Gamdoor Singh Vs. Punjab State Civil Supplies Corporation Limited and Others - Court Judgment

-1- RSA No.4086 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4086 of 2008 (O&M) Date of decision:

11. 02.2014 Gamdoor Singh ....Appellant Versus Punjab State Civil Supplies Corporation Limited and others ....Respondents CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH1 Whether Reporters of the local papers may be allowed to see the judgment ?. 2) To be referred to the Reporters or not ?. 3) Whether the judgment should be reported in the Digest ?. Present: - Mr. M.S. Sidhu, Advocate, for the appellant. Ms. Deepali Puri, Advocate, for respondents No.1 and 2. ***** PARAMJEET SINGH, J.

This regular second appeal by appellant/defendant No.2 is directed against the judgment and decree dated 23.08.2006 passed by learned Civil Judge (Senior Division), Ferozepur, whereby the suit for recovery filed by respondents No.1 and 2/plaintiffs was partly decreed as well as against the judgment and decree dated 27.09.2008 passed by learned District Judge, Ferozepur, whereby the appeal preferred by the appellant against the judgment and decree of the Court of first instance has been dismissed. For convenience sake, reference to parties is being made as per their status in the civil suit. The detailed facts of the case are already recapitulated in the Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.4086 of 2008 judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal, as pleaded by plaintiff, are to the effect that defendant No.1 Devinder Sharma and Gamdoor Singh defendant No.2/appellant were in joint charge of wheat stock for the crop year 1990-91 at Talwandi Bhai Punsup Centre. Both of them had made procurement of wheat stock for the abovesaid period on behalf of plaintiffs/Corporation and in this regard, they sent a joint charge certificate to the office which was received on 07.08.1990. During that period, Raj Mal Bhatia defendant No.3 was the Field Officer, who was also responsible for 20% of the loss caused to the Corporation, if there is lack of supervision on his part. Defendants No.1 and 2 had purchased 1,37,494 bags of wheat weighing 1,30,619.30 quintals for the crop year 1990-91 from April 1990 to July 1990 under the supervision of Abhey Kumar Chawla, Field Officer. Defendants No.1 and 2 delivered 1,01,326.76 quintals of wheat for the said period till 09.04.1991 and a loss of 1,53,464.74 quintals was caused by the defendants. It has further been pleaded by the plaintiffs that the opening stock on 10.04.1991 regarding the wheat of crop year 1990-91 was 29,973.26 quintals. Defendant No.2 was transferred from Talwandi Bhai Punsup Centre vide order dated 19.09.1991 and he was relieved on 13.11.1991 and during his tenure at Talwandi Bhai Punsup Centre, he had delivered the wheat for the crop year 1990-91 to FCI upto 13.11.1991. The defendants had delivered 14,858.08 quintals of wheat for the crop year 1990-91 and they had given excess of 125.20 quintals. Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.4086 of 2008 Devinder Sharma defendant No.1 was suspended vide order dated 15.12.1992 and he handed over the charge of wheat stock till February 1993 to Prem Kumar Inspector. Account Branch of the office of District Manager, Punsup, Ferozepur, after examining the record, calculated the shortage and other losses caused to the Corporation at Talwandi Bhai Punsup Centre vide reports dated 18.02.1993, 03.03.1993, 11.03.1993 and 28.05.1994. According to the report from 10.04.1991 to 13.11.1991, the defendants had delivered 14,858.08 quintals of wheat for the crop year 1990-91 to FCI and in the delivery during this period, there is shortage of 7.60 quintals of wheat, the value of which comes to Rs.3032.09 P. During the aforesaid period, the defendants were required to give minimum excess of 147.40 quintals, but they had given excess of 125.20 quintals and therefore, the less excess comes to the tune of 22.20 quintals of wheat, the value of which comes to Rs.8806.96 P. Further, as per the instructions of the Corporation, the defendants were to submit delivery documents to the District Manager, Punsup, Ferozepur within four days from the date of delivery but the defendants had not submitted those documents within the requisite period and as such the payment from the FCI was delayed and as such the Corporation has suffered loss on account of interest to the tune of Rs.9105.14. The wheat delivered to the FCI was also not in the required quality of gunny bags. On acount of that, gunny cut amounting to Rs.25618.46 P. was imposed, which was deducted by the FCI from the bills of the Corporation and as such Corporation is also entitled to recover that amount from the defendants. Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.4086 of 2008 Punsup had also suffered a loss of interest due to the late receipt of the payment to the extent of Rs.10351.22 and the Corporation is also entitled to recover this amount from the defendants. So, the total amount due against the defendants comes to the tune of Rs.56,913.87 P and further the defendants are liable to pay interest on that amount for the period from March 1993 to January 1996, which comes to Rs.29879.78 P. Defendant No.1 is responsible to the extent of 50% of the loss, defendant No.2 is responsible to the extent of 30% whereas defendant No.3 is responsible to the extent of 20% of the total loss. Defendant No.2 in his written statement took same preliminary objection as to maintainability, locus standi, non-joinder of necessary parties and cause of action etc. He also submitted that the suit is barred by the principle of res judicata. He being the PDC was not to procure the wheat stock. Rather the same was procured by defendant No.1. His duty was to distribute the essential commodities to common masses of rural area and he had nothing to do with the procurement of wheat or the health of the wheat stock. He had also nothing to do with the delivery of the stock to the FCI. Replication was filed by the plaintiffs denying the averments in the written statements and reiterating the averments in the plaint. Court of first instance, on the basis of pleadings of the parties, framed following issues: -

“1. Whether the plaintiffs are entitled to reover Rs.56,913.87 paise i.e. Rs.3032.09 paise on account of Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.4086 of 2008 the shortage of wheat, Rs.8806.96 paise on account of less excess of the wheat, Rs.9105.14 paise on account of the loss of interest due to late submission of delivery documents, Rs.25618.46 paise on account of gunny cut and Rs.10351.22 paise on account of the loss of the interest due to the late receipt of the payment from the defendants?. OPP2 Whether the plaintiffs are entitled to recover Rs.29879.78 paise by way of interest @ 18% per annum from the period 3/93 to 1/96?. OPP3 Whether the suit is within limitation?. OPP4 Whether the suit is bad for non-joinder of necessary parties as alleged?. OPD5 Whether the suit has been filed by a competent person?. OPP6 Whether the suit is barred by the principles of res judicata?. OPD2.

7. Relief.”

. Parties led their respective evidence. The Court of first instance, after appreciating evidence on record partly decreed the suit of the plaintiffs to the extent of recovery of Rs.48,106.91 whereby appellant/defendant No.2 was liable to pay 30%. Against the judgment and decree of the Court of first instance, appeal preferred by the appellant has been dismissed and the judgment and decree of the Court of first instance has been affirmed by lower appellate Court. Hence this regular second appeal. I have heard learned counsel for the parties and perused the record. Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -6- RSA No.4086 of 2008 Learned counsel for the appellant referred to substantial questions of law framed in para No.8 of the grounds of appeal, which read as under: -

“1. Whether the suit is barred by the principle of res judicata or not?.

2. Whether the action of the respondent by initiating the civil proceedings against the appellant are attended with the mala fide intention or not?.

3. Whether the respondents can recover the amount from the appellant in the light of the judgment passed by Hon'ble Supreme Court titled as Punjab State Civil Supplies Corporation Ltd. vs. Sikander Singh reported in 2007(1) Supreme Court Cases 1073?.”. Learned counsel for the appellant vehemently contended that for the alleged shortage in the stock disciplinary action had already been taken against the appellant and penalty had been imposed upon him to the extent of recovery of Rs.12307/- being 30% of total amount. As such civil suit is not maintainable. Appellant cannot be vexed twice for the same cause. It is further contended that learned Courts below have failed to take into consideration the testimony of PW6 who admitted that amount had already been recovered from the appellant. Learned counsel has relied upon the judgment of Hon'ble Supreme Court in Punjab State Civil Supplies Corpn. Ltd. v. Sikander Singh, (2006) 3 SCC736to contend that mere negligence in performance of a duty by an employee shall not give rise to cause of action for recovery of money. Only Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -7- RSA No.4086 of 2008 remedy is to initiate disciplinary proceedings which had already been done in his case. On the other hand, learned counsel for respondents No.1 and 2 has supported the impugned judgments and decrees. Learned counsel contended that a finding has been recorded by the Courts below that departmental proceedings and civil suit are separate and independent proceedings. It has also been recorded that appellant has not been able to give detail of departmental enquiry. The findings are based on appreciation of evidence. From the perusal of pleadings and record, this Court finds that following substantial questions of law arise for consideration: -

“1. Whether civil suit for recovery is maintainable when departmental action has already been taken against the delinquent?.

2. Whether judgments and decrees of Courts below are perverse being result of non-reading and mis-reading of material evidence?.' So far as question No.1 is concerned it has already been considered by Hon'ble Supreme Court in Sikander Singh (supra). Following observations of Hon'ble Supreme Court are relevant: -

“18. The Appellant is a ’State’ within the meaning of Article 12 of the Constitution of India. The terms and conditions of service by and between the Appellants and the Respondents herein are governed by the service rules and/or terms and conditions of contract. If the Respondents herein had Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -8- RSA No.4086 of 2008 committed misconduct they could have been and in fact were departmentally proceeded with. In the said departmental proceedings appropriate punishments had been imposed upon them. So far as defendant No.1 is concerned, therein his negligence had been held to have contributed to the loss of 2/3rd of the shortages and by way of penalty, he was asked by the appellate authority to deposit the requisite number of bags of wheat and/ or pay the price thereof. The said order having been complied with attained finality. It is binding on the appellant. The dispute cannot, therefore, be permitted to be reopened.

19. If the Appellant herein intended to proceed further against the defendant No.1, it could have done so by questioning the correctness or otherwise of the said order of the appellate authority before an appropriate forum. Deposit of the requisite number of bags of wheat and/or price thereof resulted in the defendant no.’s 1 reinstatement pursuant to an order passed by the High Court as also this Court. For his act of misconduct, he had also been denied backwages. If in the departmental proceedings, defendant No.1 had been asked to pay a penalty by way of recovery of loss to the extent of which he was found responsible, we are of the opinion that no civil suit could have been maintained for the self-same cause of action.

20. So far as the defendant No.2 is concerned, no finding of fact has been arrived at that he for any intent and purport appropriated any article to his advantage. In absence of such a finding, we fail to understand as to how under the common law, he could be proceeded against by way of a civil suit for recovery of money. A civil suit for recovery might have been maintainable only if he was found to have misappropriated the goods. Admittedly he has not. He was said to be negligent in Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -9- RSA No.4086 of 2008 performing his duties. x x x x x x x 34. Negligence in the performance of a duty under a contract of employment may give rise to a disciplinary proceeding but as at present advised, in a case of this nature, we are of the opinion that the same would not give rise to a cause of action for recovery of money for the goods lost as in the disciplinary proceeding itself, recovery of money from the delinquent can be directed by way of punishment.”

. It has been held in clear terms in Sikander Singh's case (supra) that in case of misconduct, appropriate action is to initiate departmental proceedings. In case departmental proceedings are initiated and it attains finality the matter cannot be reagitated in civil suit. In cases where there is no finding of mis-appropriation but mere negligence, civil suit is not maintainable. Thus the first question stands answered accordingly. As regards second question, learned Courts below have recorded finding to the effect that defendants were negligent in performing their duty. It has not been recorded that defendants intentionally mis-appropriated the stock for their own use. As such in view of Sinkander Singh (supra), civil suit is not maintainable. Even otherwise, it stands proved from the cross-examination of PW6 that appellant had already been penalized by way of departmental action and amount of loss to the extent of his share stood already recovered from him. In such eventuality, it was not open for the plaintiffs to reagitate the matter in civil suit. Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh -10- RSA No.4086 of 2008 In view of my findings on substantial questions of law raised above, the judgments of Courts below are perverse and not sustainable. In the result, the judgments and decrees passed by both the Courts below are set aside and the present appeal is allowed with costs throughout. Suit of the plaintiffs stands dismissed. Decree-sheet be prepared. (Paramjeet Singh) Judge February 11, 2014 R.S. Singh Ravinder 2014.03.10 13:12 I attest to the accuracy and integrity of this document Chandigarh