Judgment Ahmad, J. 1. This is an application in revision under Sec.25 of the Provincial Small Cause Courts Act by the plaintiff against the judgment and decree passed in a small cause court suit dismissing his claim for damages for the non-delivery of 41 tins of Dalda consigned from Wadi Bandar to Arrah. 2. It appears that the consignor on 29th January, 1952, delivered to the railway authorities at Wadi Bandar on the G.I.P. Railway a consignment of Dalda packed in tins comprising 2785 of 10 Lbs each and 600 of 21 Lbs, each under R/R 656/47 for transit to Arrah on the E.I. Railway. The consignment was carried in wagon No. 3935 and it reached Arrah on 9th February, 1952, at about 8.35 P.M. by 276 Down Goods train. At Arrah the consignment was found short of 41 tins of Dalda of 10 lbs each. Hence the suit for the recovery of Rs. 462-8-6 as the price of those 41 tins of Dalda and Rs. 23-8-6 on account of loss of profit at the rate of 5 per cent on the above amount and Rs. 12-8-0 on account of the cost of notices sent for the realisation of the aforesaid claim; thus for total sum of Rs. 498-9-0. 3. The Small cause court Judge found that the account of damages as given by the plaintiff in the plaint was correct and this finding given by the trial court has not been challenged now in revision. The only point of controversy raised in this revision is as to whether the loss incurred by the plaintiff is due to the negligence or misconduct on the part of the railway administration and its servants and as to whether the defendant is liable in law for the same. 4. It is the admitted case of the parties that the consignment was booked on a special reduced rate basis or what is known as owners risk rate as now provided under Section 74C of the Indian Railways Act, which for all practical purposes is to the same terms as the previous amended risk note B which was put in force since the year 1924. According to the defendant, the shortage was caused by a running train theft between Behia and Arrah under circumstances beyond the control of the railway administration and its servants and that as such the defendant was not liable for the loss. 5. Section 74C reads as follows:- - (1) When any animals or goods are tendered to a railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate (in this Act referred to as the railway risk rate), or in the alternative at special reduced rate (in this Act referred to as the owners risk rate), the animals or goods shall be deemed to have been tendered to be carried at owners risk rate, unless the sender or his agent elects in writing to pay the railway risk rate. (2) Where a sender or his agent elects in writing to pay the railway risk rate under Sub-section (1), the railway administration shall issue a certificate to the consignor to that effect. (3) When any animals or goods are carried or are deemed to be carried at owners risk rate, B railway administration shall not be responsible for any loss, destruction or deterioration of or damage to such goods from any cause whatsoever except upon proof that such delay, loss destruction, deterioration or damage was due to negligence or misconduct on the part of the railway administration or of any of its servants". 6. 6. The next section following it, namely 74D, is in fact a rider to it and that says:- - "Notwithstanding- anything contained in Section 74-0 -- (a) where the whole of a consignment of goods or the whole of any package forming part of a consignment carried at owners risk rate is not delivered to the consignee and such non-delivery is not proved by the railway administration to have been due to any accident to the train Or to the fire or (b) where, in respect of any consignment of goods or of any package which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of such consignment or package had been pilfered in transit, the railway administration shall be bound to disclose to the consignor how the consignment or package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor." It is not disputed that the facts of the present case are fully covered by Clause (a) of Section 74D, and therefore, the railway administration was bound to disclose to the consignor how the consignment was dealt with throughout the time it was in its possession or control. To discharge this obligation the railway administration at the trial examined 7 witnesses. D. W. I was, the railway shed clerk of Wadi Bandar. He deposed that after loading, the doors of the wagon were closed, sealed and riveted in his presence. D. W. 2 was Pasupati Nath. He was the guard in charge of 276 Down Goods Train which carried the wagon from Buxar to Arrah. According to his statement the train started from Buxar at 10.35 A.M and reached Behia that very day at 5-15 P.M. There it stopped for about 2 hours and 35 minutes. Thereafter starting from Behia it reached, Arrah on the same day at about 8-35 P.M. in one non-stop run. According to his statement the train started from Buxar at 10.35 A.M and reached Behia that very day at 5-15 P.M. There it stopped for about 2 hours and 35 minutes. Thereafter starting from Behia it reached, Arrah on the same day at about 8-35 P.M. in one non-stop run. He claimed that at Buxar he had checked the seals and rivets of all the wagons and found them intact and similarly he made another check of the seals and rivets of all the wagons when the train started from Behia and there also he found them all intact on both sides. At Arrah, however soon after the arrival of the train, he got an information from one of the watchmen on duty that the doors of one of the wagons were open. On getting this report he himself went and saw that the southern side door of wagon No. 3935 carrying the aforesaid consignment was in fact open. Thereupon he reported the matter to the Assistant Station Master at Arrah who according to him came and re-sealed the doors in his presence. This testimony of the guard was corroborated by two other witnesses. D. Ws. 5 and 6 and also by the entries made by him in his memo book (exhibit C) and those in the seal checking certificate (Exhibit F). D.W. 5 was the then Assistant Station Master and D.W.6 was the then watchman of the Watch and Ward Department of Arrah Station. D.W. 3 was another witness on this point. He was the then Assistant Station Master posted at Behia. He proved the entries, exhibits D to D6 in the Assistant Station Masters diary of that station to show that no irregularity had been reported to him there by the guard. Besides them, there were two more witnesses D.W. 4 the head watchman of the Watch and Ward Department at Arrah and D.W. 7 who then held the post of Assistant Goods clerk at that station. Their statements show that the wagon was opened at Arrah between 2 and 5 P. M. on 10th February 1952, and it was in their presence that the shortage of the aforesaid 41 tins was detected. The statements of these witnesses have been believed by the trial court and I see no reason nor was any pointed out to me justifying my interference with that conclusion. The statements of these witnesses have been believed by the trial court and I see no reason nor was any pointed out to me justifying my interference with that conclusion. Therefore, on the statements made by these witnesses it has to be accepted that the doors of wagon No. 3935 were opened somewhere on the way in between Behia and Arrah and the aforesaid 41 tins of Dalda were most probably stolen in the course of that transaction. Prima facie, therefore, no misconduct or negligence on the part of the railway administration can be fairly inferred from this part of the evidence adduced on behalf of the railway administration; neither there is any inkling about it in the evidence of the plaintiffs solitary witness, who alone on that side deposed on the point of negligence and misconduct. 7. Mr. Mustafi appearing for the petitioner has raised in support of this application three points, as was done on behalf of the plaintiff in the court below, to support the case of misconduct and negligence on the part of the railway administration. His first point is that the very fact that the goods train was running at a high speed between Behia and Arrah--may it be at 181/2 miles per hour as calculated by the court below or may it be at 22 to 25 miles per hour as deposed to by D.W. 2 -- was by itself sufficient to negative the Inference that the doors of the wagon could be opened on the way between Behia and Arrah while the train was in motion. In other words, his case is that the seals and rivets of the wagon must have been opened or broken at Behia station in collusion with some of the servants of the railway administration to facilitate the opening of the doors of the wagon and the removal of the aforesaid 41 tins of Dalda on the way while the train was in motion between. Benia and Arrah. In that view of the matter, according to the learned Advocate, the theft was the result of the misconduct on the part of the servants of the railway administration, and, therefore, the railway administration was liable for it. Benia and Arrah. In that view of the matter, according to the learned Advocate, the theft was the result of the misconduct on the part of the servants of the railway administration, and, therefore, the railway administration was liable for it. In my opinion, though this theory as to the removal of Dalda tins from the wagon cannot be ruled out completely, there is no material on the record to give any support to it. Further even if it be conceded that it is not easy to break the seal, and rivets while the train is in motion, it cannot be said that it is absolutely impossible. Therefore, this point fails. 8. Next Mr. Mustafi has argued that though the handbooks of the watch and ward Department at Arrah, Behia, Buxar and Mogalsarai stations were called for, the railway administration did not produce them excepting that of Arrah station and that was so in spite of the order of the court to that effect. Therefore, the court should have drawn an adverse inference against the railway administration and it should have held that the theft of the aforesaid 41 tins of Dalda was due to the misconduct-on the part of the railway administration. The non-production of the aforesaid handbooks no doubt is susceptible in law to an adverse inference against the railway administration but on the facts of the present case there is no scope for drawing this inference. On the facts found and on the evidence relied upon by the trial court in this case it has to be accepted, as already stated above, that the theft, if any, was committed between Behia and Arrah. Therefore, the Handbooks of the Watch and Ward Department of Stations other than Behia and Arrah could not be of any avail to prove as to how the theft was committed between Behia and Arrah. That being so, the Handbooks of Buxar and Mogalsarai on their face could not be of any assistance in deciding the point in issue. So far as the non-production of the Handbook of Behia station is concerned, that no doubt is a matter which cannot be ignored. That being so, the Handbooks of Buxar and Mogalsarai on their face could not be of any assistance in deciding the point in issue. So far as the non-production of the Handbook of Behia station is concerned, that no doubt is a matter which cannot be ignored. It was incumbent on the part of the railway administration to produce that specially when it had been called by the plaintiff with the order of the court and had there been no other reliable evidence on the record to prove as to what was the position of the seal and rivet of the wagon at that station, that failure on the part of the railway administration should have necessarily led to an adverse Inference against it. But here there is evidence, namely, that of D.W. 3 and the guard whose testimony has been accepted as trustworthy to prove and establish that the seal and rivet were not open at the Behia railway station. That being - so, I think the non-production of the Handoook even of Eenia on the facts of this case cannot lead to any adverse Inference against the railway. Therefore, there is no conclusive material on the record to establish that the theft of the aforesaid 41 tins of Dalda between Behia and Arrah was committed in collusion with some of the servants of the railway administration. In the course of the argument on this point Mr. Mustafi had drawn my attention to the case of Phulchand Khandelwal V/s. Governor General of India in Council, 29 Pat LT 76: (AIR 1949 pat 110) (A). That simply lays down the well established rule of law that the question of drawing inference of negligence from facts proved is a question of law. But here for the reasons given above it cannot be held that the inference drawn by the trial court is not justified on the facts found by it. Therefore, the second point also raised by Mr. Mustafi has to be dismissed as without much substance. 9. The last point raised by Mr. Mustafi, which, in my opinion, is the only substantial point in the case, is that the railway administration should have locked the wagon by E. P. Lock and not only by ordinary seal and rivet. Therefore, the second point also raised by Mr. Mustafi has to be dismissed as without much substance. 9. The last point raised by Mr. Mustafi, which, in my opinion, is the only substantial point in the case, is that the railway administration should have locked the wagon by E. P. Lock and not only by ordinary seal and rivet. According to him, under Circular No. Com/G/47/CL/EPL dated 30-10-50/7-11-50 it was incumbent on the part of the railway administration to use the E. P. Lock in place of ordinary seal & rivet. The circular shows that it was issued some time in 1950, & therefore, prima facie, it was in operation on 9th February, 1952, when the consignment in dispute was in transit. The reference of this circular has been made in paragraph 7 of the petition filed in this Court, and a copy of it has been attached along with the application. The last paragraph of that circular eays: "All concerned are requested to make the scheme an unqualified success and to note that no laxity will be tolerated". The correctness of the fact that this Circular Was Issued by the railway administration sometime In 1950, as it shows, has not been challenged by Mr. Epse, appearing for the railway administration. His contentions about this circular, however are two. In the first place, relying on the evidence of D.W. 1, as was done by the court below, he submitted that perhaps subsequently the rules under the circular had been amended. Unfortunately there is nothing on the record to give any support to such a contention nor my attention was drawn to any order or circular of the railway administration suggesting that the circular relied upon lay Mr. Mustafi was in any way subsequent to its enforcement amended or altered. So far as the evidence of D. W. 1 is concerned, that I think does not appear to be correct. His statement was that the use of E. P. lock was introduced for the first time in 1953. This statement is obviously contradicted by the date given in the circular and by its contents. Mr. Mustafi perhaps rightly in this connection suggested that D.W. 1 being the servant of the central Government and having been posted at Wadi Bandar was not much in the know of the rule and circular then in operation in the E. I. R. administration. Mr. Mustafi perhaps rightly in this connection suggested that D.W. 1 being the servant of the central Government and having been posted at Wadi Bandar was not much in the know of the rule and circular then in operation in the E. I. R. administration. It may be that the use of E. P. Lock was introduced in the G.I.P. Railway some time in 1953. That being so, the statement of that witness as to when the use of E. P. Lock was introduced in the E. I. R. administration cannot be held to be of any value. In these circumstances the explanation given by Mr. Bose on this point cannot be accepted. Secondly, he has argued that there is no evidence on the record to prove that any E. P. Lock was available ac Naini railway station where the wagon was transferred by the G.I.P. Railway to the E.I.R. Administration. This contention also is based on speculation. There is no material on the record to lead to such a conclusion. Therefore, the explanation for the non-user of E. P. Lock by the railway administration in wagon No. 3935 has to be dismissed as without substance. Therefore, it comes to this that inspite of the directions given by the railway administration to all concerned by the circular referred to above, the servant of the E.I.R. administration instead of using E. P. Lock in the wagon fastened it only by seal and rivet. This, therefore, raises the question as to whether this failure on the part of the railway servants amounts in law to negligence or misconduct as laid down in Section 74D of the Indian Railways Act already quoted above. It is true that the mere mode of fastening the door of a wagon cannot be an evidence of misconduct or negligence on the part of the servants of the railway administration. That mode may be due to the defect or deficiency in the administration of the railway itself and as such per se it cannot be attributed to Its servants. Here the case, however, is different. The circular shows that the railway administration as a result of its long experience came to the conclusion that rivets and seals or even padlock were not sufficient to secure the safety of the consignments while in transit by the railway from one place to another. Here the case, however, is different. The circular shows that the railway administration as a result of its long experience came to the conclusion that rivets and seals or even padlock were not sufficient to secure the safety of the consignments while in transit by the railway from one place to another. It, therefore, thought of a better and more dependable contrivance in the form of using E. P. Lock to check the thieves from committing thefts in the running trains by opening the doors of the wagons and thus removing its contents in whole or part. In pursuance of this decision, it appears, the railway administration issued the circular with an elaborate scheme given therein as to how it should be used and as to how the record for the using of the E. P. Lock should be maintained in each station. Lastly, it lays down that the order is to operate with immediate effect and that no laxity will be tolerated. In these circumstances the non-use of the E. P. Lock for fastening the doors of wagons in order to protect the consignments from theft in running trains cannot be attributed to any deficiency on the part of the railway administration. The non-use, therefore, if any, of the E. P. lock after the enforcement of the circular must be attributed if not to any misconduct on the part of the railway servants, at least to their negligence. 10. Mr. Mustafi in support of his argument that this constituted negligence on the part of the railway servants laid reliance on two cases namely, that of E. I. Rly Co. V/s. Narain Das Ganga Saran, AIR 1932 All 321 (B) and B. N. Rly V/s. Janki Das, AIR 1936 Pat 70 (C), Before I deal with them, I may mention here that the relevant expression used to risk note B, as it stood before its amendment in the year 1924, was "wilful neglect of the railway administration, or to theft by or to the wilful, neglect of its servants, transport agents or carriers employed by them". In 1924 the aforesaid expression in the original risk note B was changed to "Misconduct on the part of the railway administration or its servants." Subsequently in 1950 all the risk notes including risk note B were abolished and in place of risk note B statutory provisions were Introduced under Ss. In 1924 the aforesaid expression in the original risk note B was changed to "Misconduct on the part of the railway administration or its servants." Subsequently in 1950 all the risk notes including risk note B were abolished and in place of risk note B statutory provisions were Introduced under Ss. 74C and 74D of the Indian Railways Act. In these sections the corresponding relevant expression used is "negligence" or misconduct on the part of the Railway Administration or any of its servants". Therefore, now the quantum of evidence that is necessary to be present on the record to attract the liability of the railway for the loss is only that much as may be sufficient to lead to the inference of negligence and not necessarily of misconduct on the part of the railway administration or any of its servants. The two aforesaid cases relied upon by Mr. Mustafi refer to a period when the relevant expression used in risk note B was "misconduct on the part of the railway administration or its servants". " That being so, the controversy in those cases raised was as to whether on the evidence given by the railway misconduct could be inferred. Now in Ss. 74G and 74D of the Indian Railways Act, as already said above, along with the word "misconduct" the word "negligence" has also been used. So in the present state of law the onus on the plaintiff can. be said to be discharged even if he succeeds to establish that the loss was due to the negligence on the part of the railway administration or its servants. It may be, as held in a number of authorities, that negligence is something less than misconduct. But there is no doubt, as held in Bridges V/s. N. L. Rly, (1874) 7 HL 213 (D) that negligence consists in the doing of some act which a person of ordinary care and skill would not do under the circumstances and in the omitting to do some act which a person of ordinary care and skill would do under the circumstances. In other words, the test to be applied in determining whether there has been any negligence or not is the care taken by prudent man as laid down in Vaughan V/s. Man-love (1837) 6 LJ CP 92 (E) as also required by the statutory provisions enacted in Sec.151 of the Indian Contract Act. In other words, the test to be applied in determining whether there has been any negligence or not is the care taken by prudent man as laid down in Vaughan V/s. Man-love (1837) 6 LJ CP 92 (E) as also required by the statutory provisions enacted in Sec.151 of the Indian Contract Act. In this case, as I have already held above, the non-use of the E. P. lock in spite of the strong circular issued by the railway does in my view of the matter amount at least to negligence. 11. In the case of AIR 1932 All 321 (B) the consignment of dhoties booked from Howrah to Hatras did not reach its destination. The consignment was sent under risk note H which was substantially the same as risk note B. On enquiry it was found that the wagon in which the goods were placed was secured on one side by a lock described as Ellis patent Lock and was secured on the other side by an ordinary lock and that one of the rings to which the lock was attached was broken. In these circumstances question arose as to whether the loss was due to any misconduct on the part of the railway administration or its servants. Mukerji J. who, wrote the leading judgment and with whom Niamatullah, J. concurred in that case observed: "As I have stated, the question is whether from this fact we are prepared to draw the inference that there was misconduct on the part of some servant of the railway administration. Murray, in his dictionary, gives two meanings of the word misconduct. The primary meaning is "bad management", mismanagement and malfeasance or culpable neglect of an official in regard to his office. " The second meaning is adultery with which we are not concerned. Giving this usual meaning to the word misconduct there seems to be no escape from the conclusion that the bale was removed owing either to deliberate misconduct of the railway servants in the shape of standing by or helping in the theft or at any rate in so neglecting the wagon that it was possible for several men to arrive at the place to "wrench off the ring" and to remove a heavy load like the bale in question. The neglect, in the latter case, is surely culpable and the whole affair is mismanaged. The neglect, in the latter case, is surely culpable and the whole affair is mismanaged. I am therefore, prepared to hold that the lower appellate court was right in decreeing the claim against the appellants. In Secretary of State V/s. Allah Ditta, AIR 1930 Lah 120 (P) an opinion has been expressed that) misconduct involves some degree of moral obliquity. In the result however the learned Judges found that where a goods wagon had been unnecessarily detained for thirty hours, there was misconduct on the part of the servants of the railway and this is in keeping with the meaning to be found in Murrays English Dictionary. A few other cases have also been cited. Some oil these interpret the words "Wilful neglect." These cases are,, in my opinion, irrelevant because we are not concerned with that expression. In B. N. Rly. Co. Ltd. V/s. Hukumchand Hardat Rai, ALR 1930 Pat 559 (2) (G) the word "misconduct" was interpreted as being equal to wilful neglect, or failure of duty towards the consignor. I am prepared to accept the second meaning. Misconduct need not be wilful, if Murray be right in interpreting it as bad management, or mismanagement or culpable neglect of an official in regard to his office. The word "wilful" is not there and I would not use it in explaining the word misconduct. In Secretary of State V/s. Bhagwan Das, AIR 1927 All 371 (H) the word "Misconduct was considered and it was held that-- "a railway servant, who is placed as a kind of guardian over the goods of the public in transit, is guilty of misconduct if he allows a trespasser to obtain access to such goods". 12. In the case Of AIR 1936 Pat 70 (C) the consignments of damageable goods like ata, flour, and suji booked to be carried by the railway from, Ramkristopur Station to Jaychandipahar Station under risk note H loaded to C type wagons were damaged by rain water. 12. In the case Of AIR 1936 Pat 70 (C) the consignments of damageable goods like ata, flour, and suji booked to be carried by the railway from, Ramkristopur Station to Jaychandipahar Station under risk note H loaded to C type wagons were damaged by rain water. AS to C type wagons at that time there was a special standing order issued laying down that special care must be taken to see that the windows were securely fastened and that there was no likelihood of rain penetrating, and directing the Station masters and goods clerk to examine the condition of all wagons before loading and to satisfy themselves that the wagons were water-tight and serviceable, and to make an entry in the Station Diary to show that they had done so. The plaintiffs in that case called for those entries but none were produced. On those facts Dhavle, J. held: "The finding of fact of the lower court that damage was done by rain water entering into the wagons, which were either leaky or were not securely closed and made water-tight, is clearly right on the evidence." Then the learned Judge discussed the question as to whether on that finding the petitioner had been rightly held liable as upon proof that the damage arose from the misconduct of the railway servants. In the course of that discussion reference was made to an authority of this court in the case of Jamunadas Ramjas V/s. E. I. Rly Co. Ltd., AIR 1933 Pat 630 (I) decided by Jwala Prasad J. where the learned Judge laid down:- - "Misconduct would ordinarily mean failure to do what is required of a person to do. Certainly it was the duty of the railway administration to provide against such ordinary contingency, such as rain water forcing itself into the wagon and causing damage to grain etc., in it. The fact that the rain water did enter the wagon and, cause damage to the plaintiffs consignment is itself sufficient to show that proper and requisite precautions, were not taken by the Railway Administrar tion to provide against such contingency," After quoting the above passage Dhavle, J. observed: "Misconduct is not a term of art. The fact that the rain water did enter the wagon and, cause damage to the plaintiffs consignment is itself sufficient to show that proper and requisite precautions, were not taken by the Railway Administrar tion to provide against such contingency," After quoting the above passage Dhavle, J. observed: "Misconduct is not a term of art. In ordinary parlance it means bad management or mismanagement, being often used quasi-specifically (as may be seen from the Oxford English Dictionary) in the sense of malfeasance or culpable neglect of an official in regard to his office. The word is sometimes said to connote moral obliquity, but it seems to me that this is largely due to the fact that the word is also used in the sense of improper conduct or wrong behaviour especially adultery; the word conduct itself means not only manner of conducting business, etc. but also behaviour specially in its moral aspect, as good or bad conduct. In an English case which is often quoted, Lewis V/s. G. W. Rly Co., (1877) 3 QBD 195 (J), dealing With the question of the "wilful misconduct of Railway servants, Brett L.J. said that wilful misconduct must mean "The doing of something or the omitting to do something, which it is wrong to do or to omit, where the person who is guilty of the act or the omission knows that the act which he is doing, or that which he is omitting to do, is a wrong thing, t6 do or to omit ......he is doing a wrong thing and..... .that is misconduct and...... as he does it intentionally, he is guilty of wilful misconduct." There is, I think little reference to ethics when misconduct in railway risk notes is taken to mean the doing of a wrong thing; and it is clear that such misconduct may or may not be wilful. It was thus that in B. N. Rly Co. as he does it intentionally, he is guilty of wilful misconduct." There is, I think little reference to ethics when misconduct in railway risk notes is taken to mean the doing of a wrong thing; and it is clear that such misconduct may or may not be wilful. It was thus that in B. N. Rly Co. V/s. Moolji Sicka & Co., ILR 58 Cal 585; (AIR 1930 Cal 815) (K), Suhra-wardy, J. and Patterson, J. concurring after referring to the English cases, held that the word "misconduct" in these risk notes is wide enough to include wrongful commission or omission, intentionally or unintentionally any act which it wrongfully did or which it wrongfully neglected to do, or to put it in another way did what it should not have done and did not do what it should have done or any unbusinesslike conduct including negligence or want of proper care. The learned advocate has relied on this case as an authority for the proposition that misconduct cannot be inferred from defects found In the wagon at the arriving station, if it is shown that the wagon was in a good condition when it left the starting station. But the present is not a case of that kind at all. Suhrawardy, J.s construction of the term misconduct was apparently considered too wide in Secretary of State V/s. Deo-kalmal Mahadeblal, 35 Cal WN 1250: (AIR 1931 Cal 734 (2)) (L), where Mitter, J., with whom Patterson, J. agreed, said that it was necessary to consider whether an unintentional omission will amount to misconduct seeing that on the facts of the case under consideration there was clearly deliberate omission to padlock the wagon -- deliberate in the sense that it was not accidental but the usual practice. Breaches of definite rules leading to damage have been repeatedly held to amount to Misconduct; see B. N. Rly Co. Ltd. V/s. Moolji Sicka and Co., 49 Cal LJ 551: (AIR 1929 Cal 654) (M) and another case between the same parties reported, in B. N. Rly Co. Ltd. V/s. Moolji Sicka & Co. AIR 1932 Cal 70 (N). It is indeed difficult to imagine how misconduct could possibly be so construed as to exclude such breaches." In the end the learned Judge finally held that the evidence on the record was sufficient to prove misconduct. Ltd. V/s. Moolji Sicka & Co. AIR 1932 Cal 70 (N). It is indeed difficult to imagine how misconduct could possibly be so construed as to exclude such breaches." In the end the learned Judge finally held that the evidence on the record was sufficient to prove misconduct. Now, however, it appears that the legislature in using the word "negligence as alternative to the word misconduct in Sections 74C and 74D of the Indian Railways Act has for all practical purposes accepted the rule of law laid down in this court by Jwala Pd. J. in the case of Jammundas Ramjas V/s. E. I. Rly Co. Ltd., AIR 1933 Pat 630 (I) though here, as the case stands, it is not necessary for me to give any concluded opinion on this point for in any view of the matter the breach of duty cast upon the railway servants in not locking the wagon by E. P. lock in spite of the strong direction issued by the railway administration amounts at least to negligence. The trial court did not consider this aspect of the case as in its opinion the evidence of D.W. 1 was sufficient to establish that the circular relied upon by the petitioner was not in fact in force in the year 1952 when the present consignment was in the course of* transit. I have already discussed above that in this respect the trial court fell into an error and the finding arrived at by it on this point was based on evidence not worthy of reliance, and if that evidence is eliminated, as it has to be eliminated the rest of the material on the record clearly leads to the conclusion that the direction as to the use of the E. P. Lock was contemptuously ignored and disregarded. And this fragrant disregard of the circular in my opinion is sufficient to lead to the inference that there was negligence on the part of the railway servants which led to the loss of the aforesaid 41 tins of Dalda. That being so, the Judgment of the trial Court has to be set aside as one not given in accordance with law. 13. For the reasons stated above, the application is allowed with costs throughout and the rule is made absolute. Hearing fee Rs. 32/-.