Salil Kumar Datta, J. - (1.) This Rule is directed against order dated 20-2-75 passed by the Assistant Registrar of Co-operative Societies in Appeal Case No. 5/Calcutta of 1974-75 affirming the Award of the Arbitrator in Dispute Case No. 40/ Calcutta of 1973-74. The petitioner was an elected director of the Andrew Yule's Co-operative Credit Society Limited which had its office at 8, Clive Row. It had also an Unit office at 38, Chowrangi Road, Calcutta for collection from and payment of sanctioned money to member employees of the Concord of India Insurance Co. Ltd. According to the arrangement, an elected director being an employee of the Concord Insurance was to handle society's fund appertaining to the Concord unit and to render statement of receipts and payments at the close of the day's transaction. A cash box inside a lock drawer was provided for keeping the money pending disbursement or remittance. The petitioner at the material time was an elected director of the society and handled the cash of that unit during the relevant period from 3-11-72 to 25-6-73. On 25-6-73 the petitioner reported to the Vice Chairman of the Society that he had kept a sum of Rs. 5842.38 P. on 22-6-1973 in the cash box, locked it and kept the same in the appointed drawer duly locked before he left his office for the day. On 25-6-73 when he opened the cash box he found that the cash amount stated above was missing. The Vice-Chairman reported the matter to the Chief Executive of the Concord Insurance who ultimately sent a report to the police. The police made investigation but the results were not known. Thereafter the Managing Committee considered the position and directed the petitioner to make good the loss arising out of the alleged disappearance of the cash within a specified time. As the requisition was not complied with the Society raised a dispute being No. 40/Calcutta of 1973-74 claiming Rs. 5842.38p with interest from the petitioner. The dispute was referred to the Arbitrator No. III for adjudication. The Arbitrator after taking evidence and considering the material on record decreed the amount in favour of the society directing the petitioner to pay the aforesaid amount with interest thereon from 26-6-73 till realisation.
(2.) The petitioner thereafter preferred an appeal referred to above and the Assistant Registrar of Co-operative Societies the appellate authority upheld the Award of the Arbitrator. The appellate authority raised two points for considerations (1) Whether the defendant appellant was custodian of the cash appertaining to Concord Unit? (2) Whether he had any civil liability arising out of the disappearance of the cash balance and if so, what is the extent of the liability? In coming to his decision the appellate authority in agreement with the Arbitrator noted the informal arrangement made by the Managing Committee in maintaining the cash. It was held that even so, such arrangement did not alter the fact of the petitioner's being the custodian of the cash and the petitioner was liable to make good the loss arising out of sheer negligence of his duty.
(3.) Mr. Banerjee appearing for the petitioner submitted that both the Arbitrator as also the, appellate authority acted without jurisdiction in holding that the petitioner was guilty of negligence when there was no issue framed on that basis. He submitted that if an issue was framed the petitioner would have been in a position to establish that he had followed the informal and conventional arrangement for maintaining the cash and was not negligent in any respect and the arrangement being imperfect the Managing Committee should have been held guilty of contributory negligence. On this ground it was submitted the Award was without jurisdiction and was liable to be interferred with under Article 227 of the Constitution.;