P L D 1954 Lahore 769 (PLP)

ORTCHESON, J.‑The facts of this case are that on 13th December 1947 Hasham Ali Shah plaintiff booked 95 bags of onions from Spezand railway station to Lahore under risk‑note B, framed under the Railway Act of 1890. The goods were placed in what is known as an E. L. van. The letters "E. L." are a code designation meaning a four‑wheeled freight bogey, and the special feature of such vans is that they allow the passage of air, thus rendering them particularly suitable for the conveyance of perishable goods such as fresh fruit and vegetables. In the normal course the onions should have reached their destination within about two days, but the van was found on arrival at Multan on 16th December to be defective. On 18th December it was removed to line No. 8, where it remained till 20th December. It was then transferred to the outside transit line and finally, on 21st December, to what is known as the sick line, i.e., the line on which vans awaiting repairs are placed. The repairs were such that they could be carried out in from three quarters of an hour, to an hour, and after they had been effected the E. L. van in dispute was sent on to Lahore, arriving on 23rd December. The consignee found on taking delivery that the consignment had deteriorated. A railway inspector certified the extent of the damage to be 50% and assessed it at Rs. 1,805 and some annas. The plaintiff then filed suit No. 36 of 1949 in the Court of the Civil Judge 1st Class, Lahore, for the recovery of Rs. 1,800 as damages, basing his claim on alleged gross negligence and misconduct on the part of the railway authorities in connection with the carriage of the goods. The suit was contested by the railway administration which denied any misconduct on the part of its officials. The trial Court decreed the suit with costs in the plaintiff's favour. Against the decree of the trial Court the Federation of Pakistan filed an appeal (No. 49 of 1950) in the Court of the Additional District Judge, Lahore, who by his judgment dated 25th October 1950 accepted the appeal with costs throughout, holding that although there had no doubt been negligence on the part of the railway in that it failed to give to the repairs of the van in dispute the priority to which the nature of the contents entitled it, that negligence did not amount to misconduct. Hasham Ali Shah then filed Regular Second Appeal No : 344 of 1950 in this Court. The learned Single judge, after reviewing many of the cases in which the question of what constitutes "misconduct" has been discussed, came to the conclusion that the failure of the railway authorities either to give priority to the repairs or to make arrangements for "trans‑shipping" the contents amounted to misconduct within the meaning of the risk‑note B. He accordingly accepted the appeal and decreed the plaintiff's suit for Rs. 1,800 with costs throughout. Against that decision the present Letters Patent Appeal was filed. The first ground urged by Mr. Mahmud, Assistant Advocate‑General, on behalf of the appellant is that the findings of the trial Court and of the lower appellate Court were findings of fact which could not be disturbed in second appeal. There are two answers to this objection. In the first place Mr. Mahmud himself challenged the finding of the lower appellate Court that there had been negligence on the par of the railway, and it is clear that in such circumstances the whole case is thrown open to examination in second appeal. Secondly, as held by the Patna High Court in Phul Chand Khandelmal v. Governor‑General in Council (29 Pat, Law Times 76,) in second appeal the High Court is entitled to examine the soundness of conclusions drawn from the evidence adduced and the question of whether such conclusions are correct is either a question of law or a mixed question of law and fact. I, therefore, hold that the findings of the Courts below were open to challenge in second appeal. The fundamental question for decision in this appeal is what constitutes "misconduct" within the meaning of risk‑note B. The form in question is used when the sender elects to despatch at a "special reduced" or "owner's risk" rate articles or animals for which an alternative "ordinary" or "risk acceptance" rate is quoted in the tariff, and the relevant portion runs :‑ "Whereas the consignment of ....tendered by me/us as per Forwarding Order No ...of .(date), for despatch by the ....Railway Administration to ..station, under Railway Receipt No ..of .(date), is charged at a special reduced rate instead of at the ordinary tariff rate chargeable for such consignment, I/ we, the undersigned, do, in consideration of such lower charge, agree and undertake to hold the said Railway Administration harmless and free from all responsibility for any loss, destruction or deterioration of, or damage to, the said consignment from any cause whatever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the Railway Administration or its servants." There then follows a proviso placing upon the Railway Administration in certain circumstances with which this appeal is not concerned, the duty of disclosing to the consignor how the consignment was dealt with throughout the time it was in its possession or control and, if necessary, to give evidence thereof before the consignor is called upon to prove misconduct. There is a wide divergence of judicial authority on the question of what constitutes "misconduct". One view places great stress on the fact that whereas in the corresponding English note the expression used is "wilful misconduct", in the Indian (now Pakistan) note the reference to willfulness is omitted, the single word "misconduct" being substituted, and concludes that liability under the Indian note is wider than under the English note. As an example of this view the observations of Mr. Justice Suhrawardy in The Bengal Nagpur Railway Co v. Moolji Sikka & Co. (A I R 1930 Cal. 815.) may with advantage be cited "In this case we are concerned with the substitution of the words 'misconduct of the railway administration's servants' for the words 'wilful neglect of the railway administration or to theft by or to the wilful neglect of its servants, transport agents of carriers employed by them' in the old form. The English form of the risk‑note contains the words 'wilful misconduct'. The present risk‑note, therefore, is wider and more comprehensive in enlarging the liability of the railway than the old form or the English note. Under that note, as well as under the English note, misconduct should be intentional and it, therefore, excluded unintentional neglect or act I am inclined to hold that the word 'misconduct' as used in the new risk‑note B is wide enough to include wrongful commission and omission, intentional or unintentional‑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 ....I am not inclined to accept the view that misconduct only refers to acts of gross or culpable negligence and the terms do not ordinarily cover acts of mere negligence. In my judgment, the word `misconduct' denotes any un-business like conduct and includes negligence or want of proper care which a bailee is to take under section 151, Indian Contract Act. The immunity, which the risk‑note brings to the railway company, is by shifting the burden of proof." The contrary view, according to which there is no practical difference between the expressions "misconduct" and "wilful misconduct", has been expressed by Hilton, J. of this Court in Secretary of State v. Allah Ditta (A I R 1930 Lah. 120,) in the following terms :‑‑ "Now the word 'misconduct' in common speech has two divergent meanings. When it is said that some person has mis-conducted his affairs, what is ordinarily meant is that he has mismanaged them and nothing more than this is usually implied, no moral judgment being necessarily passed upon the individual concerned. When, on the other hand, it is said that some person has misconducted himself, the word 'misconduct' is used in a sense akin to that of 'misbehaviour', which carries an imputation of at least some degree of moral obliquity. No idea of mismanagement seems to enter into this use of the word. The problem for decision is, with which of these dual meanings is the word misconduct clothed when employed in the risk‑note Form H. In my judgment, the phrase 'misconduct' of the railway administra tion's servants can only have the second meaning which involves the passing of a moral judgment on the conduct of the person concerned, however slight may be the lapse from rectitude which provokes it. I do not, therefore, accept the view of the Courts below that misconduct and mismanagement are synonymous terms for the purpose of the risk‑note." In the present case it is clear that Kayani, J. has adopted the first quoted view in preference to the second, as appears from his remark at page 10 of his judgment "I am of the opinion that where there is bad management or mismanage ment or negligence of a kind which, although not necessarily reckless, suggests that something was done or omitted to be done which a man of ordinary prudence would not have done or would not have omitted to do, there is a case of misconduct." Which of these two irreconcilable views is correct? In coming to a decision on this question, regard must be had to the statutory setting of risk‑note B. If I may say so with respect, this aspect of the matter does not appear to have received its due measure of attention from the learned judges who have given to the term "misconduct" a connota tion sufficiently wide to include mere negligence. The risk‑note in dispute was framed under section 72 (2) (b) of the Railways Act, and in order to appreciate the true position, it is necessary to consider section 72 as a whole. It runs as follows :‑ "72. (1) The responsibility of a railway administration for the loss, destruction or detrioration of animals or goods delivered to the administration to be carried by railway shall, subject to the other provisions of this Act, be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, 1872, (IX of 1872). (2) An agreement purporting to limit that responsibility shall, in so far as it purports to effect such limitation, be void, unless it‑ (a) is in writing signed by or on behalf of the person sending or delivering to the railway administration the animals or goods, and (b) is otherwise in a form approved by the Central Government. (3) Nothing in the common law of England or in the Carriers Act, 1875, regarding the responsibility of common carriers with respect to the carriage animals or goods, shall affect the responsibility as in this section defined of a railway administration." Subsections (1) and (3) of the above section make it clear that what may be termed the standard liability of the Pakistan and Indian Railways is that of a bailee only, and that unlike the English Railways, their position is not that of an insurer. Section 151 of the Contract Act lays down that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. By virtue of section 152 of the same Act the bailee, in the absence of any special contract is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in section

151. Finally, section 161 of the Contract Act prescribes that if, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. In other words, the railway is by statute liable in the absence of a special contract for negligence, even if such negligence be not wilful. Subsection (2) of section 72 empowers a railway, subject to the restrictions contained in clauses (a) and (b), to enter into a special contract limiting its responsibility. The execution of risk‑note B creates such a contract, the essence of which is, as already stated, that in consideration of a reduced rate of freight, the consignor agrees to hold the railway administration free from all responsibility for any loss, destruction or deterioration of, or damage to, his consignment from any cause whatever except upon proof that such loss, destruction, deterioration or damage arose from the misconduct on the part of the railway administration or its servants. It is clear that since the railway has given the concession of a reduced rate to the consignor, its standard or statutory liability under subsection (1) of section 72 must be curtailed, since otherwise there would be no real considera tion for the reduction. But by virtue of subsection (1), the railway is already liable, as a bailee, for mere negligence. If therefore, the term "misconduct" be held to include ordinary negligence, the risk‑note becomes meaningless. If, on the other hand, misconduct is held to mean something more than negligence, the responsibility of the railway has really been limited by the execution of the risk‑note. From this point of view it is abundantly evident that misconductic cannot embrace ordinary negligence. If the view propounded by some authorities that misconduct is to be distinguished from wilful misconduct so as to include in the term misconduct even unintentional conduct, the position of the railway under the risk‑note would be even worse. To take a general example a trader, unaware of the existence of a Government notification controlling the price of a certain article, sells the article in question for a price above that fixed by the notification. In such a case the conduct of the trader in selling the article at a higher price is certainly wilful in the sense that he did so deliberately, but his misconduct is unintentional. He has further not been guilty of any negligence. Applying this principle to a railway, the railway might be held guilty of misconduct even though no negligence has taken place. In such a case the liability of the Railway would be greater than that of a bailee, which would be contrary to the clear terms of the statute. I therefore find myself entirely unable to agree either that misconduct can be equated with mere negligence or that as held by Suhrawardy, J., misconduct is something distinct from wilful misconduct. The word "wilful" is defined in the Concise Oxford Dictionary as "for which compulsion or ignorance or accident cannot be pleaded as excuse: intentional; deliberate", while misconduct is defined primarily as "improper conduct". Unless his will is a party to his action, a man cannot be held guilty of misconduct. Even in the English case Levis v. Great Western Railway Co. (3 Q B D 195.) in which a distinction appears to be drawn between misconduct and wilful misconduct, it is apparent on a perusal of the judgments that the learned judges were concerned not with any distinc tion between misconduct and wilful misconduct but with the distinction between wilful misconduct and negligence. Cotton, L. J., for example, remarks at page 213: "Now I do not think there can be any doubt at all that wilful misconduct is something entirely different from negligence, and far beyond it, whether the negligence be culpable, or gross, or however denominated. There must be the doing of something which the person doing it knows will cause risk or injury, or the doing of an unusual thing with reference to the matter in hand, either in spite of warning or without care, regardless whether it will or will not cause injury to the goods carried or other subject‑matter of the transaction." This ruling cannot therefore be used as a basis for drawing a distinction between misconduct and wilful misconduct. The position has been well expressed by Wort J. in Naurang Lal v. B. B. & C. I. Railway (A I R 1936 Pat. 84.) as follows :‑ "I see no difference between wilful misconduct and misconduct. The word 'wilful' seems tome to be redundant. 'Wilful' expresses the actor the will of the' person who is guilty of misconduct, but misconduct must always have that condition attached to it, otherwise the word has no meaning. As has been pointed out in a number of authorities, negligence is different from misconduct." In the case B. N. Railway Co., v. Moolji Sicka & Co. (A I R 1930 Cal. 815.) already cited, Suhrawardy J. appears to consider that the substitution of the word "misconduct" for the term "wilful neglect" in risk form B, together with the distinction he imagined to exist between "misconduct" and "wilful misconduct" has had the effect of enlarging the liability of the railway, but with respect I cannot agree. The term "misconduct" used in the new note is no doubt wider than "wilful neglect", in the 'sense that it, includes, in addition to wilful neglect, other forms of improper' conduct, but those forms carry a degree of moral obloquy". (to quote Hilton J's phrase) which is at least as great as, if not greater than, that attaching to, wilful neglect. In Durga Dutta Shri Ram Firm v. Secretary of State for India (A I R 1936 Pat. 283.) Wort J. expressed the matter thus :‑ "In the course of the case Bindraban v. G. I. P. Railway Company Walsh J.,'in delivering one of the judgments of the Full Bench, treats the expression 'wilful neglect' as synonymous with 'misconduct'. The expression, as I have already stated, is the expression used in the risk‑note B, with which we are dealing, and, in any event, it seems to me that if the plaintiff fails on the evidence to prove wilful neglect; it must necessarily, follow that‑he will equally fail in proving misconduct, which at any rate cannot be said to be something less than wilful neglect". It is to be noted that in .the passage quoted, Wort J. does not expressly state that he agrees with Walsh J. in holding wilful neglect to be synonymous with misconduct. In this connection the dictum of James J. in Bengal Nagpur Railway Co. v. Hukam Chand (A I R 1930 Pat. 559.) may be cited with advantage. "I do not consider that there is any necessity for discriminating between the meaning of the term 'misconduct' in the new form and the term 'wilful neglect' in the old. The old form protected the consignor against wilful neglect on the part of the railway administration and against theft or wilful neglect on the part of the railway servants .The form was not artistically drafted because its language left openings for argument as to whether the consignor was protected in circumstances in which a railway servant might have committed an offence under section 403 or section 407 I. P: C. .All such‑ambiguity is avoided by the use 'of the term 'misconduct'. After all wilful neglect is misconduct, and I think that the reasonable view is to hold that the term 'misconduct' means 'wilful neglect' including a fortiori anything more culpable, and rendering it unneces sary to complicate the form unduly thrown by mentioning theft, or criminal misappropriation or criminal breach of trust" Light is also thrown on the meaning .of misconduct in the following cases :‑ Firm Sheikh Wajid Ali ‑Muhammad Rafiq v. Bengal & North Western Railway Co. (A I R 1941 All. 164.) in which Collister J. defined misconduct as meaning improper conduct. M. & S. M. Railway Co. Ltd v. Sunderjee Kalidas (A I R 1933 Cal. 742.) In this case Guha J. held that misconduct means the intentional doing of something which the doer knows to be wrong and opposed to accident or negligence. B. B. & C. 1: Railway v. Rajnagar Spinning Etc. Co. Ltd (A I R 1930 Bom. 129.). It was held by Kemp, Acting C. J., that the meaning of the word misconduct is not what a reasonable man would have done under the circumstances but that the word suggests that a railway servant had been guilty of doing something which was inconsistent with the conduct required of him by the rules of the company. Dida Ram Wisanda Ram v. Secretary of State (A I R 1934 Pesh. 119.). In this ruling the learned Judicial Commissioners held, agreeing with Hilton J. of this Court, that misconduct is not mismanagement but behaviour which involves an imputation of some degree of moral obloquy. Hilton J's definition was adopted subject to the proviso that the misconduct must be of the company's servants and must not refer to any deficiencies in the rules‑made by the railway administration, by which those servants are td .govern themselves. In the light of the above definition of misconduct it must now be seen whether in the. present case the railway company has been guilty of misconduct. That there has been some 'degree of negligence on the part of the railway administration's servants it would be difficult to deny. Although E. L. vans are entitled, by the nature of the contents, to preferential treatment, no such treatment was given, nor was any attempt made to trans‑ship the contents of the van, arid as the consignment in dispute did not constitute an entice wagon load, there was no question, of keeping the van intact. On the other hand, taking into account the chaotic conditions then prevailing, it cannot be held that there was any deliberate or intentional act of negligence, i. e., an act of such a nature as to amount to wilful neglect as apposed t0 ordinary negligence, and, as already held, where wilful neglect is not proved, there can be no, proof of misconduct. I accordingly hold, agreeing with the lower appellate Court and disagreeing with the learned Single judge, that railway administration 'is not proved to have been guilty of misconduct. The decree of the learned Additional District judge is therefore restored but in view of .the difficult nature of the question involved, the parties are left to bear their own costs throughout. , RAHMAN, J.‑The facts of this case have been sufficiently set out in the judgment of my learned brother, Ortcheson, and need not be reiterated. I agree with my learned brother that the question whether "misconduct" should be held proved on the facts found, is one that is open for examination in second appeal. Indeed, as has been pointed out, Mr. Mahmud on behalf of the appellant himself challenged the finding of the Court of First Appeal; on the point of negligence and under the circumstances, this Court would be entitled to scrutinise the whole evidence on record, even if it pertains to questions of fact: The principal question that falls for determination, how ever, is that of the construction to be placed on the term "misconduct" occuring in Risk Note Form B, on which .the goods were admittedly booked in the present case. The question is 'a vexed one, on which decisions have differed. At one extreme is the view taken by Suhrawardi J. in the, Bengal Nagpur Ry: Co., v. Moolji Sicka % Co. (supra). The learned judge was of opinion that the relevant risk‑note form now in use imports a wider and more comprehensive liability of the Railway administra tion than the older form of the note which confined it to "willful neglect of the Railway administration or to theft by or to the wilful neglect of its servants, transport agents of carriers employed by them" or than the correspond ing English note which uses the expression "wilful misconduct" He was inclined to hold that "misconduct" simpliciter included on the part of the Railway Company "wrongful commission and omission, intentional or unintentional‑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." He disagreed with the view that "misconduct" only refers to acts of gross or culpable negligence and that the term did not ordinarily cover acts of mere negligence. He finally observed that in his judgment the word 'misconduct' denoted any un-businesslike conduct and included negligence or want of proper care which a bailee is to take under section 151 of the Contract Act. The immunity conferred by the. risk note on the Railway Company lay, according to the learned Judge, in the shifting of the burden of proof on to the consignor. At the other end, is the dictum of Wort J. in Naurang Lal v. B. B. & C.

1. Railway (A I R 1936 Patna, 84), to the effect that there is no difference between 'wilful conduct' and 'misconduct' and that negligence is to be distinguished from misconduct. Hilton J. in Secretary of State v. Allah Ditta (A I R 1930 Lah. 120.), thought that the word 'misconduct' in .the context of the' risk note in question should .not be equated with "mismanagement" which was one of its dictionary meanings but that it should be construed in a sense akin' to that of 'misbehaviour' which carries an imputation of at least some degree of moral obliquity. In Secretary of State v. Khan Chand (I L R 16 Lah. 280), Din Muhammad J. summarised the varying views taken in different authorities, as to the meaning of the term "misconduct" without indicating his personal preference for ‑any one of them, probably because that particular case was bound to fail whichever test was applied. It was held therein that the Railway administration were not guilty of "any un-busi nesslike conduct, negligence, moral obliquity, culpable negli gence, recklessness, want of proper care of caution, incon sistency with the conduct required of them by the rules of the Company, failure to do what was required of them to be done or shirking any duties, on account of disinclination to perform them." The learned Single judge whose judgment is under appeal, has expressed the opinion that when there is bad management or mismanagement or negligence of a kind which, although not necessarily reckless, suggests that something was done or omitted to be done which a man of ordinary prudence would not have done or would not have omitted to do, there is a case of misconduct. He was therefore apparently disposed to adopt the wide interpretation placed on the term by Suhrawardy J. in B. N. Railway Co. v. Moolji Sicka & Co. (supra) With all respect, it seems to me that the construction of the word favored by Suhrawardy J. is couched in too broad terms to be acceptable. As has been pointed out by my learned brother, this view omits to take into consideration the pro visions of section 72 of the Railway's Act which permits a Railway administration to restrict its ordinary liability as a bailee under sections 151, 152 and 161 of the Contract Act, by a special agreement under prescribed conditions. The risk note B is such an agreement as it fulfils the, twin statutory conditions of being in writing signed by or on behalf of the consignor and of conforming to a form approved by the Central Government. It would be logical to assume therefore that in the face of such a special agreement, the Railway administration is exempted from a bailee's liability and so mere negligence would not be enough to establish misconduct. On the other hand, (I speak with due defence) I am unable to subscribe to the view which attaches no signifi cance to the omission of the adjective "wilful" from our form of Risk Note B as compared with the corresponding English form. That the addition of the adjective makes a difference to the connotation of the expression, appears to be envisaged clearly in Lewis v. The Great' Western Railway Co. (3 Q B D 195). In the judgment of Bramwell L.J. in that case I find the follow ing observations :‑ "Wilful misconduct" means misconduct to which the' will is a party; something opposed to accident or negligence; the misconduct, not the conduct, must be wilful." Brett L. J. in the same case, expressed himself in no uncertain terms. The following quotation from 'his judgment illuminating :‑ "Care must be taken to ascertain that it is not only misconduct but wilful misconduct and I think that those two terms together import a knowledge of wrong on the part of the person who is supposed to be guilty of the act or omission." The opinion of Cotton L. J., the third judge who was a party to that decision does not appear to be at variance with the above extracts. In the end of his judgment the learned Judge delivered himself as follows :‑ "Persons in Shorpshire and Sheshire would, of course, look upon the matter in a different light, and therefore to my mind the evidence of the witnesses from those countries, who said they would not have packed cheese in this way, does not really show that the servants of the Company at. Paddington and they are the servants with whose conduct we have to deal‑were guilty of misconduct, certainly not of wilful misconduct when they packed the cheeses, in the manner which is said to have led to the mischief." The cheeses booked in that case had been damaged in transit by the defective method of packing adopted by the Peddington Station Railway servants but it was proved that they had no knowledge that damage‑would result thereby. Sortie guidance may re obtained from the observations of Brett L.J. as to the meaning of "misconduct'.' simpliciter at pp. 210 and 211 of the above cited case; which read as follows :‑ "In a contract where the term wilful misconduct is put as something different from and excluding negligence of every kind, it seems to me that it must mean the doing of something or the omitting to do something, which it is wrong to do or to omit, when 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 to do or to omit; and it involves the knowledge of the person that the thing which he is doing is wrong; I think that if he .knows that what is doing will seriously damage the goods of a consignor, then he knows that :what he is doing is ‑a wrong thing to do; and also as my Lord has put it, it is brought to his notice that what he is doing, or omitting to do, may seriously endanger the things which are to be sent, and he willfully persists in doing that against which he is warned, careless whether he may be doing damage or not, then I think he is doing a wrong thing and that that is misconduct and that as he does it intentionally, he is guilty of wilful misconduct; or if he does or omits to do something which every , body must know is likely to endanger or damage the goods, then it follows that he is doing .that which he knows to be wrong thing to do. Then there follows the sentence already quoted above. It would seem therefore that "wilful misconduct" accord ing to this English authority means willfully or intentionally doing or omitting to do a thing with the knowledge or consciousness that damage would be caused thereby. I apprehend that the element of willfulness or intention need not be there when we are considering the case of pure mis conduct without the qualifying adjective, though a conscious ness of probable damage may exist coupled with indifference towards that probability being actualised. To take a hypothe tical illustration, if a newly appointed Railway servant does not care to acquaint himself with the relevant rules as to how a particular consignment is to be dealt with and thus neglects his duty and causes damage to the goods of the consignor, intentional misconduct may not be attributable to him in the sense of deliberately disregarding known instructions but he may nevertheless be held guilty of misconduct for his failure to observe the precautions enjoined by the Railway adminis tration and for acting recklessly without caring to inform himself of the relevant orders. "Misconduct" may be in tentional conduct inasmuch as the act or omission may have the feature of voluntariness included in it but it should still be distinguishable from intentional or wilful misconduct. To my mind, "misconduct" includes any highly improper or wrong conduct involving something more than mere negli gence and "culpable neglect of an official in regard to his office" in the words of the Oxford Dictionary, would be one form of it. Misconduct, on the one side, has to be something more than negligence simpliciter and on the other less than "wilful misconduct", at least while fixing the lower boundary of the scope of its connotation. This may be a matter of some nicety in the circumstances of a particular case but, the line has to be drawn somewhere consistently with the' provisions of the statute and the language of the risk‑note. The expression used in Risk Note B may be regarded as a term of art in as much it is meant to be a compendious term covering inter alia the commission of an offence like mischief, criminal misappropriation, criminal breach of trust or theft by a Railway servant. These grosser forms of misconduct (if might so described them) which may be taken as correspond ing to the "wilful misconduct" of English law, would a fortiori be included within the term "misconduct" and consequently the necessity for equating "misconduct" with "wilful misconduct" vanishes. On the facts of this case however, I agree with my learned brother that the appeal should succeed. All that is proved is that the Railway servants at Multan were guilty of negligence in not giving priority to the wagon in question for the necessary repairs and no traits‑shipment of goods was arranged for: No specific rule has been quoted to show that such priority had been enjoined by the Railway administration if as in the present case, though the goods were carried in an E.L. van; no labels had been affixed to the wagon indicating that the goods were perishable. The commodity booked was not fresh fruit but onions which are known to keep for a considerable time. No evidence was led to show that a ten days detention of the wagon would have been normally fatal to the onions if their initial condition at the station of despatch was satisfactory. The detention was not unreasonable con sidering the congestion in the yard caused by abnormal con ditions then prevailing. In these circumstances, the Railway administration's negligence or that of its servants, falls short of misconduct and in the face of the language of the risk note, the Railway administration is not liable to reimburse the respondent for the damage caused. I therefore concur in the order allowing this 'appeal. I also agree that parties may be left to bear their own costs throughout, owing to the difficult nature of the question involved in this case. , A. H. Appeal allowed