Madras High Court
K.Sankaran ...Revision vs The General Manager
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P.(MD).No.2486 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 09.07.2024
DELIVERED ON: 16.07.2024
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P.(MD).No.2486 of 2018
K.Sankaran ...Revision Petitioner/Respondent
Vs
1.The General Manager
Kanyakumari District Central Co-operative Bank
Nagercoil
2.The Deputy Registrar of
Kanyakumari Co-operative Societies
Nagercoil
Kanyakumari District
3.The Co-operative Tribunal
(Principal District Court)
Kanyakumari District ...Respondents/Respondents
PRAYER: The Civil Revision Petition has been filed under Article 227 of
the Constitution of India, to set aside the judgment and decree dated
06.08.2018 made in CMA(CS).No.47 of 2004 on the file of the
Co-operative Tribunal (Principal District Court), Kanyakumari District by
allowing this Civil Revision Petition.
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https://www.mhc.tn.gov.in/judis
C.R.P.(MD).No.2486 of 2018
For Petitioner :Mr.K.Ragatheesh Kumar
For M/s.Isaac Chamber
For R1 : Mr.D.Shanmugaraja Sethupathi
For R2 : Mr.C.Satheesh
Government Advocate
ORDER
The present revision petition has been filed by an Assistant working in the first respondent Co-operative Bank challenging the order passed in the surcharge proceedings which was confirmed by the Co-operative Tribunal in CMA(CS).No.47 of 2004 on the file of the Principal District Court, Kanyakumari District.
(A)Facts leading to the filing of this revision petition are as follows:
2.The petitioner was working as an Assistant in the Kanykumari District Central Co-operative Bank at Nagercoil. On 05.03.1999, the revision petitioner, a sub-staff by name Prabhu and a Jeep driver by name Sudalaiyandi were instructed by the Bank to collect a sum of Rs.
12,00,000/- from Vadaseri Branch and another sum of Rs.11,00,000/- from Nagercoil Town Branch.
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3.They had collected a sum of Rs.12,00,000/- from Vadaseri Town Branch and kept the suitcase in the Jeep under the custody of the driver. The revision petitioner Sankaran and the sub-staff Prabhu have entered into the Nagercoil Town Branch. After reaching the head-office, they found that the suitcase containing Rs.12,00,000/- from Vadasery Branch is found missing. A police complaint was lodged and ultimately, the complaint was closed by the police officials on the ground that it could not be traced.
4. The Central Co-operative Bank had approached the Oriental Insurance Company under 'Bankers' Indemnity Insurance Policy' for covering the risk including loss of cash stolen. The Insurance Company had settled the claim only to a tune of Rs.7,77,858/-. For non-payment of the balance amount, the Co-operative Bank had filed a Consumer Complaint in C.C.No.83 of 2002 on the file of the District Consumer Disputes Redressal Forum, Kanyakumari at Nagercoil and the same was dismissed on 27.05.2005. The Co-operative Bank had approached the State Consumer Disputes Redress Commission, Chennai in F.A.No.81 of 2007. The State Consumer Disputes Redress Commission was pleased to dismiss the appeal on 27.08.2010.
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5.Since the Co-operative Bank was not successful in getting reimbursement of the entire cash stolen, they had initiated proceedings under Section 81 of the Co-operative Societies Act as against the revision petitioner Sankaran, sub-staff Prabhu and the driver Sudalaiyandi. A report was submitted on 31.05.1999. As per the said report, all the three persons are held to be willfully negligent in handling the cash entrusted to them and a direction was issued to initiate stringent action as against the three employees.
6.Based upon the above said proceedings, a notice was issued for initiating proceedings under Section 87 of the Tamil Nadu Co-operative Societies Act for recovering a sum of Rs.4,22,142/- along with interest.
7.After recording the statement of all the parties, the Deputy Registrar had arrived at a finding that except driver of the Jeep, other two persons namely the revision petitioner and the sub-staff namely Prabhu are jointly and severally liable to pay to the Co-operative Bank for incurring loss to a tune of Rs.4,22,142/- along with 18% interest per annum. The said award was challenged by the revision petitioner herein in CMA(CS).No.47 of 2004 before the Co-operative Tribunal (Principal 4/12 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2486 of 2018 District Court), Kanyakumari District.
8.The District Judge after considering the submissions made on either side and perusing the records, had dismissed the appeal on the ground that the revision petitioner was negligent in handling the cash and he should not have handed over the cash to the driver and in case, if the revision petitioner had any doubt about the driver, he should have lodged a police complaint. Inaction on the part of the revision petitioner would clearly reveal that he was grossly negligent and confirmed the order of the Deputy Registrar. Challenging the same, the present civil revision petition has been filed by the Assistant of the Co-operative Bank.
(B)Contentions of the counsels appearing on either side:
9.The learned counsel appearing for the revision petitioner had contended that the revision petitioner is only an Assistant of the Co-operative Bank and he was not assigned with any duty or obligation to handover the cash or collect cash from various banks. When the duties and obligations have not been established by the Bank, the petitioner cannot be found to be guilty of willful negligence. He had further contended that the negligence, presupposes existence of specific duties and obligations and breach committed by the concerned employee.
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10.The learned counsel for the petitioner had relied upon the Hon'ble Division Bench judgments of our High Court reported in 1989-2 - L.W.330 (Karuppiah.P. Vs. The Deputy Registrar of Co-operative Societies), 2013-4-L.W.249 ( K.Govindasamy Vs. Ms.A.Rajamani & others) and another Division Bench judgement of our High Court reported in (2014) 3 Mad LJ 575 ( P.Elango Vs. M.R.K.Co-operative Sugar Mills) to impress upon the Court that when the duties and responsibilities have not been notified, the question of negligence, much less willful negligence cannot be established. The learned counsel for the revision petitioner had further contended that the suitcase containing Rs.12,00,000/- collected from the Branch Officer was left in the Jeep at the request of the Jeep driver. Missing of the said suitcase was found only when they reached the Head-Office after collecting Rs.11,00,000/- from the other branch. Therefore, the Jeep driver was the only person who was in the custody of the cash. After exonerating the said Jeep driver, the liability cannot be mulcted upon the Assistant who had entered into another branch for collection.
11.The learned counsel for the revision petitioner had further contended that immediately after coming to know about the missing of the 6/12 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2486 of 2018 cash, he has informed his superior officer and a police complaint was also lodged. The police officials have closed the said complaint as 'not traceable' and the report was also filed before the Judicial Magistrate concerned. The Co-operative Bank has not filed any objection to the final report submitted by the police. In such circumstances, Section 87 proceedings ought not to have been initiated as against the revision petitioner.
12.The learned counsel had further contended that the instead of making full claim before the insurance company, the Co-operative Bank has accepted part payment by the insurance company and thereafter has proceeded against their own employees under Section 87 of the Co-operative Societies Act which is not legally sustainable. Hence, he prayed for allowing the revision petition and to set aside the award passed against the revision petitioner.
13.Per contra, the learned counsel appearing for the Co-operative Bank had contended that when the work of collecting money from the branches were entrusted to the revision petitioner, he has not objected to the same that it is not his duty. He was accompanied by the sub-staff and the Jeep driver. They have collected a sum of Rs.12,00,000/- 7/12 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2486 of 2018 from one of the branches and kept the suitcase in the Jeep. Without taking proper care of the said suitcase, it had gone missing. Therefore, when the cash is entrusted to an employee, he had been willfully negligent in handling the said cash. Section 87 of the Tamil Nadu Co-operative Societies Act would get attracted. The respondent Bank had further contended that though the Bank had raised a claim for the entire amount before the Insurance Company, it was only partially honoured by the insurance company based upon the extent of liability. Therefore, no fault can be found on the part of the Co-operative Bank for not making a full claim. The partial payment made by the insurance company was also confirmed by the State Consumer Forum.
14.I have considered the submissions made on either side and perused the material records.
(C).Discussion:
15.The petitioner along with one Prabhu were instructed by the Head-Office of the Central Co-operative Bank to collect a sum of Rs. 12,00,000/- from the Vadaseri Branch and another sum of Rs.11,00,000/- from the Nagercoil Town Branch. The staff were also entrusted with a Jeep along with a driver by name Sudalaiyandi. The petitioner along with two 8/12 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2486 of 2018 others had collected Rs.12,00,000/- from Vadaseri Branch and kept the said suitcase in the Jeep. These facts are not in dispute.
16.According to the revision petitioner, when he attempted to take the suitcase into the Nagercoil Town Branch, the Jeep driver had instructed him to leave it in the Jeep, so that he can take care of it. Accepting his request, the revision petitioner had kept Rs.12,00,000/- in the Jeep. After coming out of Nagercoil Town Branch, the revision petitioner has not bothered or cared to verify whether the suitcase containing Rs.12,00,000/- is available in the Jeep or not. Only after reaching the Head-Office, he has found that the suitcase containing Rs.12,00,000/- is missing from the Jeep. Thereafter, a police complaint has been lodged. If really, the petitioner had doubted the involvement of the Jeep driver for missing of the suitcase, he would have lodged a specific complaint as against the Jeep driver.
17.It is not the case of the petitioner that the suitcase was stolen by anyone, but it is a case of missing of suitcase. Therefore, it is clear that the revision petitioner has not taken care or bothered to have safe custody of the suitcase containing Rs.12,00,000/- belonging to the Co-operative Bank. Therefore, it is a clear case of willful negligence on the part of the 9/12 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2486 of 2018 employee who was entrusted with handling cash.
18.The learned counsel for the revision petitioner had relied upon various judgements of our High Court including the Division Bench judgment to impress upon the Court that when his duties and obligations have not been specified, the question of willful negligence cannot be attributed to an employee. In the present case, when the revision petitioner was asked to collect money to an extent of Rs.12,00,000/-, he had readily agreed for the same and has undertaken the said work. Therefore, it is clear that he has been entrusted the work of collecting money from the branch offices. In such circumstances, it is too late to plead that he is not obliged or duty bound to collect cash from the branch office.
19.A perusal of Section 87 of the Tamil Nadu Co-operative Societies Act reveals that the surcharge proceedings can be initiated under Section 87 of the Act, in case where an employee is 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 willful negligence. It is an admitted case where the revision petitioner was entrusted with the work of collecting huge amount from the branch offices and due to his willful negligence in dealing with the cash entrusted to him by the branch office, the cash went 10/12 https://www.mhc.tn.gov.in/judis C.R.P.(MD).No.2486 of 2018 missing. Therefore, the contention of the revision petitioner is not legally sustainable. The judgments cited by him are not applicable to the facts of the present case.
20.In view of the above said deliberations, there are no merits in the revision petition and the same stands dismissed. No costs.
16.07.2024 Index : Yes/No Internet : Yes/No NCC : Yes/No msa To
1. The Principal District Judge Kanyakumari District
2.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
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