P. KARUPPIAH Vs. THE DEPUTY REGISTRAR OF CO-OPERATIVE SOCIETIES, PERIYAKULAM AND THE SPECIAL TRIBUNAL FOR CO-OPERATIVE SOCIETIES, MADURAI

JUDGEMENT

(1.) THE appellant was proceeded against under S.71 of the Tamil Nadu Co -operative Societies Act 53 of 1961, hereinafter referred to as the Act and he has been mulcted with the liability to contribute a sum of Rs. 8777 -67 towards the deficiencies caused to the assets of Uthamapalayam Co -operative Land Development Bank, hereinafter referred to as the Bank, by way of loss of interest during 1968 -69 and 1969 -70 while he acted as Secretary -in -charge and Accountant -in -charge of the Bank. The gravamen of the charges levelled against the appellant was that he was responsible for the delay in remittance of members' loan collections to State Land Development Bank and huge amounts were drawn from the State Land Development Bank and kept idle by the appellant in current account without disbursement to the concerned borrowers and these acts and omissions resulted in loss of interest to the Bank. The basis of the charges was wilful negligence on the part of the appellant within the meaning of S.71 of the Act. The first respondent passed the initial order holding that the appellant was guilty of the charges and directed him to contribute the amount indicated above to the Bank. The appellant preferred an appeal to the second respondent and the second respondent did not find a warrant to differ from the views of the first respondent and dismissed the appeal. This obliged the appellant to prefer W.P. 1955 of 1978 to this Court. Padmanabhan, J. heard the writ petition and on the view that both the first respondent and the second respondent have found the appellant guilty of wilful negligence and their findings being factual, do not call for interference by this court in writ proceedings, dismissed the writ petition. This writ appeal has been preferred by the appellant as against the order of the learned single Judge. Mr. G. Subramaniam, learned counsel for the appellant, would canvass two aspects before us. The first aspect is, that the appellant was not specifically charged with the duties and obligations with regard to remittances and withdrawals as per the charges levelled against him and there is no proceeding which has specifically cast upon the appellant such duties and obligations. Learned counsel for the appellant drew our attention to the by -laws which have been referred to both by the first respondent and the second respondent as casting a duty on the appellant with regard to the remittances and withdrawals. Bylaw 29A (b) and bylaw 29A (d) have been referred to in this connection. We have been furnished with copies of the said by -laws and we find that bylaw 29A (b) is general in nature and merely speaks about the Secretary's responsibility for the executive administration of the bank, subject to the control of the President. Bylaw 29A (d) is also general in nature and speaks about the secretary being in custody of all the properties of the Bank and about the power of the secretary to operate the bank account. By a reading of the bylaws, we are not able to spell out any specific duly or obligation on the part of the appellant, with regard to remittances and withdrawals. In the absence of the casting of such specific duties or obligation on the appellant with regard to remittances and withdrawals, by any acceptable proceeding, governing the services of the appellant when he acted as the secretary -in -charge or accountant -in -charge, it will not be in order to pin down the liability for loss of interest on the appellant. The appellant has been mulcted with the liability only on the basis that he has by acts and omissions of wilful negligence caused loss to the bank. For this action, it must be first established that there were duties and obligations specifically cast upon the appellant, of which he committed breach. If there is no clarity as to the specific duties and obligations cast upon the appellant with regard to remittances and withdrawals, then the very basis of the charges must be held to be lacking. That is the position here. Negligence in this context presupposes existence of specific duties and obligations and breach thereof. If the duties and obligations are not specifically defined and delineated, one could not pin down the culpability of breach thereof on the person concerned. This aspect could not be a matter of presumptions and assumptions but necessarily must be a matter of concrete materials. We find that the probable nexus between any act of omission on the part of the appellant and the resultant loss to the bank has not been made out at all for the simple reason there is no material exposed in the case, making out the casting of specific duties and obligations upon the appellant in this behalf. Hence, we are obliged to sustain the first ground of attack, put forth by the learned counsel for the appellant.

(2.) THE second aspect canvassed by the learned counsel for the appellant is that, assuming that the petitioner was cast with specific responsibility or obligation or duty with reference to the remittances and withdrawals, yet, the alleged acts and omissions with which the appellant was charged, could not be said to have been tainted with 'wilful negligence', which has been construed by pronouncements of the Court as meaning something done either by commission or omission, in a deliberate and reprehensible manner, with reckless callousness and with a supine indifference, and not by accident or inadvertence without taking due care and precaution ordinarily expected from a reasonable and prudent man under the existing circumstances. Learned counsel for the appellant took the trouble of citing before us pronouncements of a number of single Judges of this court. I earned counsel for the appellant would submit that even in the field of inference, there is no possibility of characterising the alleged acts and omissions on the part of the appellant as tainted with 'wilful negligence'. We would have gone into this question, but we find that the answer given by us with regard to the first contention in favour of the appellant has served his purpose and we are of the view that for the present case we need not trouble ourselves with regard to this aspect. The learned single Judge, we find, has omitted to take note of the crucial aspect with regard to the casting of specific responsibility or duty or obligation on the appellant with regard to remittances and withdrawals. As we have already pointed out, there is no material evidence exposed in this case, showing that position. In the absence of the said position being made out against the appellant, it is not possible to sustain the proceedings which culminated in the mulcting of the liability on the appellant Taking note of this feature, we are obliged to interfere, in writ appeal and accordingly the writ appeal is allowed, the order of the learned single Judge is set aside and the writ petition W.P. 1955 of 1978 is allowed. We make no order as to costs both in the writ petition and in the writ appeal.