Judgment:
ORDER
Hari Nath Tilhari, J.
1. By this petition, the petitioner has sought for quashing of Tribunal's Order dated 31.3.1994, passed in Appeal No. 411/92 and also to set aside the order passed by Respondent No. 1 dated 17.6.92, so far as it refers to the petitioner and also the enquiry report of Respondent No. 2 dated 8.3.90.
2. The brief facts of the case are that the petitioner had been working as an accountant in the Agricultural Produce Marketing Committee, Chitradurga. There were 15 Fixed Deposits in the name of the APMC., concerned, in D.C.C. Bank, Chitradurga and they were about to mature as per maturity dates given in Annexure-A. When the F.D.R's were about to mature, they were placed for instructions for renewal or the like. The decision was taken in the Meeting of the Board for renewal of the F.D.R's and said decision was affirmed vide., minutes of proceedings of the meeting of the Market committee held on 10.3.83 on Subject No. 22 and thereafter the F.D.R's were got renewed. When the Auditors audited the accounts of APMC., Chitraduga for the period 1983, they observed that requirements of Circular dated 8.3.1983, issued by the Government, were not complied with in letter and spirit. It further observed that if immediately after maturity the amounts had been utilized for discharge of loans, APMC would have saved the extra interest of 2 per cent on the loans and that instead as the F.D.R's had been renewed for a further period of one year, the Agricultural Marketing Committee had to suffer a loss to the tune of Rs. 39,600/ - by payment of interest. The proceedings were initiated to fasten the liability for the alleged loss and the Joint Director of the Agricultural Marketing Committee was appointed to inquire into the matter and he submitted his report in the context of audit objections. The Joint Director held that as per Clause-8 of Section 56 of the Karnataka Agricultural Produce Marketing Regulation Act, 1966, though the Secretary is responsible for all moneys credited or received on behalf of the market committee, he is not liable as he cannot give attention to these things and he will be having other work also. Therefore, the accountant who has not enlightened about the consequences of non-encashment and who has not brought it to the notice of the Secretary, therefore, is solely responsible for the loss as the accountant has failed to do his duty. Thus the accountant cannot be exonerated from the liability. Finally, he stated that the above mentioned two persons are responsible for the loss sustained by way of interest on the 15 Fixed deposits. After the Enquiry Report had been submitted, as per Annexure-L the Director of Agricultural Marketing, passed the order holding the petitioner-accountant of APMC to be solely liable for the loss sustained by the APMC on account of his negligence in discharge of his duties as an accountant. These were the proceedings held under Section-128 of the Act.
3. Feeling aggrieved from the order of the Director of Agricultural Marketing, the petitioner filed an appeal before the Appellate Tribunal. The Appellate Tribunal dismissed the petitioner's appeal by order dated 31.3.1994, as per Annexure-M to the Writ Petition. The Appellate Tribunal took the view that the appellant accountant cannot be said to be unaware that the Circular dated 8.3.83 and the contention that he was unware of Circular dated 8.3.83 cannot be accepted. With these findings it dismissed the petitioner's appeal. The Enquiry Committee, as appears from the perusal of the report, appears to have taken the view that the accountant should have brought to the notice of the Secretary the contents of the Circular and should have informed him of the same.
4. Feeling aggrieved from the orders impugned, the petitioner has filed this petition under Article-226 of the Constitution of India. Respondent No. 3 H.M. Ramakrishna Reddy, though has been served, has not put in appearance and has not filed any counter affidavit. Appearance has only been put on behalf of respondents 1 and 2 by Shri R.K. Hatte the learned Government Counsel.
5. I have heard Kum. Jayalakshmi Learned Counsel for the petitioner and Sri R.K. Hatti, learned Government Pleader, appearing on behalf of respondents 1 and 2. To avoid technical defect in the petition, the learned Government Pleader has also been asked to put in appearance on behalf of the Tribunal, whose order is challenged and the learned Government Pleader has taken the notice.
6. The Learned Counsel for the petitioner has submitted before me that the petitioner was not responsible for the loss and has been illegally held to be liable for the same. The Learned Counsel for the petitioner further submitted that the Enquiry Officer the Joint Director as well as the Director of Agricultural Marketing have started with the basic presumption that the market committee has suffered loss because the Government Circular dated 8,3.83 had not been brought to the notice of the Secretary of the Committee and as such the 15 F.D.R's were got renewed on the date of maturity for one year resulting in loss of interest that marketing committee might have earned on that, if the money would have been withdrawn, paid in discharge of loan and thereafter deposited etc., in consonance with the circular. The Learned Counsel submitted that this assumption of the authorities including the Appellate Authority, was per se based on misconception and has been the result of non-consideration and non-application of mind to the records of the committee, particularly the minutes of the Committee dated 10.3.83, and she submitted that these authorities have ignored from consideration this very material document in possession of the market committee. The Learned Counsel for the petitioner has invited my attention to Annexure -E to the Writ Petition, that is the minutes of the meeting of the market committee dated 10.3.83 and submitted that as such the fastening and passing of the liability on the petitioner is based on non consideration of very relevant material with the authorities. The Learned Counsel submitted that the committee when approved the proposal for renewal, had applied its mind and considered the Circular dated 8.3.83 and thereafter took the decision, so there is no question of petitioner's failure or non-failure to bring that Circular dated 8.3.83 to the notice of the committee, which sanctioned the renewal of the fixed deposits. Learned Counsel further submitted that after having taken into consideration that Circular, the committee had passed the orders, approving the renewal, no liability could be fastened on the petitioner and as the finding recorded by all - that is Enquiry authority and the order of the Joint Director and that of the Appellate Authority are the result of non-consideration of this material piece of evidence, the finding is vitiated by error of law apparent on the face of record and the orders need be quashed, whereunder the responsibility has been fastened on the petitioner.
7. The Learned Government Counsel submitted that when the Market Committee has suffered the loss, it has got to be reimbursed. Whether the loss has been because of negligence of the accountant or because of negligence of the Secretary or because of fault or negligence of both, the finding arrived by Enquiry Officer and the Director and Appellate Authority is one of fact.
I have applied my mind to the contentions made by Learned Counsels. The mistake of decision cannot be taken to be negligence, if and when after considering the documents the authorities arrived at a particular decision and the decision may be wrong in the opinion of some one or may be based on miscalculation, in my opinion nobody will be responsible for the loss, if it is not the result of negligence but is the result of bonafide decision, may be a mistaken or wrong decision. As the authorities have considered that letter or circular and then taken decision, then the decision cannot be said to be the result of negligence, may it be a wrong decision based on mis-calculation.
8. Section-128 of the Act, fastens liability in respect of any payment, which is made contrary to the Act, rules and regulations or bye-laws, then in that case or in cases where because of wilful negligence or breach of trust or misappropriation or the like, if such breach of the provisions of the law or wilful negligence is or are found on the part of any such person during the course of enquiry or inspection etc., then no doubt inquiry may be ordered and the persons who are responsible may be liable to repay or restore the money or the loss to the committee.
9. In the present case, as per Annexure-E, which is copy of the extract of the decision taken on Subject. No. 22, in the meeting conducted by the market committee on 10.3.83, it has been written as under:-
'After having gone through the circular bearing No. S.M.D. 423 BUD. 82, dated 8.3.83 issued by the Chief Marketing Officer, to take a decision to withdraw Rs. 2,25,000/- from the Savings Bank Account and to raise loan of Rs. 19.80 lakhs on the Fixed Deposits and to credit the same in the Government Treasury.'
Decision: Approved.
Sd/- Sd/-
Administrative Officer, APMC, Secretary.
Chitradurga,
10. Now the question is whether, it can be said to be an act of negligence, if after considering the circular, the decision has been taken and if there is negligence at all, whose negligence, when particularly this circular was before the committee in its meeting dated 10.3.83 and particularly when it is said that after having taken into consideration that circular, the decisions were taken.
11. In my opinion, no liability can be fastened on the accountant when the contents of the circular had been gone through by the Secretary and the Members of the Committee and the Administrative Officer. Any way this should not be taken as recording decision on the merits, but what I intend to point out is that this document has a very material bearing on the decision. This document has not been looked into and considered in the course of inquiry under Section - 128 of the Act and in the course of passing the order by the Director or by the Appellate Tribunal. It is well settled principle of law, if a finding is recorded against a person without material document or material piece of document being considered by the authorities conducting the inquiry and taking decision, such a decision can be said to be suffering from error of law apparent on the face of record and such report decisions and orders impugned deserve to be quashed.
12. Thus considered I hereby allow the Writ Petition quashing the decision of the Appellate Authority dated 31.3.1994 as well as that of the Director. It is for them to decide taking into consideration whether any case under Section -128 is made out, particularly when the proceedings reveal that the decision by the Market Committee was taken after having gone through the Circular dated 8.3.83. The decision which has been taken bona-fide, after consideration of the documents on record, though mistakenly, cannot be said to be a negligent act, though it may be wrong. Keeping this view, it is open to the authorities under Section 128, if they want to reconsider the matter, they may reconsider, but for the present, as the order impugned suffer from jurisdictional error in the sense that it suffers from error apparent on the face of record, the orders impugned contained in Annexure-L dated 17.6.92 and the appellate order dated 31.3.94 contained in Annexure-M, are hereby quashed. The enquiry report also being suffering from error apparent on record is also quashed. The petitioner shall not be compelled to deposit any sum in pursuance of joint directors report, the orders passed by the Director of Marketing Committee or the Appellate Authority based on the enquiry report.
The Writ Petition is thus finally allowed.