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(v) (2009) 4 MLJ 992 (K.Ajay kumar gosh and others v. Tribunal for Co-operative Cases, (District Judge of Kanyakumari District) Nagercoil and another);

20. In the light of the decisions referred to above, it is clear that to pass surcharge order under Section 87 of the Act, appellants should have done an actionable wrong either by commission or omission in a deliberate and reprehensible manner with reckless callousness and with a supine indifference, without taking due care and caution ordinarily expected from a reasonable and a prudent man under those existing circumstances. In the absence of such categorical finding by the Respondents, it is not possible to mulct the appellants with the loss caused to the society.

74. On going through the orders passed by the concerned Authorities including the judgments of the Tribunal passed in C.M.A.Nos.4 of 1996 and 146 of 1995, we are of the considered view that the acts of omissions and commissions committed by the Appellant could not be construed by no stretch of imagination that they would amount to misapplication but on the other hand, this Court is of the considered view that the Appellant/Petitioner had not discharged his duties and obligations in a proper manner and he is squarely responsible for the culpability of breach thereof and in the instant case on hand, there are overwhelming and available concrete materials go to show that the Appellant/Writ Petitioner had not acted honestly, while discharging his functions as the Special Officer of the Society and therefore, by his actions, he had caused a wilful loss to the Society and suffice it for us to make a mention that he had not taken due care and caution ordinarily expected of a sensible and prudent person and consequently, he had committed the actionable wrongs in a callousness manner exhibiting his wilful negligence and supine indifference and therefore, the Appellant cannot escape from the purview of the Surcharge proceedings dated 07.07.1993 and 15.12.1994 initiated against him by the Authority concerned, which are perfectly valid in the eye of law. 

15. It is well settled that in surcharge proceedings, it must be proved actionable wrong either by commission or omission in a deliberate and reprehensible manner with reckless callousness and with a supine indifference, without taking due care and caution, which a prudent and reasonable man would take in such circumstances.

16. In the present case, the second respondent society has not alleged and proved and the first respondent has not held that by deliberate negligence, the petitioner has caused loss to the second respondent society. Further, it is not proved before the first respondent the actual loss, if any, caused to the second respondent society. In addition to that, the contention of the learned counsel for the petitioner that no allegation was made against the petitioner that he was benefited by purchasing excess quantity of tamarind and Barani masala powder, has considerable force. The first respondent as well as the learned Judge failed to consider and apply the well settled principles for holding an employee responsible for the loss suffered by a society. They failed to appreciate all the facts and law in proper perspective and committed an irregularity in holding the petitioner responsible for the alleged loss suffered by the second respondent society.