Full Judgment
W. A. No. 241 of 2022 -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 17TH DAY OF FEBRUARY 2022 / 28TH MAGHA, 1943 WA NO. 241 OF 2022 AGAINST THE JUDGMENT IN WP(C) 27377/2017 OF HIGH COURT OF KERALA APPELLANT/S: RAMANATHAN.A AGED 54 YEARS SRAVAN, NEAR KANNIKOTHU KAVU, PIRAYARI, PALAKKAD DISTRICT BY ADVS. V.PREMCHAND SURYA MOHAN P. RESPONDENT/S:
1 THE DIRECTOR, AKSHAYA, KERALA STATE IT MISSION, KELTRON CAMPUS, VELLAYAMBALAM, THIRUVANANTHAPURAM 695 001 2 THE DISTRICT COLLECTOR PALAKKAD DISTRICT 678 001 3 THE PIRAYIRI GRAMA PANCHAYAT PIRAYIRI, PALAKKAD DISTRICT, REPRESENTED BY ITS SECRETARY 678 003 4 THE DISTRICT PROJECT MANAGER AKSHAYA DISTRICT OFFICE, PALAKKAD DISTRICT 678 5 LEO BABU BETHIL, POOZHIKUNNAM ROAD, CHUNKAM, PIRAYIRI, PALAKKAD DISTRICT, PIN 678 004
SRI. TEK CHAND, SR GP FOR R1, R2 AND R4, SRI.BALAGANGADHARAN SC FOR R3, SRI. P.K.MOHANAN(PALAKKAD) FOR R5 W. A. No. 241 of 2022 -2- THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W. A. No. 241 of 2022 -3-
JUDGMENT
S. Manikumar, C.J. Before the writ court, the following reliefs sought for by the appellant has been declined:- “i. Call for records leading to Exhibit P5 and Quash the same by a writ of Certiorari or any other writ, direction or order; ii. Issue a writ of mandamus or any other writ, order or direction directing respondents to reconsider the matter after conducting an independent enquiry into the complaint evidenced by Exhibit P2.”
2. It is thus challenging the legality and correctness of the
judgment of the writ court, captioned appeal is preferred.
3. Short facts leading to the filing of the writ petition are as hereunder:-
4. Appellant is the entrepreneur of an Akshaya Centre No. PKD166 located at Krishna Road, Pirayari, Palakkad, which was commenced in the year 2008.
5. A student by name Leo Babu, the 5 th respondent, who applied
W. A. No. 241 of 2022 -4- for admission to B. Com course in the Colleges under the University of Calicut, availed the service of the Akshaya e-Kendra run by the appellant, to remit the mandatory fee for first allotment. e-chalan for Rs.425/- was raised by the Akshaya e-Kendra and the 5th respondent paid Rs.435/-, which included Rs.10/- towards service charges for the Akshaya e-Kendra and a receipt for Rs.435/- was issued to the 5 th respondent.
6. After remitting the mandatory fee for the first allotment, the
5th respondent attempted for the next higher option, but found that he is not eligible for the next allotment. When the 5 th respondent found that the ineligibility for the next higher option was due to the non- remittance of the mandatory fee for the first allotment, he approached the Akshaya e-Kendra on 19.06.2017, and they told him that they will enquire into the matter, and took the receipt issued on 13.06.2017 from him.
7. After the 5th respondent reached home, he received a message
of remittance of the fees. When he went to Akshaya e-Kendra to enquire about this, he was issued with a fresh receipt with alterations in the date. According to the 5th respondent, though Akshaya e-Kendra collected the fees and service charges from him on 13.06.2017, they W. A. No. 241 of 2022 -5- remitted the fees to the University only on 19.06.2017, when he complained of the non-remittance. The last date for remittance of the mandatory fee for the first allotment was on 16.06.2017, and due to the failure on the part of Akshaya e-Kendra to promptly remit the amount collected from him to the University, he lost his chance to prosecute studies in a Government College of his choice, and had to take admission in Self Financing College, paying huge fees.
8. The 5th respondent filed complaint against the petitioner before the Police, the District Collector and other authorities. Pursuant
to the complaint, the District Collector, Palakkad, by Ext.P5 order
dated 08.08.2017, terminated the Akshaya e-Kendra entrepreneurship of the petitioner, which is the order impugned in the writ petition.
9. According to the appellant, the 5th respondent came to his
Akshaya eKendra to remit the fee only on 19.06.2017 and his version in the complaint is factually incorrect; and that the District Collector has passed the order of termination of Akshaya e-Kendra, without following the procedures in Ext.P6 agreement entered into between the petitioner and the Government of Kerala.
10. Though the agreement contemplates termination of ACE by
W. A. No. 241 of 2022 -6- the District Collector, pursuant to a resolution of the Local Self Government Institution, recommending termination, after an enquiry with notice and opportunity of hearing to the ACE, the said procedures were not followed in terminating the entrepreneurship of the appellant.
11. Appellant has further contended that the District Collector
blindly accepted the report of the Secretary of the Panchayat, and did not apply her mind, and was prevailed up on by the District Project Manager, who was in inimical terms with the appellant.
12. Appellant has also contended that even before passing
Ext.P5 order terminating the ACE, the District Project Manager had informed the 5th respondent vide Ext.P7 that the District Collector had taken a decision to cancel the ACE of the appellant. Accordingly it is submitted that Ext.P5 is illegal, arbitrary and vitiated by errors apparent on the face of it and therefore, liable to be set aside.
13. A detailed counter affidavit has been filed in the writ
petition, on behalf of the Director, Akshaya, Kerala IT Mission, Thiruvananthapuram and the District Collector, Palakkad, respondent Nos. 1 and 2 respectively and inter alia among other contentions, it is stated thus:- W. A. No. 241 of 2022 -7-
“2. It is most respectfully submitted that several customers have earlier complained about the misbehavior exhibited by the petitioner towards them while availing the service from the centre. But action was not initiated against the petitioner as written complaints were not received. In general, there is a bad impression as to the manner in which customers are treated in the centre. This respondent is not aware of the fact that the petitioner is an office bearer of All Kerala Akshaya Entrepreneurs Confederation.
3. It is submitted that after conducting a detailed enquiry
in this matter on the basis of a complaint received from the second respondent, District Collector was convinced that the petitioner is putting forth a cooked up story. Since none of these respondents are involved in this incident, the best person to explain this is Leo Babu, who is the actual aggrieved person. So it is humbly requested that Leo Babu is a necessary party and he is to be impleaded in this petition for arriving at a justful decision. The petitioner is putting forth these allegations for the first time in this writ petition. Though he has submitted two explanations earlier, apart from some vague allegations, there is no whisper as to the incidents which took place on 21.06.2017 and 22.06.2017. A perusal of Exhibit P2 and P3 will reveal these aspects. It is untrue to say that the petitioner has lodged a complaint with the second respondent. The second respondent is not in receipt of any such complaints. Exhibit P1 is seen addressed to the Sub Inspector, Town North Police Station, Palakkad. On a reading of Exhibit P1 it is clear that the said representation was given after the Police have questioned the
W. A. No. 241 of 2022 -8- petitioner on a complaint lodged by Leo Babu. The fourth respondent is unaware of the allegations raised in W P(C) No.25268/2017 as they are not parties to the same.
4. It is submitted that on a perusal of the representations
made by the petitioner it is crystal clear that he is taking a double stand. In Exhibit P3, the petitioner affirmatively says that the applicant apparently had come on 13.06.2017 and has taken a challan for allotment. But he did not pay any amount other than the charge for raising and printing the challan and on 19 th a boy other than the applicant came there and deposited the amount against the challan. But in Exhibit P4 he had an afterthought and thereby deviating from his earlier stand has stated that his staff does not recollect whether the customer had come to the centre on 13th. It is also mysterious that even though the complainant Leo Babu reiterated his allegations at the time of oral hearing, the petitioner herein did not prefer to deny those allegations verbally except for a few statements that he has been rendering service for the past nine years and there are no latches on his part and he has explained the matters in the statement already filed by him. This behaviour on the part of the petitioner also raises eyebrows as to the correctness of the written submissions made by him. I can only be presumed that he has not made specific denials at the time of hearing only because he is well aware that it will land him in more troubles.
5. It is submitted that allegations leveled against Exhibit
P5 order issued by the District Collector are not correct. The District Collector has conducted a detailed enquiry in this matter. Enquiry reports submitted by the District Planning Officer who is W. A. No. 241 of 2022 -9-
the District Co-ordinator of Akshaya and the Panchayat Secretary unanimously suggested action against the petitioner herein. Moreover an examination of the available records clearly points to the latches on the part of the petitioner which has plunged the complainant Leo Babu to a very disappointing situation. The challan dated 13.06.2017 bears signature of the staff of the petitioner and the amount shown in the challan is Rs 425/- and not Rs.10/- as alleged by the petitioner. If challan was only generated in Akshaya centre on 13.06.2017 as alleged by the petitioner, the challan will not bear the seal of Akshaya centre and signature of staff. So also another vital aspect is that on the face of the challan it is printed in brackets that (Please remit the challan on or before 16.06.2017) and the challan also bears the seal of the Akshaya Centre. A copy of the same is attached herewith. There is little chance for the complainant Leo Babu to commit a willful delay as alleged by the petitioner. The petitioner's version to the effect that the amount was paid only on 19.06.2017 cannot be taken for granted as the complainant will not make such a move after the last date for remitting the fees. So it can only be presumed that the fee was handed over by the complainant to the staff of the petitioner on 13.06.2017 which was remitted to the University only on 19.06.2017. Evaluating all
these aspects the second respondent issued Exhibit P5 order
which itself is speaking. It is not illegal, unjust and erroneous as
alleged by the petitioner. The second respondent has categorically stated in the order that the fault is on the part of the petitioner which depicts the poor performance level of the centre and that this act amounted to grave dereliction of duties. It is not correct to say that this respondent is in enemical terms with the
W. A. No. 241 of 2022 -10-
petitioner since her assumption of charge in the Akshaya District Project Office. The petitioner has not leveled such an allegation against the fourth respondent in any of the representations made by him. On receipt of complaint from Leo Babu, in order to check the veracity of the complaint, the respondent accessed the e-District login of petitioner which has caused a temporary blocking effect which occurs automatically and the same was put in order immediately after the said verification. It is not correct to say that the fourth respondent has restored his ID on the basis of a complaint forwarded by him to the Director, Kerala State IT Mission. No such complaint is received by the First respondent and no such instructions were received by the fourth respondent from the Director, Kerala State IT Mission in this regard and moreover there was no such occasion for raising such a complaint as the temporary blocking was limited to a very short time and no hardship was caused to the petitioner due to this act. The allegation to the effect that the copy of the enquiry report of Pirayiri Grama Panchayath was not served on the petitioner and the same was prepared behind his back is flimsy. The Panchayath had conducted an enquiry as directed by this respondent and they have submitted the enquiry report to this respondent. So there is no need to serve a copy to the petitioner as averred by him. Moreover the Panchayath has forwarded the report after conducting a detailed enquiry after hearing the petitioner. The averment in the petition that the petitioner was always ready to produce the CCTV footage is not at all correct. On 28.06.2017 itself, the fourth respondent forwarded an email communication to the petitioner asking him to produce the CCTV footage on or before 30.06.2017. A copy of the same is attached herewith. But
W. A. No. 241 of 2022 -11-
the petitioner neither responded to this communication nor cared to produce the same. Subsequently, on a representation received from Leo babu on 10.07.2017 specifically stating that the CCTV footages relating to the relevant periods will be lost if urgent steps are not taken for verifying the data immediately, the second respondent directed the fourth respondent to take urgent action and accordingly the fourth respondent visited the centre on the same day itself. On inspection it was found that though the CCTV camera and its connections were seen there, the Digital Video Recorder (DVR) was found to be removed. It was also found that the e-district register was not maintained in the
Akshaya centre. These facts were reported to the second respondent on 11.07.2017. A copy of the same is attached herewith. The petitioner could have very well substantiated his stand by producing the CCTV footages which would be a clinching evidence in this matter. It is equally not correct to say that the Pirayiri Grama Panchayath has not requested the fourth respondent to cancel the services of the centre. Copy of the resolution of the Grama Panchayath in which it was unanimously decided to forward recommendation for termination of the license of Pirayiri Akshaya Centre was submitted by the Secretary of Pirayiri Grama Panchayath along with the enquiry report. A copy of the said resolution is attached herewith. From the report submitted by the said panchayath, it is evident that they have heard the complainant Leo Babu as well as the petitioner before concluding the enquiry. So also no such stipulations are laid down in GOMS No.22/2012/ITD dated 22.10.2012 as stated in the petition. A copy of the same is attached herewith. Considering the averments put forth by the
W. A. No. 241 of 2022 -12-
petitioner in totto, it is clear that with some malafide intentions he is trying to mislead the Honourable Court. As per the agreement entered into between the District Collector and the petitioner, the Akshaya centre can be terminated by the District Collector based on the recommendations made by the Local Body. It is very mysterious that the petitioner has not preferred to furnish a copy of the agreement executed by him. A copy of the same is attached herewith. In the said agreement, clause A1 (viii), clearly lays down that the Akshaya entrepreneur shall no right to deny or delay rightful government service to any citizen during the working hours. It is also stated that the Akshaya
entrepreneur shall ensure proper service and customer satisfaction. The license of the petitioner was cancelled invoking the powers under sub clause (iii) F of the agreement. The petitioner is absolutely bound by the stipulations laid down in the agreement. After conducting a detailed enquiry and verifying all the relevant documents, the second respondent found that the complainant Leo Babu has lost a valuable opportunity to get admission in a reputed institution due to the inaction and dereliction of duty on the part of the petitioner. It is not correct to say that the second respondent has not verified the receipt issued to the complainant. The resolution of local Body and the report of other enquiry officers also substantiate the stand taken by the second respondent. The averment in the petition that the complainant has completed his degree is not correct. He has just completed his plus two and was awaiting allotment for his degree seat. Moreover a common man, especially a boy of 17, is not expected to know all the formalities of an Akshaya centre. It is also not correct to say that the petitioner was not heard by the
W. A. No. 241 of 2022 -13- second respondent. On 18.07.2017, the complainant, petitioner and petitioners' staff Ms. Vaishnavi was heard by the second respondent and depositions were recorded. The writ petition is not maintainable as the petitioner has not exhausted his alternative remedy to file an appeal to the Director, Kerala State IT Mission as per sub clause (v) of clause F of the agreement against the termination order. The petition is devoid of any merits and is only to be dismissed.”
14. Mr. Leo Babu, the 5th respondent, has also filed a counter affidavit, narrating the incidents happened at the Akshaya e-Kendra on 13.06.2017 and 19.06.2017 respectively.
15. After considering the rival submissions, writ court, by
judgment dated 21.10.2021, dismissed the writ petition as hereunder:-
“12. A perusal of Ext.P5 order would show that the
District Collector has applied her mind independently to the facts
and the relevant provisions in the agreement and has come to the
conclusion and decision to terminate the ACE agreement and
entrepreneurship of the petitioner. All procedures as contemplated under Ext.P6 agreement have been followed before terminating the entrepreneurship of the Akshaya E- Kendra of the petitioner. The allegation of bias attributed to the respondents 2 and 4 is vague and not substantiated. Ext. P5 order passed by the 2nd respondent is well within the four walls of law.
13. Akshaya Centres are the delivery points for the W. A. No. 241 of 2022 -14-
citizen's service. The agreement the ACE enters with the Government contains the terms and conditions, duties and liabilities of the ACE to ensure effective service delivery to the public. It provides that the ACE shall not hold back any amount and promptly remit all amounts collected from the citizens and payable to the concerned agencies.
14. Even if non-remittance of the amount to the account
of the Calicut University is viewed as an omission on the part of the Akshaya E- Kendra of the petitioner, his attempt to gloss over the same, which is writ large, cannot be approved. This conduct of the ACE entails termination of the ACE agreement and entrepreneurship after following the procedures contemplated under Clause F of Ext.P6 agreement. The petitioner is bound by the terms and conditions of the agreement. The procedures have been duly complied with and the ACE agreement and entrepreneurship has been rightly terminated.
15. A learned Single Judge of this Court in Mushin T.P. v.
District Collector [judgment dated 20.06.2019 in W.P. (C). No.20551/2018], while considering the legality of an order of the District Collector cancelling an Akshaya Centre observed:
“Akshaya Centres are opened up by the Government for serving the public, and unless and until the licensees are functioning with integrity, efficiency, honesty and discipline, the intention of the Government will be put to jeopardy, and people will loose confidence to depend such Centers, upsetting the whole fabric of the institution as such.”
16. Due to the conduct of the petitioner, the valuable right of the additional 5th respondent to prosecute his studies in W. A. No. 241 of 2022 -15-
Government college with low fee structure was lost. I do not find any reason to interfere with Ext.P5 order in exercise of jurisdiction under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed. No order as to costs.”
16. Being aggrieved, instant writ appeal is filed on the following
grounds:- a) A hearing as contemplated in the agreement, admittedly, was not done. Instead the hearing was conducted on the basis of a one sided Report prepared by the Secretary of the Panchayat. The said report was relied on by the Panchayat without hearing the petitioner as contemplated in the agreement. Exhibit P5 is an outcome of the decision made by the 4th respondent to wreck vengeance on the petitioner and Exhibit P7 substantiates the same. The 2 nd respondent has simply accepted the version given by the 4th respondent and the 5th respondent, by adopting a sympathetic attitude, without talking into consideration the fact that there is no clear and cogent evidence regarding acceptance of money by the staff of the petitioner. b) The 2nd respondent has not properly conducted an enquiry and has not applied her mind to the veracity of the complaint filed before W. A. No. 241 of 2022 -16- the Akshaya Office. A reading of the order will reveal that the 2 nd respondent has proceeded with the complaint in a prejudiced manner and mainly based on the version given by the District Project Manager. c) The petitioner has clearly pleaded in Para 6 of the writ petition that the 2nd respondent has proceeded with the complaint in a prejudiced manner and mainly based on the version given by the District Project Manager, who is in inimical terms with the petitioner, since her assumption of charge as a contract employee in the Akshaya Office. The District Project Manager, in fact, even before getting an explanation from the side of the petitioner, had blocked the password and ID with respect to the Centre, on receipt of the complaint by the complainant. d) The malice entertained by the 4th respondent was pleaded in the writ petition and Exhibit P7 produced in the writ petition would unequivocally establish prejudice and malice entertained by the 4 th respondent against the petitioner. A perusal of the same would also establish the involvement and active role played by her in the issuance of Exhibit P5 order. Even before Exhibit P5 order is issued and signed by the 2nd respondent, the 4th respondent has declared that the Centre W. A. No. 241 of 2022 -17- will be terminated. This would emphatically prove malafides and the lack of good faith by the 4th respondent and this vital fact as revealed in the document was completely ignored by the learned Single Judge. The Hon'ble Supreme Court in State of Bihar & Anr. v. PP Sharma, IAS & Anr. (1992 Supp (1) SCC 222), held thus:-
“Mala fides, means want of good faith, personal bias, grudge, oblique or improper motive or ulterior purpose. The administrative action must be said to be done in good faith, if it is in fact done honestly, whether it is done negligently or not. An act done honestly is deemed to have been done in good faith. The determination of a plea of malafide involves two questions, namely (i) whether there is a personal bias or an oblique motive, and (ii) whether the administrative action is contrary to the objects, requirements and conditions of a valid exercise of administrative power. The action taken must, therefore, be proved to have been made malafide for such considerations. Mere assertion or a vague or bald statement is not sufficient. It must be demonstrated either by admitted or proved facts and circumstances obtainable in a given case. If it is established that the action has been taken malafide for any such considerations or by fraud on power or colourable exercise of power, it cannot be allowed to stand.”
e) Writ court also failed to address the question of the impact of the clause in the agreement regarding hearing conducted by the Grama W. A. No. 241 of 2022 -18- Panchayat before a resolution is passed seeking termination. The resolution was passed by the Grama Panchayat without hearing is evident. The recommendation for termination by the Grama Panchayat has its genus from the direction given by the 4th respondent to the Secretary for preparing a report and to submit before the Grama Panchayat. Here also the involvement of the 4 th respondent is writ large. f) The District Collector though passed Exhibit P5 order of termination has in fact acted in terms of the instructions given by the 4th respondent. It is in this context, Exhibit P7 assumes significance and the learned Single Judge has discarded this vital document. The counter affidavit is silent and no additional counter affidavit was also filed denying the same. g) The petitioner herein had pointed out to the District collector that the complainant had come to the Centre on 13.06.2017 and had raised the Chalan in his name. Instead of effecting payment on that day, he came to the Centre only on 19.06.2017, i.e after the due date for payment is over. When the payment was effected on 19.06.2017, the same was accepted by the University also. The District Collector also went wrong in blindly adopting the report submitted by the W. A. No. 241 of 2022 -19- Secretary of the Grama Panchayat stating that Rs. 435/- was found to be received on 13.06.2017 and that the same was not paid to the Calicut University on the last date.
h) The District Collector ought to have analyzed the facts
properly and should have conducted an independent enquiry into the matter before blindly believing the complainant. Moreover a prudent boy would never leave the Centre without getting the receipt evidencing payment of Rs. 435/ on 13.06.2017 itself, if his version is accepted in totto. The impact of possession of three chalan with the 5 th respondent also would substantiate the same. The finding of the learned Single Judge that the District Collector has applied her mind independently is unsustainable in view of the interference and involvement of the 4th respondent writ large in the proceedings.
17. Mr. V. Premchand, learned counsel for the appellant,
advanced arguments on the contention that the District Project Manager, Palakkad, the 4th respondent, was in inimical terms with the appellant and that it is the 4 th respondent who directed the Panchayat to conduct an enquiry. The Panchayat Secretary himself conducted an enquiry, submitted a report before the Panchayat, and the Panchayat passed a resolution, based on which Ext. P5 order was passed. W. A. No. 241 of 2022 -20-
18. Inviting attention of this Court to Ext. P6 agreement entered
into between the appellant and the Government, learned counsel for the appellant further contended that the local body resolution may recommend termination based on the serious violations of agreement conditions, malpractice by ACE, poor physical performance and acting against public interest, and this recommendation may be done only after due enquiry and after giving opportunity of being heard to the ACE, after due notice. Though there is a resolution passed by the Panchayat based on the report of the Secretary, that too prepared by the directions of the 4th respondent, an opportunity of hearing was not provided to the petitioner, as per the agreement.
19. Learned counsel for the appellant further contended that a
reading of the order will reveal that the District Collector, the 2 nd respondent, proceeded with the complaint in a prejudiced manner, and mainly based on the version given by the District Project Manager, who was in inimical terms with the appellant. Even before the District Collector passed Ext. P5 order on 08.08.2017, the District Project Manager issued Ext. P7 communication dated 25.07.2017 to the complainant / the 5th respondent, stating that in the hearing conducted by District Collector, a decision has been taken to cancel the license of W. A. No. 241 of 2022 -21- the appellant and that the order cancelling the license will be issued immediately.
20. Heard the learned counsel for the appellant and perused the material on record.
21. Ext. P5 impugned order of the District Collector dated 08.08.2017, is reproduced:- “Proceedings of the District Collector, Palakkad
(Present : P.Marykutty, IAS) ------------------------------------------------------------------------------ Sub: Akshaya District Project Office, Palakkad - Cancellation of Akshaya entrepreneurship of Sri.Ramanathan A. of Krishna Road location (Location Code: PKD166) of Pirayiri Grama Panchayath. Ref:-
1. Petition filed by Leo Babu, S/o.Babu CA, Bethel, Poozhikunnam Road, Pirayiri to District Project Manager,Akshaya dt.23.06.2017.
2. Show Cause notice issued by District Project Manager, Akshaya to ACE on 27.06.2017.
3. Explanation received from ACE on 28.06.2017.
4. Mail from Akshaya District Project Office to produce CCTV Footage on 28.06.2017.
5. Mail from Administrative Officer, Akshaya dt.6.07.2017.
6. Order of District Collector to inspect CCTV footage on 10.07.2017.
7. Inspection report of DPM submitted on 11.07.2017. 8.Resolution from Pirayiri Grama Panchayath dt. 13.07.2017.
9. Report submitted by Secretary Pirayiri Grama Panchayath to District Project Manager, Akshaya dt. 17.07.2017.
10. Agreement executed by the ACE dated 04.06.2008. W. A. No. 241 of 2022 -22- -------------------------------------------------------------------------------
Order No.1/Akshaya/PKD/SE/17 Dt. 08/08/2017
------------------------------------------------------------------------------- Sri. Ramanathan A, 5/59, Sraavan, Devi Nagar, Near Kannottukavu, Pirayiri was selected as an Akshaya Entrepreneur for Krishna Road location (Location Code: PKD166) of Pirayiri Grama Panchayath.
Akshaya District Project Office has received a petition from Leo Babu as per ref.1 against Krishna Road akshaya stating that the petitioner has lost the opportunity for degree allotment in merit seat due to the non remittance of Calicut University fees within the stipulated time by the said centre. Petitioner has also levelled complaints regarding the misbehavior of Krishna Road Akshaya Entrepreneur.
As per ref.2 Akshaya District Office issued show cause notice to the ACE on 27.06.2017. In his explanation to the said notice, ACE has admitted that the applicant had come to his centre on 13.06.2017 and had taken a challan for allotment and apart from that he did not pay any amount other than charge for raising and printing the challan. It is further stated that the applicant was attended by his staff Ms. Vaishnavi and that on 19th a boy came to akshaya centre and deposited the money against the said challan vide e-District receipt No.6995. ACE Mr.Ramanathan also claims that neither he nor his staff had corrected the date of receipt, and it was done by some body on behalf of the applicant.
Since the petitioner has affirmatively put forth in his W. A. No. 241 of 2022 -23-
petition that all the facts narrated in his petition will be revealed on an inspection of CCTV footage of the CCTV camera installed in the said akshaya centre, District Project Manager, Akshaya directed ACE on 28.06.2017 to produce the CCTV footage pertaining to two days, ie, 13.6.2017 and 19.6.2017 on or before 30.6.2017. But it is seen that the entrepreneur did not care to produce the same for inspection.
Consequently, District Project Manager was directed to conduct inspection on 10.07.2017 in Krishna Road Akshaya for inspecting the CCTV records. As per ref.7 DPM stated that the Digital Video Recorder (DVR) was found to be removed while CCTV Camera along with the connections to DVR was seen in the Akshaya Centre.
Subsequently as per the instruction of the Director, Akshaya vide ref.5, enquiry report resolution on the petition was sought from the Pirayiri Grama Panchayath by District Project Manager, Akshaya. As per ref.9, enquiry report of Grama Panchayat it is seen stated that the challan was generated from the Krishna Road Akshaya e centre and it bears the signature of staff as well as seal of akshaya. Fees to be remitted to Calicut University with the service charge (Rs.435/-) is found to be received by Krishna Road Akshaya e centre on 13.06.2017 and is not paid to Calicut university within the last date of 16.06.2017. Payment to university is found to be done by the Akshaya e Centre only on 19.06.2017 and receipt for the same was issued to the petitioner with the signature of Vaishnavi, Staff of Krishna Road Akshaya.
W. A. No. 241 of 2022 -24- In the resolution dt.13.07.2017, the Pirayiri Grama Panchayath has requested the District Project Manager, Akshaya to cancel the license & terminate the services of Akshaya e centre of Sri.Ramanathan A. in Krishna Road Location. Respected parties were heard on 18.07.2017. Petitioner Sri.Leo Babu, Krishna Road akshaya entrepreneur Sri.Ramanathan & Akshaya staff Vaishnavi were heard in the presence of District Co-ordinator, Akshaya & District Planning Officer, Palakkad, Pirayiri Grama Panchayath Secretary and District Project Manager, Akshaya.
ACE has admitted in his explanation dt. 28.06.2017 that the petitioner came to the akshaya centre on 13.06.2017 for taking challan only and was attended by akshaya staff Vaishnavi. But in the Statement of facts submitted by him, it is stated that the attended staff Vaishnavi does not recollect whether the petitioner had come to Krishna Road Akshaya e centre on 13.06.2017. This contradiction in the statements of ACE
Sri.Ramanathan seems to be an attempt to distort the actual facts
to suit his stand.
Moreover, as pointed out in the report of the Pirayiri Grama Panchayat dt. 17.07.2017, signature of the staff of akshaya e-centre against the space for signature of cashier in the challan form is a strong indication of the fact that the petitioner has handed over the fees remittance to Calicut university on 13.06.2017 itself to the staff of ACE. On the face of the challan itself it is seen specifically noted that the last date for remittance of fees is 16/6/2017. The ACE has not shown due diligence
W. A. No. 241 of 2022 -25- expected from his part and has failed to render the necessary services to the customer, thereby depriving him of a priceless opportunity to get admission in merit seat in a reputed institution of his dream. The ACE failed to keep up the standard of care and responsibility expected of him.
The ACE Mr. Ramanathan could have very well substantiated his stand by producing the CCTV footage which would be a clinching evidence in this matter. Inspite of a direction from the District Project Manager, Akshaya he has not produced the same which is well within his power and possession. The inspection report of the said officer says that the digital video recorder was found to be removed and the camera and connection is seen in the centre. There is little chance for the petitioner to commit a willful delay in a matter like this as alleged by the Akshaya entrepreneur Mr.Ramanathan. His version to the effect that the amount was paid only on 19/6/2017 cannot be taken for granted as the petitioner will not a make such a move after the last date for remitting the fees. It can only be presumed that the fees was handed over by the petitioner to the staff of ACE on 13/06/17 and the ACE has remitted it only on was corrected as 13/6/2017 to save their skin. Viewing from this perspective, it can be safely presumed that this is a clear instance of laches and malpractice on the part of ACE which depicts the poor performance level of the ACE and grave dereliction of his duties towards the customer.
Moreover reports of enquiry officers on hearing namely District Co-ordinator, Akshaya & District Planning Officer, W. A. No. 241 of 2022 -26- Palakkad, Pirayiri Grama Panchayat Secretary, District Project Manager, Akshaya recommends the cancellation of license of Krishna Road Akshaya owned by Sri. Ramanathan A.
In the agreement cited as ref.(10) above, it is clearly stated that the Akshaya entrepreneur shall have no right to deny or delay rightful governmental service to any citizen during the working hours (as per clause A 1(viii).) It is also stated that the akshaya entrepreneur shall ensure proper service and customer satisfaction. Further clause F deals with termination of akshaya ACE. Sub clause (ii) says that the local body resolution may recommend termination based on the serious violations of agreement conditions, malpractice by ACE, poor physical performance and acting against public interest.
Based on the matters discussed above, it is reasonable to conclude that the allegations in the petition are correct and that the petitioner has lost a valuable opportunity to get admission in a reputed institution due to the inaction and dereliction of duty on the part of the ACE. The resolution of local body and the report of enquiry officers also substantiate the same.
As already stated above, since the ACE has violated various conditions in the agreement warranting a termination of his license and since the local body has recommended for termination of the license and also taking into consideration of the enquiry reports and other records and evidences in this matter, it seems to be a fit case for invoking the powers under sub clause 3 of clause F of the agreement cited as ref.10, and it is hereby ordered that the license of akshaya centre owned by Sri.
W. A. No. 241 of 2022 -27- Ramanathan A of Krishna Road location (Location Code: PKD166) stands terminated from the date of this order.
Pirayiri Grama Panchayath Secretary is hereby authorized to serve the notice of termination of Akshaya e centre owned by Sri. Ramanathan A of Krishna Road location (Location Code: PKD166) and to report the closure of the same. In tune with sub clause (iv) of clause F of the agreement, Krishna Road location is hereby declared vacant and the District Project Manager, Akshaya is authorized to start new selection process of ACE.”
22. Whatever that be, a perusal of Ext. P5 order dated
08.08.2017 passed by the District Collector, Palakkad, makes it clear that an enquiry has been conducted by the Secretary of the Grama Panchayat, a report has been submitted, a resolution has been passed by the Panchayat, and after providing an opportunity of hearing to the appellant, impugned order has been passed, terminating Akshaya e- Kendra owned by the appellant. Therefore it can be clearly deduced that there is no illegality, arbitrariness or other legal infirmities in the
order by the District Collector and the proceedings of the Panchayat.
23. Merely because the District Project Manager has given a
letter to the complainant saying that the license would be cancelled, that would not attribute any malafides on the part of the author of the W. A. No. 241 of 2022 -28- order, terminating the Akshaya e-Kendra. On an analysis of the facts and circumstances, we do not think the petitioner has made out any case for interference with the
judgment of the learned Single Judge, in an intra court appeal, there
being no jurisdictional error other legal infirmities justifying us to do so. Accordingly, writ appeal is dismissed. Sd/- S. MANIKUMAR CHIEF JUSTICE Sd/- SHAJI P. CHALY JUDGE ///TRUE COPY/// P. A. TO JUDGE Eb