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
