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2007 DIGILAW 554 (KAR)

TEEKAPPA FAKIRAPPA KAMBLI v. STATE OF KARNATAKA

2007-08-31

D.V.SHYLENDRA KUMAR

body2007
( 1 ) WRIT petition by a person who retired as joint director of the Agricultural Produce Market committee, Raichur with effect from 31-8-1995. ( 2 ) IT appears, subsequent to retirement, the government proposed to hold an enquiry into the conduct of the petitioner while he was in service and was working as joint director of the market committee at Raishur during the period between 14-9-1992 and 30-8-1995. This was sequel to certain audit report submitted on 8-5-2000 covering the periods 1995-96, 1996-97 and 1997-98 and wherein the audit wing had noticed certain financial irregularities particularly, late remittance of some amount collected as market fee from the member participants or agriculturists by one rachanna Gowda, sales assistant, who, it appears, had not promptly remitted the amount collected and for which he had issued receipts at the relevant time on the charge that the petitioner had not effectively supervised the functioning of such sales assistant and was therefore indirectly responsible for the misappropriation of funds by said Rachanna gowda, though for a temporary period. ( 3 ) PETITIONER had questioned the legality of initiating this action against him by the government, purporting to be under the provisions of the Rule 11 of the Karnataka Civil services (Classification, Control and Appeal)Rules, 1957, by filing an application before the Karnataka Administrative Tribunal. While the application was pending consideration before the tribunal, the learned Government advocate appearing for the State made a representation indicating, inter alia, that the Government was inclined to drop the proceedings against the applicant petitioner and therefore the tribunal disposed of the application as having become infructuous in terms of its order dated 5-8-2004 passed in Application No. 2560 of 2003 (copy is produced at Annexure-B to the writ petition ). ( 4 ) IT is thereafter the third respondent market committee through the second respondent director of agricultural marketing has become active by issuing another show cause notice dated 5-8-2004 (copy at Annexure-C) and followed up by another notice dated 20-2-2004 (copy at Annexure-D), indicating, inter alia, that action in terms of Section 128 of the karnataka Agricultural Produce Marketing (Regulations) Act, 1966 (for short, the Act)is proposed against the petitioner for which purpose an enquiry will be held etc. It is aggrieved by those notices at Annexures-C and d, the present writ petition seeking for quashing of these two notices. It is aggrieved by those notices at Annexures-C and d, the present writ petition seeking for quashing of these two notices. ( 5 ) WRIT petition having admitted and the respondents having put on notice, they have entered appearance through counsel. Respondents 1 and 2 are represented by Ms. Sheela anish, learned Additional Government advocate and the third respondent is represented m/s. Deshraj P. and Changalaraya Reddy. Statement of objections has been filed on behalf of the third respondent. It is indicated, inter alia, that the action is justified in terms of the provisions of Section 128 of the Act and therefore, no interference is called for and the writ petition deserves to be dismissed. ( 6 ) SRI M. R. Veerendra, learned counsel for the petitioner would vehemently submitted that no action can be taken against the petitioner by the market committee, as the petitioner has retired long back on 31-8-1995; that the action proposed on the very premise which had been the subject matter of challenge before the tribunal came to be withdrawn by the government itself and thereafter the market committee cannot become active for taking the proposed action on the very grounds. ( 7 ) IT is also submitted by the learned counsel for the petitioner that Section 128 of the act does not enable the market committee to take action against the petitioner; that the petitioner as proposed; is not one who has either misappropriated or misutilized any fund of the market committee; that it is not even the allegation against the petitioner as per these notices; that the enquiry is only a harassment to the petitioner than one which could serve either any real purpose or is it permitted in law. ( 8 ) THE show cause issued to the petitioner reads as under : (Vernacular matter omitted) ( 9 ) SECTION 128 of the Act reads as under : 128. ( 8 ) THE show cause issued to the petitioner reads as under : (Vernacular matter omitted) ( 9 ) SECTION 128 of the Act reads as under : 128. Liability of members, officers and employees of market committee for loss, waste, misappropriation etc.- (1) If, in the course of an enquiry or an inspection under section 123 or in the course of an audit under the rules, it is found that any person who is or was a member of a market committee or of the board or who is or has at any time been an officer or an employee of a market committee or board has made any payment contrary to this Act, the rules, the regulations or the bye-laws, or has caused any deficiency in the assets of the market committee or board by breach of trust or wilful negligence or has misappropriated or fraudulently retained any money or other property belonging to the said market committee or the board, the director of agricultural marketing may himself enquire or direct any subordinate officer authorized by him by an order in writing in this behalf to enquire into the conduct of such person. xxxxxxx ( 10 ) A perusal of the provisions of Section 128 of the Act indicates that if as a result of an enquiry or an inspection under Section 123 of the Act or as a sequence of an audit report, it is found that any person who is or was an officer or an employee of a market committee and if had made any payment contrary to the act or has caused any deficiency in the assets of the market committee or committed breach of trust or willful negligence or misappropriated or fraudulently retained any money or other property belonging to the said market committee, an enquiry can be held against such person and ultimately if it is found in the enquiry the person so responsible, an order may be passed compelling the person to contribute the amount of loss caused by the misconduct etc. ( 11 ) IN the case of petitioner, there is no allegation that the petitioner himself has caused any loss by any misappropriation or breach of trust or any such things. The only allegation is that the petitioner had been negligent in supervising etc. ( 11 ) IN the case of petitioner, there is no allegation that the petitioner himself has caused any loss by any misappropriation or breach of trust or any such things. The only allegation is that the petitioner had been negligent in supervising etc. When it is not disputed that the very person who had collected the amount has remitted it belatedly and it is only late payment, the misconduct if at all was on the part of such person who had made late remittance and it cannot be construed as any misappropriation of the funds of the market committee by the petitioner. The proposed action does not come within the scope of Section 128 of the act at all, having regard to the nature of allegation, which is sought to be levelled, in the show cause notice issued against the petitioner. Initiating action against the petitioner nine years after his retirement from service that too purporting to be under the provisions of Section 128 of the Act and when there is no need nor the possibility of recovering any amount from him on the allegation of misappropriation, is nothing but harassment to the petitioner and taking action under Section 128 of the act even after the Government had dropped the proceedings and on the premise that the Government had kept open such options to the marketing committee is more an abuse of the provisions of Section 128 of the Act than any bona fide exercise of power. ( 12 ) EVEN the State Government, which itself, had dropped the proceedings for the reason that the petitioner was an employee of the market committee, did not have any business or occasion to wake up the market committee by observing that it is open to the market committee to take such action. If that is the observation, it is clear that the Government had unnecessarily initiated action against the petitioner and made him to seek legal relief by approaching the tribunal and has only compounded its thoughtless action by leaving a tailpiece observing that it is open to the market committee to take such action as they deem fit even while submitting before the administrative tribunal that the application of the petitioner could be dismissed as having become infructuous in the wake of the Government intending to drop the proceedings against the petitioner. This is virtually to instigate the market committee to take action as against the petitioner and to continue the harassment. ( 13 ) THE impugned action is not sustainable in law and is accordingly quashed by issuing a writ of certiorari and Annexures-C and d to the writ petition stand quashed and writ petition is allowed with cost imposed on the first and the third respondents quantified at rs. 5,000/- (Rupees five thousand only) on each of them. ( 14 ) UNLESS the cost is paid by the first and the third respondents within a period of thirty days from today, either directly to the petitioner or by depositing the same before this court, the registry is directed to issue a certificate in favour of the petitioner for recovery of the cost as though it is a decree passed by the civil Court.