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.