BEFORE THE HON’BLE HIGH COURT OF KERALA AT

ERNAKULAM

(Special Original Jurisdiction)

WP( c ) No.          of 2009

N. Krishna Prasad :               Petitioner

VS

The Comptroller & Auditor General   :          Respondents         

Of India, New Delhi and others

SYNOPSIS OF THE ABOVE CASE SUBMITTED BY THE

PETITIONER IN PERSON

              This writ petition is preferred by the petitioner primarily against

the Comptroller and Auditor General of India as the fundamental rights

of the petitioner are infringed by the high handed, arbitrary and unlawful

manner of procedure being adopted by the Accountant General (A&E)

and Principal Accountant General (Audit) of Kerala, the officers directly

under his control. Article 148 of the constitution of India provides that

there shall be a Comptroller and Auditor General of India, the said post is

a Constitutional post and the Constitution has given great importance to

the office of the Comptroller and Auditor General of India. It is clear

from relevant provisions of the Constitution and the Comptroller and

Auditor General (Duties and Powers and Conditions of service) Act

1971, the C & AG controls all disbursement of money and also audit of

all accounts of the moneys granted by Parliament or State Legislature on

demands from the respective executive Government. The C & AG is the

single most important post that, in the opinion of founding fathers of our

Constitution, was considered to be instrumental in ensuring that public

funds are utilized in an efficient manner, that instances of fraud, misuse

and corruption are eliminated and thereby ensuring a good culture of

accountability of the executive to the Legislature. Commenting on the

importance of the Comptroller and Auditor General (CAG) in the

parliamentary system of governance, B.R. Ambedkar said in the

Constituent Assembly on May 30, 1949: “I am of opinion that this

dignitary is probably the most important officer in the Constitution of

India. If this functionary is to carry out the duties – and his duties are far

more important than the duties even of the judiciary – he should be

certainly as independent as the judiciary.”

                          At present, the vital authority of the Comptroller and

Auditor General is not performing his duties duly and faithfully and to

the best of his ability, knowledge and judgement as envisaged by the

founding fathers of our Constitutional Democracy, especially in the light

of the bad state of affairs in the coordinate offices of the C & AG, in

Kerala – The Accountant General (A & E) and the Principal Accountant

General (Audit). The Gazetted Entitlement item is one of the major

functions other than compilation of monthly Accounts and expenditure

for preparing Annual Finance Accounts and Appropriation Accounts of

the state. Gazetted Entitlement wing is responsible for the fixation of pay,

issue of pay/leave salary slips, maintenance of history of service/service

records of the Gazetted officers of Kerala State including All India

Service Officers working in connection with the affairs of the State,

Constitutional and Statutory authorities such as Governor, High Court

Judges, Ombudsman, Chairman and Members of Kerala Public Service

Commission, Commissions and Committees of Inquiry etc. Salary and

allowances of non-officials such as Ministers, Speaker, Deputy Speaker,

MLAs, personal staff of Ministers etc. are also authorized from this

office. The Petitioner is aggrieved on three counts by the callous,

irresponsible and arbitrary actions of the Gazetted Entitlement Wing of

Accountant General (A&E),Kerala and also the Principal Accountant

General (Audit),Kerala whereby his fundamental rights under articles 14,

16  19and 21 of our Constitution are cruelly.    

                         The first count of grievance of the petitioner, an employee

of Government of Kerala as joint secretary in Finance Department ,is that

as per Ext. P5 the Accountant General (A & E), Thiruvananthapuram has

unauthorisedly barred the increment to his salary falling on 20/06/08/and

directed the Sub treasury Officer, Vikas Bhavan to recover unlawfully an

amount of Rs. 5452/- from the salary of him. Consequent to the

humiliation on this action, the petitioner has not drawn the salary for the

month of September and October 2009.  This action was based on an

order Sri. Jose Cyriac, the then Additional Chief Secretary, in violation of

KCS (CCA) Rules, 1960.All the illegalities and irregularities involved in

the action was informed to the Accountant General (A & E) - the second

respondent- by the exhibit produced herewith marked as Ext. P7.

                         The Second count of grievance of the petitioner is that

While the petitioner was in charge of the Finance Officer, Directorate of

Printing  a letter marked as Ext. P3  was sent to the 1st respondent to

recover from the salary of the then Principal  Secretary (Finance) Sr. K.

Jose Cyriac, as per the Government order No. 56/2005 dated 3rd October,

2005,  the loss to Government by way of keeping the petitioner out of

service for 98 days with salary against the principle of economy to be

followed in the prudent management of public finance.   

                      It is submitted that after a sustained campaign of the  

Secretariat Aikya Vedi (SAVE), an association of Secretariat employees

of Kerala, led by the petitioner the seditious, antinational and antipeople

oath of office of ministers of Kerala was altered as the Governor of

Kerala reluctantly accepted the oath of office in Malayalam of Indian

Constitution as per section 2 of the Authoritative Text (central Laws) Act

1973 while the oath of office was administered to the cabinet led by Sri

Oomen Chandy in the month of August 2004. Thereafter   the ministers

of Kerala led by Sri.A.K.Antony who took oath of office to rule ‘without

love’ have not voluntarily refunded the monetary benefits, and hence a

plea was made by the petitioner on the basis of the resolution of his

association to recover from them all the monetary benefits enjoyed by

them by unlawful act of ruling the people of Kerala without love,

according to their oath of office. A copy of this plea was submitted to the

Accountant General (A&E) Trivandrum produced as Ext  P14       who is

bound to ensure that the expenditure from the state exchequer was made

only in accordance with legality and propriety. It is a fact that the

ministers of the cabinet led by Sri.A.K.Antony enjoyed their pay and

huge allowances on the basis of the authorization slips issued in this

regard to the Sub Treasury officer Secreteriat,Thiruvananthapuram.

Before issuing these authorization slips the Accountant General(A&E)

should have ensured that these ministers have assumed their offices

complying Article 164(3) of the Indian Constitution. The inaction on this

matter of the respondents is the most painful grievance of the petitioner.

                       The writ under Article 226 of the Indian Constitution is

submitted for relief on the above three counts of grievances of the

Petitioner to ensure his fundamental rights guaranteed to him by the

articles 14, 16, 19, 21 of the Constitution of India.

                                                                        

          Dated this  9th day of November 2009/ 18th day of

Karthika 1931/24th day of Thulam 1185

                                                                   N.Krishna Prasad

                                                                    (Party in person)        

BEFORE THE HON’BLE HIGH COURT OF KERALA AT

ERNAKULAM

(Special Original Jurisdiction)

WP( c ) No.          of  2009

Petitioner                                                                 Party in Person

N. Krishna Prasad                                                                                    

TC – 29/97

M.K.K. Nair Road,

Pettah, Thiruvananthapuram

Address of the Petitioner for Service is as shown above.

Respondents

1. The Comptroller and Auditor General of India, New Delhi

2. The Accountant General (A&E) of Kerala, Thiruvananthapuram

3. The Principal Accountant General (Audit) of Kerala,

Thiruvananthapuram

4. The State of Kerala Rep. by Chief Secretary to Government,

Secretariat,   Thiruvananthapuram.

Address of the respondents is as shown above:

Memorandum of writ petition filed under Article 226 of the

Constitution of India.

1. The petitioner is a serving officer of Government of Kerala as Joint

Secretary to Government in Finance Department, now on other

duty as Senior Finance Officer, Directorate of Agriculture.  In his

course of service he is in receipt of best comments and

appreciations from his superior officers. The appreciation letter

from Smt. Sudha Pillai, the former Principal Secretary (Finance)

Government of Kerala and at present one of the Senior most

Secretaries of Government of India, is  a testimony to his

exemplary service as a Government Servant and copy of this letter

is produced marked as Exhibit P1.

2.         It is humbly  submitted that on my promotion to the post of

Joint Secretary and my assumption of office as Senior Finance

Officer, Agriculture Directorate, the 1st respondent issued the pay

slip No. GE2/D/K15/1330 dt. 12-08-2008, enhancing my basic pay

to Rs. 23200/- w.e.f. 04-07-2008 and allowing an increment of Rs.

500/- to my lower scale of pay in the post of Deputy Secretary,

enhancing it to Rs. 21,200 from Rs. 20700/- w.e.f. 20-06-08.This

document is produced and as Exhibit P2.

3.        While the petitioner was enjoying the pay and allowances on

the strength of the above said pay slip (Ext. P2) the second

respondent directed the petitioner vide letter No.

GE02/K/15/Fin/935 dated 27-07-2009, produced and marked as

Exhibit P3, to remit an amount of Rs.5769/- in the Sub Treasury,

VikasBhavan,Thiruvananthapuram being the unsuffered portion

the increment bar w.e.f. 07-05-08 ordered by Government vide

GO(MS) No.612/2007/Fin dt.27-12-07. This Government Order is

produced and marked as Exhibit P4.

4. On receipt of the above mentioned direction (Ext. P3) the petitioner

informed the Accountant General, (A&E) that the Government

order barring increment w.e.f.01-05-08 is unlawful as it was issued

by an incompetent authority and unenforceable due to the

infirmities in the terms of penalty. But without application of mind

to my contentions the 2nd respondent revised my pay slip barring

the increment falling on 20-06-08 to my pay as per rules instead of

the increment falling on 01-05-08 as per the Government order

above said and also directed the Sub Treasury Officer, Vikas

Bhavan to recover an amount of Rs. 5452/- from my salary, being

the unsuffered portion of increment bar. This document is

produced marked as Exhibit P5.  The Accountant General (A&G)

Kerala also intimated the Finance Department her difficulties in

enforcing of barring of increment of the petitioner falling on 01-

05-2008 but ensured the punishment as desired by that

Department, by barring the increment falling on 06/08. This paper

is produced and marked as Exhibit P6.

5.  In response to the Ext. P5 from the 2nd respondent, the petitioner

submitted a letter to Smt. J.Mahalekshmi Menon, the Accountant

General (A&E), Trivandrum, which is produced herewith marked

as P7, to cancel the Ext. P5 barring the petitioner’s increment and

recovering an amount of Rs.5452/- being the unsuffered portion of

the increment bar on the following two grounds.

a.      As per  KCS (CCA) Rules, 1960 the authority competent to take

disciplinary action against the petitioner is an officer in the rank of

Secretary/Principal Secretary/Additional  Chief Secretary,

appointed by Government in General Administration Department

from time to time.  As per rules, the appointing authority is the

disciplinary authority if no delegation is made by Government.  In

my case my appointing authority is the head of the General

Administration Department and no delegation is made in this

regard as per information gathered through RTI Act. This

document is produced marked as Exhibit P8.The following is the

terms and conditions of the   punishment as per the unauthorized

Govt. order:

“His next increment of Rs. 500/- is due on 1-5-08.  Accordingly he will

not be eligible for the increment falling due on 1-5-08. On 1-5-2009 the

withheld increment will be restored to him”.

b. By the pay slip marked as Ext5 the office of the Accountant

General, (A & E) has fixed new terms of penalty contrary to the

penalty prescribed by the petitioner’s parent Department of

Finance, barring increment falling on some other date (20-06-09)

instead of increment falling on 1-5-08 as per the order of his

Department.  It is a legal fact that when the disciplinary action has

attained finality and a term of penalty awarded to a delinquent

officer, no authority except the authority prescribed by the Kerala

Civil Services (Classification, Control and Appeal) Rules 1960 can

review and either enhance or reduce the penalty imposed.  It may

be kindly noted that it is specifically and repeatedly directed by the

officer who initiated and finalized disciplinary action against the

petitioner, in violation of Kerala Civil Services (Classification,

Control, Appeal) Rules, that it is only the increment falling on 1-5-

08 that is barred.  It is also a fact that nowhere in the Government

Order imposing penalty to the petitioner any statutory provision

has been mentioned as it cannot rely on any such provision. It is

obvious that the Accountant General (A&E) cannot step into the

shoes of the Appellate authority and alter the terms of penalty.  It

has to strictly adhere to the calendar dates specified in the

Government order to enforce the penalty or else treat the order

unenforceable. The office of the Accountant General (A & E) has

to give due regard to calendar dates, as it is universally accepted.

In this context, it can unambiguously and categorically establish

that the Accountant General (A & E) cannot unauthorizedly alter

/enforce the penalty awarded to me by an authority who is

incompetent to do that.   

6. As per the official information gathered invoking the Right to

information Act produced as Exhibit P8, the disciplinary action

initiated against the petitioner by Sri. Jose Cyriac, the then

Principal Secretary, Finance Dept was without jurisdiction. This

extra jurisdictional action of him is abinitio void and hence the

penalty imposed by him vide Ext P4 is unsustainable before law.

 


 

 

 

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