition is filed challenging the said order dated 27th April 2015 of the C.A.Tribunal.
5. Learned advocate appearing for the petitioners, contended that the respondent hereinabove was under obligation to strictly adhere to the Code of purchase and spending money. The audit objection which clearly indicated that there was loss to the tune of Rs.2,01,321/, so therefore, the same be liable to be recovered from the said respondent and as there was no explanation justifying nonrecovery, the concerned authority ordered to recover the same from the dues payable to the original petitioner - present respondent, on her superannuation. There appears to be therefore all justification for recovery as the public exchequer was put to loss on account of the expenditure incurred without following the procedure of law.
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C/SCA/17584/2015 JUDGMENT
6. The Court is of the view that this petition is required to be dismissed for the following reasons.
(i) This Court has perused the order of the tribunal and we concur with the reasoning of the tribunal and as such there exists no requirement for interference therewith.
(ii) It is pertinent to note that the original petitioner was to retire on attaining the age of superannuation on 30th June 2012 and the audit inspection/objection was carried on 26th June 2012 and 28th June 2012 i.e. in quite proximity on the date on which the original petitioner was to retire from her services. The petitioners' say before the tribunal was in respect of the inspection party not being satisfied with their demands, which is also required to be borne in mind. Suffice it to say that the proximity of the inspection and absence of any rule cited before the tribunal to indicate as to how and in what manner without there being adjudication qua loss incurred, merely depending upon the audit inspection, the recovery made from the retirement dues of the present respondent. Learned counsel for the petitioners, not only before the tribunal, but also before this Court, not filed any undertaking or any provision whereunder such a recovery is required to be affected merely based upon the audit objection and audit paragraph without there being any opportunity in terms of inquiry and in terms of adjudication for the loss in question. Therefore, as there exists no provision permitting such kind of deduction, the order of tribunal cannot be said to be in any manner illegal or unreasonable so as to call for any interference of this Court under Articles 226 and 227 of the Constitution of India.
7. The unfortunate aspect at this stage we have to note that despite the fact that the tribunal's direction to refund the amount, which was illegally deducted, within the period of four months from the date of Page 5 of 6 HC-NIC Page 5 of 6 Created On Wed Apr 06 01:25:30 IST 2016 C/SCA/17584/2015 JUDGMENT the order, the same is not refunded as submitted by the learned counsel for the present respondent, who appears on Caveat. The nonrefunding of the amount in our view is illegal withholding of money and benefit, which should be viewed very seriously.
8. Therefore, we are of the view that the present petition is required to be dismissed and in this petition, while dismissing we are also constrained to direct the present petitioners to see to it that the amount is paid forthwith to the respondent and latest by 11th April 2016.
(S.R.BRAHMBHATT, J.) (A.G.URAIZEE,J) Rathod...
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