Judgment:
ORDER
P.S. Narayana, J.
1. In view of the interdependency and commonality of the questions involved, both these writ petitions are being disposed of by a common order.
2. Heard Smt. Bobba Vijayalakshmi and Sri Venkateswarlu Posani and the learned Government Pleader for Cooperation and also Sri B. Adinarayana Rao, representing the parties in both these writ petitions.
3. P.V.S. Ramabrahmam, writ petitioner in W.P. No. 7959 of 2008 prayed for issuance of a writ of Mandamus directing the respondents to pay gratuity amount of Rs. 2,81,375/- to the said writ petitioner along with interest at 12% with effect from 31.8.2002 and pass such other suitable orders.
4. The said writ petitioner is the second respondent in W.P. No. 27578 of 2008. The Punadipadu Primary Agricultural Cooperative Society, third respondent in W.P. No. 7959 of 2008, is the writ petitioner in W.P. No. 27578 of 2008. The said writ petition was filed praying for issuance of a writ of Certiorari calling for records pertaining to the orders in O.A. No. 70 of 2004 on the file of A.P. Cooperative Tribunal, Vijayawada, dated 08.12.2006, and quash the same and pass such other suitable orders.
5. In W.P. No. 7959 of 2008, on 28.4.2008, Rule Nisi was issued and in W.P.M.P. No. 10473 of 2008 the following order was made.
It is stated that the third respondent has been served with notice and he did not choose to enter appearance.
When the petitioner was in service, surcharge proceedings were initiated against him and others and he was jointly and severally liable to pay a sum of Rs. 2,81,000/-. Aggrieved thereby, the petitioner filed O.A. No. 70 of 2004 in A.P., cooperative Tribunal, Vijayawada. Through its judgment, dated 08.12.2006, the Tribunal had set aside the surcharge order against the petitioner. When the petitioner approached the second respondent for payment of gratuity, a memo, dated 24.01.2008, was issued stating that a sum of Rs. 2,81,000/- was paid to the third respondent-society towards surcharge amount. Since the order of surcharge was set aside, the third respondent-society would be under obligation to pay the amount to the petitioner.
Hence, there shall be interim direction to the third respondent-society to release a sum of Rs. 2,81,000/-, provided there are no orders of stay as regards the order passed by the Tribunal in O.A. No. 70 of 2004.
6. In W.P. No. 27578 of 2008 this Court issued Rule Nisi on 18.12.2008 and in W.P.M.P. No. 36140 of 2008 interim suspension had been granted on the said date.
7. The writ petitioner in W.P. No. 7959 of 2008, who is the second respondent in W.P. No. 27578 of 2008, being aggrieved of the interim suspension granted in W.PMP. No. 36140 of 2008 in W.P. No. 27578 of 2008 filed W.V.M.P. No. 1278 of 2009 praying for vacation of the said order. When the said application was taken up for hearing, the counsel on record in both the writ petitions made submissions in elaboration and also further made a request for final disposal of these writ petitions and, hence, these writ petitions are being disposed of finally.
8. Smt. Bobba Vijayalakshmi, the learned Counsel representing the writ petitioner in W.P. No. 27578 of 2008 made elaborate submissions taking this Court through the contents of the order under challenge in the said writ petition and further had drawn the attention of this Court to different provisions of the Andhra Pradesh Co-operative Societies Act, 1964 (hereinafter in short referred to as 'the Act' for the purpose of convenience) and would maintain that in the light of the clear evidence available on record, the Andhra Pradesh Co-operative Tribunal at Vijayawada (hereinafter in short referred to as 'the Tribunal' for the purpose of convenience) having recorded clear findings relating to the recklessness and negligence, totally erred in coming to the conclusion that the same would not amount to wilful negligence. The learned Counsel also pointed out to the proceedings relating to surcharge inquiry and also the findings recorded by the Tribunal at paras 42, 43, 46 and 51. The learned Counsel also would submit that the allegations are serious allegations relating to misappropriation and further public money is involved and in the light of clear evidence available on record, especially, the same being in pursuance of the inspection under Section 53 of the Act, the findings recorded by the Tribunal being unsustainable, the same is liable to be quashed. The learned Counsel also would further maintain that the result of writ petition W.P. No. 7959 of 2008 would depend upon the order, which may be made in W.P. No. 27578 of 2008. The learned Counsel also would maintain that in the light of the same, botyi these writ petitions may be disposed of by a common order. The learned Counsel also relied on certain decisions.
9. Sri Posani Venkateswarlu, the learned Counsel representing the writ petitioner in W.P. No. 7959 of 2008 and the second respondent in W.P. No. 27578 of 2008 would maintain that the Punadipadu Primary Agricultural Co-operative Credit Society Limited (hereinafter in short referred to as 'the Society' for the purpose of convenience) had chosen to challenge the order made in O.A. No. 70 of 2004 on the file of the Tribunal alone. The counsel also further pointed out that almost the entire evidence is common and further pointed out to issue Nos. 7 and 8 and also would further maintain that the Assistant Manager is not the employee of the Society. The learned Counsel also further pointed out to the evidence available on record and also had taken this Court through the findings recorded by the Tribunal, in particular, certain of the findings at para 40. The learned Counsel also explained under what circumstances the second respondent in W.P. No. 27578 of 2008 filed W.P. No. 7959 of 2008. The counsel also relied on certain decisions to substantiate his submissions.
10. Learned Government Pleader for Cooperation had pointed out to the respective stands taken by the parties, the evidence available on record and the findings recorded by the Tribunal and also further explained the scope and ambit of Section 60 of the Act.
11. Sri B. Audinarayana Rao also pointed out to the relevant portions of the order under challenge and made certain submissions.
12. Heard the counsel on record, perused the respective pleadings of the parties, the evidence available on record and also the findings recorded by the Tribunal in O.A. No. 70 of 2004 and batch.
13. The Punadipadu Primary Agricultural Co-operative society filed W.P. No. 27578 of 2008 for a writ of Certiorari calling for records pertaining to the orders in O.A. No. 70 of 2004 on the file of A.P. Co-operative Tribunal, Vijayawada, dated 08.12.2006. It is averred in the affidavit filed in support of the said writ petition that the second respondent worked as Assistant Manager of Kankipadu Branch of the District Cooperative Central Bank Ltd., Krishna District and retired from service on 31.8.2002 on attaining superannuation. It is also stated that when he was working at Kankipadu Branch, he was implicated in misappropriation to a tune of Rs. 1,81,800/-. The District Co-operative Officer, Krishna District ordered an inspection under Section 53 of the Act into the affairs of the petitioner society vide Rc. No. 5861/ 2002-D1, dated 05.9.2002. A report was submitted on 05.11.2002 revealing a total fraud of Rs. 28,39,560/- and so far as second respondent is concerned, liability of Rs. 1,81,800/- is found against him.
14. Further it is averred that the first respondent conducted an inquiry under Section 60 of the Act and issued proceeding in Rc. No. 2388/2002-E, dated 20.01.2004, fixing joint liability against the second respondent and three others for Rs. 1,81,800/-. He was found guilty of being negligent in supervising the loans of the society and SAO loans were drawn by forging the signatures of the loanees.
15. It may be appropriate to have a glance at Section 60 of the Act and the same reads as hereunder.
Surcharge:- (1) [Notwithstanding anything contained in any other law for the time being in force] where in the course of an audit under Section 50 or an inquiry under Section 51 or an inspection under Section 52 or Section 53, or the winding up of a society, it appears that any person who is or was entrusted with the organization, affairs or management of the society or any past or present officer or servant of the society has misappropriated or fraudulently retained any money or other property or has been guilty of breach of trust in relation to the society or has caused any deficiency in the assets of the society by breach of trust or wilful negligence or has made any payment contrary to the provisions of this Act, the rules or the bye-laws, the Registrar himself, or any person specially authorized by him in this behalf, of his own motion or on the application of the committee, liquidator or any creditor or contributor, may inquire into the conduct of such person or officer or servant and make an order requiring him to repay or restore the money or property or any part thereof with interest at such rate as the Registrar or the person authorized as aforesaid thinks just or to contribute such sum to the assets of the society by way of compensation in respect of the misappropriation, misapplication of funds, fraudulent retention, breach of trust, or wilful negligence as the Registrar or the person authorized as aforesaid thinks just:
Provided that no order shall be passed against any person referred to in this sub-section unless the person concerned has been given an opportunity of making his representation.(2) Any sum ordered under this section to be repaid to a society or recovered as a contribution to its assets may be recovered on a requisition being made in this behalf by the Registrar to the Collector in the same manner as arrears of land revenue.
(3) This section shall apply notwithstanding that such person or officer or servant may have incurred criminal liability by his act.
16. Further it is averred that respondent No. 2 filed O.A. No. 70 of 2004 on the file of the A.P. Cooperative Tribunal, Vijayawada, and the said appeal along with other appeals filed by others delinquents were allowed on 08.12.2006 setting aside the surcharge orders, dated 20.01.2004. Challenging the same, the present writ petition is filed.
17. It is also averred that the second respondent was entitled for a gratuity of Rs. 2,91,808/- and leave encashment of Rs. 97,526/-, in total Rs. 3,89,334/-. The petitioner filed E.P. No. 26 of 2004-05, Rs. 1,74,972/- for recovery of an amount of Rs. 1,35,900/- along with interest and E.P. No. 31 of 2004-05 for Rs. 59,097/- for recovery of Rs. 45,900/- with interest before the Deputy Registrar/OSD, DCCB, Krishna District. An amount of Rs. 2,87,000/- was deposited at Machilipatnam Branch in the name of the second respondent under the lien of the bank as per his consent letter submitted on 20.12.2004 for Rs. 2,87,000/-. The amount accrued to Rs. 3,47,168/- with interest as on 23.6.2005 when an amount of Rs. 2,81,375/- was paid to the society based on the consent letter of the second respondent and the balance amount of Rs. 65,793/- was credited to his Account No. 134999 at Machilipatnam Branch of DCCB. Having agreed to pay the amounts due to the society, the second respondent, after his appeal O.A. No. 70 of 2004, filed W.P. No. 7959 of 2008 seeking the amount of Rs. 2,81,375/- without disclosing the fact that he had already withdrawn the balance of Rs. 65,793/- which was credited to his account on 23.6.2005. This Court, in W.P.M.P. No. 10473 of 2008, dated 28.4.2008, granted interim direction to release an amount of Rs. 2,81,000/. Since the orders are not implemented, a contempt case C.C. No. 1253 of 2008 is filed.
18. It is also stated that the petitioner society could not file the writ petition immediately after the second respondent appeal being allowed due to financial strain and loss to the society. In view of the Debt Relief Scheme also the petitioner society was also not in a position to approach the Court in time. Further it is stated that the Tribunal allowed the appeal of the second respondent on the ground that it would not fall within the wilful negligence. The inspection report as well as surcharge proceeding reveals that the second respondent along with three other employees as having involved in forging the instruments in the names of the members, who sold away the lands and whose documents were returned, SAO loans were drawn by forging the signatures of the loanees.
19. Further stand had been taken that the petitioner society will suffer irreparable loss and hardship, if the order in I.A. No. 70 of 2004, dated 08.12.2006, is not suspended. The society is running at loss to a tune of Rs. 40.00 lakhs for the year 2006-2007. There is no money in the society to pay salaries to the employees. In fact, as of now the society is not having any employees. In such circumstances the said writ petition had been filed.
20. It is needless to say that the second respondent in this writ petition, as writ petitioner in W.P. No. 7959 of 2008, filed writ petition for a writ of Mandamus directing the respondents to pay gratuity amount along with interest. It is needless to say that the said direction was prayed for in the light of the order made by the Tribunal specified supra and the said order is being challenged in W.P. No. 27578 of 2008.
21. In the counter-affidavit filed along with W.V.M.P. No. 1278 of 2009 by the second respondent it is averred at para 3 that the second respondent in W.P. No. 27578 i.e., writ petitioner in W.P. No. 7959 of 2008, retired as Assistant Manager of Krishna District Cooperative Central Bank Limited on 31.8.2002. When he was Assistant Manager of the Bank, he functioned as incharge Branch Manager of the bank, when the regular bank manager was on leave. The members of the society used to obtain agricultural loans from their bank through the said cooperative society. An inspection under Section 53 of the Act was conducted into the affairs of the society. Section 53 of the Act reads as hereunder.
Inspection of books by financing bank or federal society:
A financing bank or a federal society shall have the right to inspect the books of any society, which is indebted to it. The inspection may be made either by an officer of the financing bank or federal society authorized by the committee of such bank or society or by a member of its paid staff certified by the Registrar as competent to undertake such inspection. The officer or member so [authorized to conduct inspection] shall at all reasonable times have free access to the books, accounts, documents, securities, cash and other properties belonging to or in the custody of the society and may also call for such information, statements and returns as may be necessary to ascertain the financial condition of the society and the safety of the sums lent to it by such bank or society. [The Officer or Member so authorized to conduct the inspection shall prepare a report of inspection, which shall be communicated to the Managing Committee of the society together with the findings of the Registrar thereon. It shall be he responsibility of the Managing Committee to place the Inspection Report together with the findings of the Registrar before the General Body or Special General Body convened for the purpose for its information, within a period of one month of the communication of the Inspection Report by the Registrar. The Registrar shall be competent to initiate action under the provisions of this Act, if the Committee fails to take action as aforesaid:
Provided that such action shall not be nullified even if the General Body of the Society passes a resolution negativing the findings of the Registrar:
Provided further that notwithstanding anything contained in this Act and Rules made thereunder the bye-laws of a Society and the action of the Society in placing the Inspection Report along with findings of the Registrar, the Registrar shall not be precluded from taking, follow up action as may be required on the basis of Inspection Report.Explanation:- For the purposes of this section, 'Managing Committee' include a Committee constituted under Section 31(1)(a), and a person-in-charge appointed under Section 32(7)(a), and also a Special Officer appointed under Section 34 of this Act.]
22. Thereafter, the first respondent-Deputy Registrar of Cooperative Societies, issued surcharge order, dated 21.01.2004, under Section 60 of the Act. The said Section 60 of the Act already had been referred to supra. Ultimately he was made liable for a loss of Rs. 1,81,800/- jointly and severally. There is no allegation of misappropriation against him and the only allegation made against him is that he did not properly scrutinize and identify the documents of the loanees. As against the said order, an appeal was filed O.A. No. 70 of 2004 before the Tribunal as contemplated under Section 76 of the Act. Section 76 of the Act reads as hereunder.
Appeal:- (1) Any person or society aggrieved by any 5 decision passed or order made under Section 6, Section 9A, Section 9B, Section 9C, Section 12A, Section 13, Section 15A, Section 16, Section 17, Section 19, Section 21, Section 21A, Section 21AA, Section 23, Sub-section (3) of Section 32, Section 34, Section 34A, Section 60, Section 62, Section 64, Section 66, Section 70, Section 71, Section 73 and Section 117 may appeal to the Tribunal:
Provided that nothing in this sub-section shall apply to any order of withdrawal or transfer of a dispute under Sub-section (3) of Section 62.(2) On a reference made by the Registrar of Co-operative Societies, the Tribunal shall call for and examine the records of any proceeding which is appealable to it for the purpose of satisfying itself as to the legality or propriety of any decision or order passed and where it appears to the Tribunal that any such decision or order should be modified, annulled or reversed, the Tribunal may pass such order thereon as it may deem fit:
(3) Any appeal under Sub-section (1) shall, subject to the other provisions of this Act, be preferred within sixty days from the date of communication to the appellant of the decision, refusal or order complained of but the Tribunal may admit an appeal preferred after the said period of sixty days, if it is satisfied that the appellant has sufficient cause for not preferring the appeal within the said period.
(4) In disposing of an appeal under this section, the Tribunal may, after giving the parties an opportunity of making their representations, pass such order thereon as it may deed fit,
(5) The decision or order of the Tribunal on appeal 'shall be final,
(6) The Tribunal may pass such interim orders pending the decision on the appeal as may deem fit,
(7) The Tribunal may award costs in any proceedings before that authority to be paid either out of the funds of the society or by such party to the appeal as the Tribunal may deem fit.]
23. The Ex-Secretary of the society, Ex-Supervisor of the Central Bank and Ex-Manager of the Central Bank also filed separate appeals against the same surcharge order. The Tribunal made a common order, dated 08.12.2006. The appeal filed by the second respondent and the appeal filed by the Ex-Manager of the Bank were allowed and the appeals filed by the Ex-Secretary of the society and the Ex-Supervisor of the Central Bank were dismissed confirming the order of surcharge passed by the first respondent.
24. It is also the case of the second respondent in W.P. No. 27578 of 2008 the Tribunal specifically recorded a finding that he had not committed any misappropriation and there was no wilful negligence on his part in scrutinizing the loans. There was no deliberate or intentional negligence on his part. Mere non-verification of the genuineness of the original documents of the loanees, who had been regularly borrowing money, cannot be termed as wilful negligence, especially, in the absence of any allegation of misappropriation and, hence, he was not liable for surcharge. The Tribunal specifically found that the Ex-Secretary, Ex-President of the society and the Ex-Supervisor of the bank are liable for surcharge. It is also his case that the society had not chosen to assail the validity and correctness of the common order made by the Tribunal for about two years. After his retirement, Inspection Report was submitted on 05.11.2002 and surcharge order was passed on 20.01.2004. After his retirement his son died in an accident. Out of shock, his right portion of the body became paralytic. The bank did not release his gratuity on the ground of pendency of inspection into the affairs of the petitioner society. When he was on bed taking treatment, the bank transferred his gratuity amount of Rs. 2,81,275/- to the petitioner society towards discharge of the surcharge amount.
25. Further it is stated that he had submitted representation to the bank for release of his gratuity. The bank in turn, vide Memo dated 24.01.2008, intimated that his gratuity amount was transferred to the society to comply with the order of surcharge. Then he submitted representation to the society to return his gratuity amount appropriated by them. The society did not respond to the said request. Then, he filed W.P. No. 795 of 2008 before this Court and this Court by order dated 28.4.2008 directed the society to release a sum of Rs. 2,81,000/-, provided there is no order of stay regarding the order made by the Tribunal. As there was no response, he filed contempt case C.C. No. 1253 of 2008 in which appearance of the president of the society was ordered. At this stage, the society thought of filing the present writ petition challenging the order of the Tribunal after a lapse of two years. Surcharge order was passed against 5 persons making them jointly and severally liable. The Tribunal confirmed the order of the surcharge against 3 persons and dismissed as against the manager of the bank and this Assistant Bank Manager. It is also specifically pointed out that the society had not chosen to assail the order of the Tribunal in so far as the manager of the bank is concerned. Several other further facts also had been narrated and the relevant portions of the order under challenge also had been specifically pointed out.
26. It is needless to say that the respective pleadings of the parties, the averments made in the affidavit filed in support of the writ petition W.P. No. 7959 of 2008 and the stand taken by the second respondent in the said writ petition in the counter-affidavit again need not be repeated in elaboration.
27. Smt. Bobba Vijayalakshmi laid emphasis on the words 'it appears that any person who is or was entrusted with the organization, affairs or management of the society' in Section 60 of the Act and made submissions in elaboration relating to the aspect how the said bank officers, who were kept incharge of the affairs, also fall within the ambit of Section 60 of the Act. Further expressions 'breach of trust' and 'wilful negligence' also had been pointed out.
28. Sri Posani Venkateswarlu made submissions in elaboration in this regard stating that even the finding recorded by the Tribunal relating to recklessness and negligence being unsustainable, especially, in the light of the findings recorded by the Tribunal, no relief can be granted in favour of the society and, at any rate, even if the conduct of this Assistant Manager to be carefully examined, this would not answer the expression 'wilful negligence'.
29. It is brought to the notice of this Court by the learned Government Pleader for Co-operation that Nali Sridevi filed W.P. No. 6182 of 2005 and this Court by order dated 26-8-2008 allowed the Writ Petition. The said Writ Petition was filed for a writ of Mandamus declaring the proceedings dated 20-1-2004 issued by the Deputy Registrar of Co-operative Societies/Divisional Cooperative Officer, Vijayawada Division recommending criminal action to 3rd respondent against the petitioner i.e., Nali Sridevi as illegal, arbitrary and contrary to law and to pass such other suitable orders. The learned Judge of this Court after recording reasons set aside the impugned proceedings and allowed the Writ Petition subject to right of the respondents to initiate prosecution in the event of reversal of the order of the Tribunal. It is needless to say that the said Nali Sridevi had challenged the proceedings referred to supra. It is not as though the Society had challenged the order made in favour of Nali Sridevi by the Tribunal.
30. The Tribunal at paras 41, 42 and 43 appreciated the evidence available on record and recorded findings in detail. It is pertinent to note that the Tribunal allowed O.A. No. 63 of 2004 and O.A. No. 70 of 2004 setting aside the surcharge order made in Rc. No. 2388/ 2002-E, dated 20.01.2004; and O.A. No. 69 of 2004 and O.A. No. 75 of 2004, no doubt, were dismissed confirming the orders of the authority below made in Rc. No. 2388/2002-E, dated 20.01.2004.
31. It is not in serious controversy that the common evidence was recorded and common findings had been recorded and as far as the order made in O.A. No. 63 of 2004 is concerned the same had attained finality, since the same was not challenged, but however in W.P. No. 27578 of 2008 a portion of the common order, so far as it relates to O.A. No. 70 of 2004 alone is concerned, of the Tribunal had been challenged. For the reasons best known, the society had not chosen to challenge the order made in O.A. No. 63 of 2004.
32. In S. Sundaram v. V.R. pattabhiraman : AIR 1985 SC 582 while dealing with the expression 'wilful', no doubt, in the context of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 the Apex Court observed at para 21 as hereunder.
Before, however, going into this question further, let us find out the real meaning and content of the word 'wilful' or the words 'wilful default'. In the book A Dictionary' of Law by L. B. Curzon, at page 361 the words 'wilful' and 'wilful default' have been defined thus:
'wilful' - deliberate conduct of a person who is a free agent, knows what he is doing and intends to do what he is doing.
'wilful default' - Either a consciousness of negligence or breach of duty, or a recklessness in the performance of a duty.
Further at para 22 the Apex Court observed as hereunder:
'wilful' - intentional: not incidental or involuntary;
-done intentionally, knowingly, and purposely, without justifiable excuse as distinguished from an act done carelessly; thoughtlessly, heedlessly or inadvertently;
-in common parlance word 'wilful' is used in sense of intentional, as distinguished from accidental or involuntary.
P. 296-'wilful' refers to act consciously and deliberately done and signifies course of conduct marked by exercise of volition rather than which is accidental, negligent or involuntary.
The Apex Court at para 24 observed as hereunder:
In Black's Law Dictionary (Fourth Edn.), at page 1773 the word 'wilful' has been defined thus:
wilfulness' implies an act done intentionally and designedly; a conscious failure to observe care; conscious; knowing; done with stubborn purpose, but not with malice.
The word 'reckless' as applied to negligence, is the legal equivalent of 'wilful' or 'wanton'.
33. In Subbammal and Ors. v. The President, The Tenkasi Co-op. Urban Bank Ltd., Tenkasi AIR 1977 Mad 92 the learned Judge of the Madras High Court observed at paras 8 and 9 as hereunder.
The scope of the expression 'wilful negligence' occurring in various statutes had come up for consideration before Courts. In R. v. Dowries 1875-1 QBD 25 it was held that the statutory words 'wilfully neglects such child' are not satisfied by proof of some omission to provide medical aid. In Reg. v. Senior 1899-1 QB 283 while dealing with the same expression 'wilfully neglects' occurring in Section 1 of the Prevention of Cruelty to Children Act, 1894 Lord Russel, C.J. expressed that whether the words are taken together or separately, the meaning is very clear, that 'wilfully' means an act done deliberately and intentionally, not by accident or inadvertence so that the mind of the person who does the act can be said to go with it and that 'neglect' is the want of reasonable care, that is, the omission of such steps as a reasonable person would take. While dealing with the scope of the expression 'wilful neglect' occurring in Section 2 of the Married Women's Protection Act, 1922, the High Court of Australia in Cooper v. Cooper 65 CLR 162 (Aus) stated that the phrase connotes a deliberate and intentional act of a culpable nature and that it imports an intention to act or omit to act in a way which the person charged knows, or ought if he is not recklessly careless to have known, will amount to a breach of duty. P.R. Ramanatha Iyer in his 'Law Lexicon' has collected the various decisions interpreting the expressions 'wilful neglect' and 'wilful negligence'. According to the author the expression 'wilful neglect' means an act done deliberately and intentionally and not by accident or inadvertence so that it can be said that the mind of the person who does the act goes with it, that it implies an intentional and purposeful omission to do a certain act, and that it is an even more extreme term than gross and culpable negligence. The expression 'wilful negligence' according to the author means a conscious acting or failing to act in a reprehensible manner.
In Ardeshir Bhicaji v. Agent, G.I.P. Ry. Co., Bombay 54 Mad LJ 167 : AIR 1928 PC 24 the Privy Council dealing with the scope of the phrase 'wilful neglect' occurring in a Railway risk note issued under Section 72 of the Indian Railways Act, 1890 referred to the decisions in R. v. Downes 1875-1 QBD 25 and Reg v. Senior 1899-1 QB 283 above cited and held on the facts of that case that though there was ample evidence of neglect, there was no evidence or finding of wilful neglect and that therefore, there was no wilful neglect within the meaning of the risk note. The Supreme Court in R.C.N. Kulkarni v. State 1954 All LJ 822 while interpreting the words 'wilfully detains' occurring in Section 53 of the Post Office Act, 1898 observed that the word 'wilful' has been used by the Legislature to mean only such detention which was deliberate and for some purpose.
34. On a careful analysis of the factual matrix, the following are certain of the essential aspects which may be taken note of.
(1) It is not in serious controversy that the second respondent in W.P. No. 27578 of 2008 was not the employee of the society, but was the employee of the bank, the then Assistant Manager and he was just kept in charge of the affairs of the society;
(2) The negligence or recklessness in verification etc., alone had been alleged as against the second respondent in W.P. No. 27578 of 2008 and no specific allegation of misappropriation as such had been made;
(3) It is also not in serious controversy that the Manager and the Assistant Manager both challenged the same order of surcharge by filing O.A. No. 63 of 2004 and O.A. No. 70 of 2004 along with O.A. No. 69 of 2004, O.A. No. 75 of 2004 and the appeals O.A. No. 69 of 2004 and O.A. No. 75 of 2004 were dismissed and O.A. No. 63 of 2004 and O.A. No. 70 of 2004 were allowed setting aside the order of surcharge made in Rc. No. 2388/2002-E, dated 20.01.2004;
(4) It is also not in controversy that the order made in O.A. No. 63 of 2004, part of the common order referred to above was left unchallenged in a way the same had been attained finality;
(5) It is also not in dispute that the Manager and the Assistant Manager of the bank then are similarly placed and the order made in favour of the Assistant Manager in O.A. No. 70 of 2004 alone had been challenged by the society by way of W.P. No. 27578 of 2008;
(6) On the material available on record, it is clear that the Manager of the bank and Assistant Manager of the bank at the relevant point of time almost are similarly placed in relation to the surcharge order and virtually common issues and common evidence had been recorded and common findings had been recorded and this aspect would assume lot of importance, especially in the light of the findings which had been recorded by the Tribunal in relation thereto.
35. It is no doubt true that Sri Posani Venkateswarlu made certain submissions that the very recording of findings relating to negligence and recklessness, these findings are also unsustainable findings and this Court even while disposing of these writ petitions can specifically observe such findings recorded by the tribunal as bad in law, since such findings are not based on proper appreciation of evidence available on record. This Court is not inclined to further record any further findings in relation thereto, since this Court is thoroughly satisfied that in the light of the findings recorded by the Tribunal, since the conduct of the second respondent in W.P. No. 27578 of 2008 would not fall within the meaning of 'wilful negligence', the order made by the Tribunal cannot be found fault.
36. Hence, it is needless to say that W.P. No. 27578 of 2008 being devoid of merit the same shall stand dismissed. The resultant result would be that the direction prayed for by a writ of Mandamus in W.P. No. 7959 of 2009 to be granted.
37. Accordingly, W.P. No. 27578 of 2008 is hereby dismissed and W.P. No. 7959 of 2008 is hereby allowed. The parties to bear their own costs.