Shakti Kumar vs Punjab State Civil Supplies … on 4 February, 2009

Punjab-Haryana High Court
Shakti Kumar vs Punjab State Civil Supplies … on 4 February, 2009
C.R. No. 620 of 2009                   1

      In the High Court for the States of Punjab and Haryana at Chandigarh
                                ...


                                       C.R. No. 620 of 2009

                                       Date of decision: February 4,2009

Shakti Kumar
                                                                 ..Petitioner

                                  Versus

Punjab State Civil Supplies Corporation and others
                                                                 ..Respondents

Coram:         Hon'ble Mr.Justice Rakesh Kumar Garg


Present:     Mr. S.K.Arora, Advocate
             for the Petitioner.

                       ...


Rakesh Kumar Garg,J.

The present revision petition has been filed by the defendant

challenging the order dated 16.1.2009 passed by the Civil Judge(Junior

Division), Zira vide which the application filed by the petitioner under Order 7

Rule 11(d) of CPC for rejection of plaint, has been dismissed.

The respondent-Corporation filed a suit for recovery on account of

less excess in wheat stock and loss of interest due to late submission of delivery

documents and on account of interest against the petitioners. It was alleged in

the plaint that the aforesaid loss was caused to the Corporation by the

defendants due to embezzlement and negligence of defendants.

The suit was contested by the defendant-petitioner by filing written

statement raising various preliminary objections including that if any alleged loss

is caused due to the negligence of the employee in performing the duty, it can be

recovered in disciplinary proceedings and it cannot give rise to cause of action

for suit for recovery of money of loss caused . It was further stated that the

plaintiff-Corporation has already issued charge sheet to the petitioner under Rule

8 of the Punjab Civil Services(Punishment and Appeal) rules, 1970.On merits,

the claim of the respondent-Corporation was denied by the petitioner and
C.R. No. 620 of 2009 2

dismissal of the suit was prayed for.

As per the averments in the petition, the petitioner filed an

application under Order 7 Rule 11(d) of CPC seeking rejection of the plaint on

the ground that recovery suit filed by the respondent-Corporation was not

maintainable in view of the judgment of the Hon’ble Supreme Court in the case

of Punjab State Civil Supplies Corporation Ltd. Versus Sikander Singh AIR 2006

Supreme Court 1438.

The trial Court vide impugned order dated 16.1.2009 held that the

aforesaid authority of the Hon’ble Supreme Court is not applicable to the facts of

the present case and rejected the application.

Challenging the aforesaid impugned order of the trial Court, learned

counsel for the petitioner has vehemently argued that it has been authoritatively

held by the Hon’ble Supreme Court of India in Punjab State Civil Supplies

Corporation’s case (supra) that in case loss has been caused by an employee

due to his negligence in performance of duties, the same can be recovered in

disciplinary proceedings by holding him guilty to the alleged misconduct and the

same cannot give rise to cause of action for filing suit for recovery of money for

loss caused. According to the counsel for the petitioner, the case in hand is fully

covered by the aforesaid judgment of the Hon’ble Supreme Court and the trial

Court has erred at law while not accepting the prayer of the petitioners.

I have heard learned counsel for the petitioner and perused the

judgment of the Hon’ble Supreme Court of India in Punjab State Civil Supplies

Corporation’s case (supra).

After pursuing the aforesaid judgment, I find that the facts in the

aforesaid judgment are distinguishable and are not applicable to the facts and

circumstances of this case. In the aforesaid judgment of the Hon’ble Supreme

Court of India, respondent Sikander Singh and Tilak RaJ were dismissed from

service on the ground that a physical verification of stock was carried out while

they were posted at Moga and the stock was found short. It was alleged that

defendant No.1 Tilak Raj was the actual holder of the stock and the defendant
C.R. No. 620 of 2009 3

No.2 Sikander Singh was negligent in making proper supervision of the

godowns. Departmental proceedings were initiated against both of them and

they were dismissed from service.

In the departmental proceedings against defendant No.1, the

appellate Authority directed his reinstatement subject to his depositing the

remaining 400 bags of wheat found short. He complied with the said direction of

the Appellate Authority. Despite that he was not reinstated. On a writ petition, the

High Court directed his reinstatement. SLP was filed and vide order dated

23.8.1989, the directions of the High Court with regard to the reinstatement were

upheld and relief of back wages was denied to him.

So far as order of dismissal passed in departmental inquiry against

respondent No.2 is concerned, Sikander Singh filed a suit which was the subject

matter of RSA No.2232 of 1998 before the High Court as his suit as well as first

appeal were dismissed by the courts below while allowing RSA No.2232 of 1998

filed by Sikander Singh, this Court held that Sikander Singh could not be

attributed to any dereliction of duty, his dismissal of service which was only on

this account cannot be sustained.

On the other hand, the Corporation filed civil suit against the

aforesaid defendant Nos. 1 and 2 for recovery of price of the quantity of wheat

which had been found short. The civil suit was dismissed against defendant

No.2, whereas the same was allowed against defendant No.1. Regular First

Appeal was filed in the High Court by the Corporation as RFA No.1780 of 1997.

Defendant No.1 also filed an appeal which was registered as RFA No.347 of

1997. By reason of the judgment, the High Court held that Tilak Raj had

deposited the shortage of wheat as per the orders of the appellate Authority and

no more liability can be fastened upon him on the basis of audit reports. With

regard to defendant No.2, it was opined that since no dereliction of supervisory

control was attributed to defendant No.2, therefore, he was not liable to make

good of any shortage and in view of this discussion, RFA No.1780 of 1997 filed

by PUNSUP failed and RFA No.347 of 1997 filed by Tilak Raj defendant No.1
C.R. No. 620 of 2009 4

was allowed and the suit of the PUNSUP was dismissed.

Thus on the basis of these findings recorded by this court on an

appeal filed by the Corporation, the Hon’ble Supreme Court of India held that

since the loss was caused by reason of misconduct on the part of defendant

No.1, it was directed to be recovered in the departmental proceedings and the

same stood recovered. Therefore, in view of the findings arrived at by the High

Court, the suit filed by the Corporation was not maintainable.

On the other hand, in the case in hand, there is no such finding

arrived at between the parties so far and in fact the suit is at a preliminary stage.

It is also useful to refer to the provisions of Order 7 Rule 11(d) which reads as

under:-

“Rejection of Plaint.,- Plaint shall be rejected in the following

cases:-

(a) to (c) xx xx xx xx

(d) Where the suit appears from the statement in the plaint to be

barred by any law ?

From the bare reading of the aforesaid provision, it is clear that the

plaint can be rejected only in such a case where from the perusal of the plaint

itself, it is found that the same is barred by law .

As noticed above, in the plaint, the respondent-Corporation has

clearly alleged that they are entitled to recover the amount in question from the

petitioners as they are responsible for causing the loss to the Corporation. The

petitioners have failed to point out any provision of law from which it can be

made out that the suit for recovery against the petitioners is barred by law. The

only ground raised by the petitioners is that in Sikandar Singh’s case (supra),

the Hon’ble Supreme Court of India has held that recovery of loss alleged to be

caused by an employee can be recovered in disciplinary proceedings and the

same will not give rise to cause of action for suit of recovery of money for the

loss caused. However, as discussed above, the judgment of the Hon’ble

Supreme Court of India was delivered in the facts and circumstances of that
C.R. No. 620 of 2009 5

case and on the basis of the findings arrived at between the parties to the effect

that the loss caused by the defendant No.1 in that case has been made good by

one defendant and the other defendant was not held liable for any dereliction of

duty and therefore in those circumstances, the Hon’ble Supreme Court or India

held that suit for recovery against them was not maintainable. No abstract

proposition of law to the effect that in a case where loss has been caused by an

employee due to his negligence in performance of duties, the same can be

recovered in disciplinary proceedings by holding him guilty to the alleged

misconduct and the same cannot give rise to cause of action for filing suit for

recovery of money for loss caused.

For the reasons recorded above, I find no merit in this revision

petition and the same is hereby dismissed.

February 4, 2009                             (RAKESH KUMAR GARG)
                   nk                               JUDGE
 

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