G.P.MATHUR, J. - (1.) THIS writ petition under Article 226 of the Constitution has been filed for quashing of the recovery certificate dated 27-12-2001 issued against the petitioners directing them to deposit Rs. 30,300.
(2.) THE petitioner No. 1 claims to be the head mistress and petitioner No. 2 claims to be a member of the committee of management of an unaided institution known as Rubi Primary School, situate in Juhi, Kanpur Nagar. The State Government gives scholarship to Scheduled Caste students who are studying even in the unaided institutions. A report was received that a substantial amount of money had been withdrawn by the alleged managers and principals of the institutions, which were actually not in existence, by submitting forged and fictitious documents showing disbursement of scholarship to Scheduled Caste students. An enquiry was conducted and then it was found that between 1997-98 and 1999-2000 a sum of Rs. 1,75,32,660 (Rs. one crore seventy-five lakhs thirty-two thousand six hundred and sixty) had been withdrawn by the managers and principals of such institutions which were not in existence in Kanpur City. An FIR was then lodged by Sri D.K. Singh, Zila Samaj Kalyan Adhikari, at P.S. Kotwali Nagar, Kanpur Nagar, on 17-9-2000, on the basis of which a criminal case was registered under Sections 420, 408, 409, 468 and 471 IPC. The petitioners are also named in the FIR as they are joint account holders of the account in which scholarship money was transferred and thereafter, under their signatures the money was withdrawn from the bank. The police after investigation submitted charge-sheet against the petitioners, in the competent Court. The allegation against the petitioners is that they withdrew the amount from the bank under their signatures and, thereafter, misappropriated the same. Thereafter, at the instance of the Zila Samaj Kalyan Adhikari (Social Welfare Officer), Kanpur Nagar, the Collector has issued a recovery certificate for recovery of Rs. 30,300 from the petitioners as arrears of revenue. Learned Counsel has submitted that there is no provision of law under which the amount may be recovered from the petitioners as arrears of land revenue. Learned Standing Counsel has on the other hand, submitted that in the facts and circumstances of the case, the amount can be recovered as arrears of land revenue under The Public Accountant's Default Act, 1850 (Act 12 of 1850). Section 4 of the Act empowers the head of an office to proceed against any public accountant for any loss or defalcation in his her accounts as if the amount thereof were an arrear of land revenue due to Government. Section 3 defines a 'public accountant' and it means any person who as Official Assignee or Trustee, or as sarbarahkar, is entrusted with the receipt, custody or control of any moneys or securities for money, or the management of any lands belonging to any other person or persons. There is no dispute that the Samaj Kalyan Vibhag (Social Welfare Department) gave money for disbursing scholarship to the Scheduled Caste students. The amount was transferred from the Government treasury to a joint account opened in the name of the manager and principal of the institution. The amount was withdrawn from there under the signatures of the petitioners ostensibly for the purpose of disbursing the same to Scheduled Caste students. However, instead of actually giving the money to the students by way of scholarship, she misappropriate the same. When the money was transferred from Government treasury to the bank-account being operated by the principal and the member of the managing committee of the institution, they were acting in the capacity of a trustee for actually disbursing the same to the Scheduled Caste students. The money was not meant to be retained or utilised personally by the member of the managing committee or the principal of the institution nor it could be utilised for any other purpose. They had to hold the money as trustees for the purpose of disbursing the same to the Scheduled Caste students. Thus, there cannot be any doubt that the petitioners were “public accountant” within the meaning of the Act. Consequently, it can be recovered as if it was an arrear of land revenue under Section 4 of the Act on account of loss of money. Thus, the contention of the learned Counsel for the petitioners that the amount cannot be recovered as arrears of land revenue has no substance.
(3.) LEARNED Counsel for the petitioners has placed reliance on a Division Bench decision in Bala Prasad Agnihotri v. U.P. State Public Service Tribunal and others, 2001 (2) LBESR 501 (All) : (2001) 3 UPLBEC 2059, where an order for recovery of certain amount from a Government servant, who had defalcated the Government money, was quashed. The only reason given for quashing the order was that no statutory provision had been shown to the Bench under which the amount could be recovered as arrears of land revenue. The other case relied upon by the learned Counsel for the petitioners is P.C. Chaturvedi, (Contractor) v. The Collector, Mathura and others, 1996 Revenue Decision 81, where recovery proceedings initiated against a contractor at the instance of an executive engineer were quashed on the ground that Revenue Recovery Act, 1890, as amended by the Revenue Recovery (Uttar Pradesh) Amendment Act, 1965, did not empower the Collector to recover the amount. In both these decisions, the attention of the Bench was not drawn to the Public Accountant's Default Act, 1850, nor there is any reference to the aforesaid Act and, therefore, they cannot be any assistance to the petitioners.;