1. The appellant was the President of the Panchayat Board of Veeravanallur and on the 12th November, 1938, he was surcharged in a sum of Rs. 240-14-0 under Rule 5 of the Surcharge Rules of the Madras Local Boards Act. He filed a petition in t+he Court of the Lisurct Judge of Tinnevelly to have the surcharge set aside. The petition was dismissed and this appeal is against the order of the District Judge.
2. The surcharge was made in connection with a payment of Rs. 683-14-0 for the repair of a stretch of road within the Veeravanallur Union limits. The objection taken was that the appellant had provided in the estimates for leads for metal, gravel and earthwork of unnecessary length. Rule 5 of the Surcharge Rules provides that any auditor empowered by the local Government may charge against any person responsible therefor the amount of any deficiency or loss incurred by the negligence or misconduct of that person. In short, therefore, the appellant was surcharged on the allegation that through his negligence the estimates' for the repair of the road had provided for leads for the material required of a length beyond the necessary length which had resulted in a loss of Rs. 240-14-0.
3. The first question is, therefore, whether the leads provided for in the estimates were in fact unnecessarily long. the evidence on which the learned District Judge had to decide this question was the evidence of the appellant himself and the evidence of a local fund Assistant Engineer who, after the Veeravanallur Board had been suspended, check-measured for the District Board the work done under the estimates now in question. The relevant part of his evidence was this. He said that for metal four furlongs had been allowed, whereas the proper lead was two furlongs, that for gravel one mile three furlongs was allowed whereas the proper lead was two furlongs, and that for earth-work a lead of 250 yards was given whereas no lead was required. The appellant's evidence in examination in chief was extremely brief and en the question at issue he said merely that the metal, gravel, earth, etc., had teen taken from the places for which they were billed for. It would be difficult in any case to say that the learned District Judge was not entitled to prefer the evidence of the expert witness to the perfunctory evidence of the appellant. There were, however circumstances in the case which can leave no room for doubt at all that the evidence of the Engineer was rightly preferred to that of the President. Under Rule 53 of the Union Manual the sanction of the Union Panchayat is sufficient only for works the cost of which dees not exceed' Rs. 250. For works costing more than that amount, the sanction of the District Beard is necessary. Further under Rule 57 all works costing Rs. 100 or less executed in Unions are to be check-measured by the Chairman of the Panchayat Board while those ecsting mere are check-measured by the President of the District Board or by a responsible officer under his eiders The appellant did not prepare one estimate for the work, although the stretch of road to be repaired was continuous and it was all repaired by the same contractor. He prepared seven separate estimates each for an amount of Rs. 97-12-0 or Rs; 97-10-0. The result of this procedure on his part was that the Panchayat Board was enabled with some semblance of legality to sanction all the seven estimates, which they did, and that the work was check-measured by the appellant himself instead of by the District Board President or a responsible officer of the District Board. It is certainly a most extraordinary procedure to draw up seven separate estimates for one stretch of road, the contract for the repair of which was with one contractor; and the learned District Judge was undoubtedly entitled to draw an inference adverse to the appellant from the way in which these estimates were separately prepared and put through the Panchayat Board. I have no doubt, therefore, that the District Judge was right in accepting the evidence that the loss of Rs. 240-14-0 had been caused by the fact that leads of unnecessary length had been included in the estimates.
4. The next question is whether this loss was due to negligence on the part of the appellant. As already stated, the appellant's own case is that the leads were correct. He also, as appears from paragraph 7 of his petition, stated that it was he himself who allowed these leads. It is plaint even if the leads were not given wrongly of design, that the slightest inquiry in his own village would have apprised the appellant of the correct distances to be shown. He was therefore in my opinion, for this reason, guilty of negligence. The fact of his negligence however is established on still stronger grounds. Quite apart from any question of misconduct the appellant should have known that it was most improper for seven separate estimates each below Rs. 100 to have been prepared; and, if a proper and consolidated estimate had been prepared, the sanction of the District Board and consequent expert examination of the estimates and check-measurements of the work would have been required. The negligence therefore of the appellant in not conforming to the correct procedure resulted in the absence of expert control and so to the loss of Rs. 240-14-0 through the defective estimates. On the facts, therefore, the District Judge was right, in my opinion, in holding both that there was a loss due to the incorrect estimates and that the loss was due to negligence.
5. It has been argued by earned Counsel for appellant that in any case the appellant cannot be made personally responsible since the estimates had to be and were sanctioned by the Panchayat Board so that, if any liability to surcharge was incurred, it was the Board as a body that should have been held liable and not the appellant personally. In support of this contention earned Counsel has referred us to a decision reported in Secretary of State for India in Council v. Sivasankaram Pillai (1935) 70 M.L.J. 404 : I.L.R. Mad 59 and also to a decision of the Court of Appeal in England in The King v. Robert (1908) 1 K.B. 407. Neither of these decisions, in my opinion, is in point. The Secretary of State for India in Covncil v. Sivasankaram Pillai (1935) 70 M.L.J. 404 : I.L.R. Mad 59 was a case in which the President of a local body had been surcharged for alleged negligence in allowing appeals against profession tax which were time barred. It was held that the surcharge could not be sustained on the ground that the appellate body was the Board, and that the President had no more responsibility for the decision of the body than any other member of the Board. The English case cited is clearly distinguishable for the reason that the wording of Section 247 of the Public Health Act and the wording of Rule 5(1) of the Surcharge Rules of the Madras Local Boards Act are not the same. In Section 247 of the Public Health Act the words used are ' the person accounting,' whereas in Rule 5 the words used are ' any person responsible therefor,' plainly -words of much wider scope than ' a person accounting.' Taking the plain words of Rule 5 it seems to me impossible to say that the appellant cannot be held to be the person responsible for the loss. It was he who prepared the estimates, it was he who on his own admission estimated the leads, and it was he who, by dividing what should have been one estimate into seven estimates, made it possible for the Board to sanction them with the result that expert scrutiny was excluded. It is this which distinguishes the present case from the case reported in Secretary of State for India in Council v. Sivasankaram Pillai (1935) 70 M.L.J. 404 : I.L.R. Mad 59. In Secretary of State for India in Council v. Sivasankaram Pillai (1935) 70 M.L.J. 404 : I.L.R. Mad 59 the President was no more responsible for the decision of the Board than any other member. In the present case the President has done acts himself on his own responsibility which, unless there was complicity between him and the members of the Board, must have misled them and which caused the defective estimates to escape unnoticed. In my opinion, consequently, the appellant was rightly surcharged and his petition to the District Judge was rightly dismissed. I would therefore dismiss this appeal with costs.
6. I agree.