Punjab-Haryana High Court
Ram Singh vs Punjab State Civil Supplies ... on 6 December, 2012
Author: A.N. Jindal
Bench: A.N. Jindal
CR No. 6253 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(1) CR No. 6253 of 2011 (O&M)
Date of decision: December 6, 2012
Ram Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(2) CR No. 4548 of 2007 (O&M)
Kapoor Singh and others ...Petitioners
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(3) CR No. 5857 of 2007 (O&M)
Baldev Krishan and another ...Petitioners
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(4) CR No. 6104 of 2007 (O&M)
Makhtiar Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(5) CR No. 229 of 2008 (O&M)
Harnek Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(6) CR No. 2382 of 2008 (O&M)
Hari Kishan and others ..Petitioners
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
CR No. 6253 of 2011 2
(7) CR No. 2492 of 2008 (O&M)
Baldev Singh and others ...Petitioners
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(8) CR No. 3566 of 2008 (O&M)
Kashmir Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(9) CR No. 2981 of 2009 (O&M)
Vijay Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(10) CR No. 3771 of 2009 (O&M)
Karamjit Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(11) CR No. 3762 of 2009 (O&M)
Vijay Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(12) CR No. 4186 of 2009 (O&M)
Raj Kumar Chauhan and another ...Petitioners
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(13) CR No. 4773 of 2009 (O&M)
Vijay Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
CR No. 6253 of 2011 3
(14) CR No. 4187 of 2009 (O&M)
Misa Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(15) CR No. 3764 of 2009 (O&M)
Ram Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(16) CR No. 4184 of 2009 (O&M)
Avtar Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(17) CR No. 3767 of 2009 (O&M)
Madanjit Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(18) CR No. 5793 of 2009 (O&M)
Swaranjit Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(19) CR No. 5794 of 2009 (O&M)
Swaranjit Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(20) CR No. 5795 of 2009 (O&M)
Swaranjit Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
CR No. 6253 of 2011 4
(21) CR No. 5796 of 2009 (O&M)
Swaranjit Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(22) CR No. 3770 of 2009 (O&M)
Raj Kumar Chauhan ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(23) CR No. 4185 of 2009 (O&M)
Shakti Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(24) CR No. 7564 of 2010 (O&M)
Vijay Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(25) CR No. 4394 of 2009 (O&M)
Shakti Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(26) CR No. 4379 of 2009 (O&M)
Shakti Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(27) CR No. 7640 of 2010(O&M)
Gurdial @ Gurdial Kapur ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
CR No. 6253 of 2011 5
(28) CR No. 7558 of 2010 (O&M)
Joginder Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(29) CR No. 7559 of 2010 (O&M)
Joginder Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(30) CR No. 7560 of 2010 (O&M)
Gurpritam Singh and another s ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(31) CR No. 7561 of 2010 (O&M)
Nachhattar Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(32) CR No. 7562 of 2010 (O&M)
Partap Singh and another ...Petitioners
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(33) CR No. 7563 of 2010 (O&M)
Vijay Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(34) CR No. 7564 of 2010 (O&M)
Vijay Kumar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
CR No. 6253 of 2011 6
(35) CR No. 7665 of 2010 (O&M)
Karnail Chand ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(36) CR No. 7566 of 2010 (O&M)
Gurdial @ Gurdial Kapur ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(36) CR No. 7640 of 2010 (O&M)
Gurdial @ Gurdial Kapur ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(37) CR No. 6058 of 2011 (O&M)
KC Sandhi ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(38) CR No. 5234 of 2011 (O&M)
Rajinder Singh Brar ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd. and another
...Respondents
(39) CR No. 715 of 2012 (O&M)
Gurpritam Singh ...Petitioner
Versus
Punjab State Civil Supplies Corporation Ltd.
...Respondent
CORAM:- HON'BLE MR. JUSTICE A.N. JINDAL
Present: Mr. VK Shukla, Advocate,
Mr. Ranbir Singh Pathania, Advocate,
Mr. GS Bhatia, Advocate,
Mr. SS Duhan, Advocate,
for the petitioners.
CR No. 6253 of 2011 7
Ms. Deepali Puri, Advocate,
Mr. AK Chawla, Advocate,
Mr. DS Mann, Advocate,
Mrs. Ritam Aggarwal, Advocate,
Mr. BS Sra, Addl. A.G. Punjab,
for the respondents.
A.N. JINDAL, J. (Oral)
This judgment of mine shall dispose of above mentioned thirty nine revision petitions as the same involve common questions of law, which reads as under:-
1. Whether the suit filed by the respondents-Corporation for recovery of the amount on account of shortage of paddy, wheat stock, dead stock articles,, quality cut, loss of interest on account of late submission of documents with the F.C.I. and lack of supervision, was competent against the petitioners/employee?
2. Whether the departmental inquiry proceedings were the only remedy to recover the said amount?
The petitioners are working with the respondent--Punjab State Civil Supplies Corporation Ltd. (herein referred as 'the respondent') on the post of Public Distribution Clerks, Field Officers, Inspector Grade-I, Inspector Grade-II, Inspectors and Dy. Manager and they were in-charge of the stocks shown shortage, causing loss of cores of rupees the respondent. Thus, they claim relationship of employer and employee. Some of the petitioners are likely to retire.
Consequently, the respondent filed the suits against the petitioners/employees for recovery of different sums of money for CR No. 6253 of 2011 8 loss/shortages on account of shortage in paddy, wheat stock, bardana, stock articles, dead stock articles, quality cut, loss of interest on account of late submission of documents with the Food Corporation of India, excessive replacement of gunny bags and lack of negligence in performance of their duties.
The facts, as enumerated in Civil Revision No. 6253 of 2011, are that the respondent-Corporation filed a suit for recovery of Rs. 22,71,497/- account of shortage of paddy. During the pendency of the suit the petitioners moved an application for rejecting the plaint on the ground that since the loss/shortage as alleged is due to the negligence of the employees in performing their duties, therefore, this loss could be recovered in the disciplinary proceedings and a separate civil suit was not competent. Thus, they prayed for rejecting of the plaint.
In support of their contentions, the petitioners have placed reliance on the judgment delivered by the Apex Court in the case of Punjab State Civil Supplies Corporation Ltd. v. Sikander Singh, 2006 (2) SCT 26 : AIR 2006 Supreme Court 1438 in order to contend 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.
It may be noticed that where there is a right there is remedy spread over various laws. If shortages are caused by an employee to whom the property is entrusted, then certainly he would be treated responsible for loss/shortage caused by him due to embezzlement or otherwise and the petitioners could not escape the civil remedy i.e. by way of civil suit for recovery which has to be decided on the basis of the evidence to be led by CR No. 6253 of 2011 9 both the parties. Notwithstanding the fact that the department could proceed to penalize the employee for the recovery, it is not barred to institute such suit. As regards, the Apex Court judgment delivered in Sikander Singh's case (supra), the same was on different set of facts and is not applicable to the facts and circumstances of the present case.
In Sikander Singh's case (supra), 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 Tilak Raj was the actual holder of the stock and 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, the appellate authority had directed that Tilak Raj be reinstated subject to his depositing the remaining 400 bags of wheat found short and he had complied with the said direction. Despite that he was not reinstated. On a writ petition being filed, the High Court directed his reinstatement. The 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.
This Court, while interpreting and distinguishing the aforesaid judgment, clearly observed that on account of loss suffered by the Corporation at the hands of an employee, a civil suit for recovery could be filed and is not barred. In Shakti Kumar Versus Punjab State Civil Supplies Corporation and others 2009 (4) SLR 375, this Court observed as under:-
CR No. 6253 of 2011 10
"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 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 CR No. 6253 of 2011 11 filing suit for recovery of money for loss caused."
The said judgment was challenged in appeal before the Apex Court but the Apex Court has also not stayed the trial of the suit but only passing of final order has been stayed.
Similarly, this Court in Bhajan Singh Versus Punjab State Civil Supplies Corporation Ltd. and another (Civil Revision No. 4614 of 2012 decided on 17.8.2012), while highlighting the right of the Corporation to file a suit for recovery on account of loss caused to the Corporation on account of negligence and embezzlement and implications which may arise, if the matter is left to be decided in the inquiry proceedings, observed as under:-
"The department cannot wait till the departmental proceedings are finalized and recovery is ordered during those enquiry proceedings. Some times the departmental proceedings cannot be concluded till the date of the superannuation of the employee and the emoluments are not sufficient to compensate the loss. The employees, during the pendency of the departmental proceedings dispose of the property and as such the orders of attachment before judgment or stay alienating the property are required to be taken. It would also be pertinent to mention here that enquiry proceedings are summary in nature whereas the suits are decided after the trial. The enquiry officers could be levelled allegations of bias or prejudice whereas the court act impartially. The enquiry officers are not so competent to deal with matters so judiciously as the court, CR No. 6253 of 2011 12 therefore, such situations are difficult to be met with if the department remains waiting for effecting the recovery through the departmental proceedings. It would be difficult to hold enquiry for every subsequent defalcation after initiating enquiry proceedings."
As a matter of fact, the jurisdiction to get the right decided from the civil court unless it is barred by any stature would not be treated as barred by the civil court. A Full Bench of this Court in the case of M/s Ranbaxy Laboratories Ltd. Versus Punjab State Electricity Board, Patiala, 2004 (1) R.C.R. (Civil) 816, took note of the observations made in Ramendra Kishore Biswas v. State of Tripura and others, AIR 1999 SC 294, wherein the Supreme Court observed that service rules neither expressly nor by implication have taken away the jurisdiction of the civil court to deal with the service matters. The opinion of the learned Single Judge does violence both to the Code of Civil Procedure, the Specific Relief Act and the Service Rules. As a matter of fact, it appears to us that the learned Single Judge failed to exercise the jurisdiction vested to him while non-suiting the appellant. It, therefore, appears appropriate to us to allow this appeal set aside the order of the learned Single Judge and remit the matter to the High Court for a fresh decision of the Regular Second Appeal and the cross-objections on their own merits.
In M/s Ranbaxy Laboratories Ltd (supra), the Full Bench further clarified the law with the following observations:-
"In view of the precedents discussed above, the following principles can be enumerated to determine whether the CR No. 6253 of 2011 13 jurisdiction of the civil Court can be said to be impliedly barred:-
(1) Ubi jus ibi remedium i.e. where there is a right there is a remedy. The jurisdiction of the civil Court cannot be said to impliedly barred in respect of pre-existing common law right i.e. where the dispute has been characteristics of affecting one's right which is not only of civil but of civil nature as well. An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions set down apply. (2) Where a right or liability in respect whereof grievance has been made had been created under an enactment and it did not relate to pre-existing common law, the jurisdiction of the civil Court can be said to be barred if on inquiry the Court finds that adequate and efficacious alternative remedy is provided under the act creating right and the liability under that Special Act.
(3) When a statute gives finality to the orders passed by the Special Tribunal so constituted, the jurisdiction of the civil court can be said to be barred if there is identical remedy to do what the civil Court would do normally in a suit. However, such provision does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (4) Even in those cases where the jurisdiction of a civil court CR No. 6253 of 2011 14 can be said to be impliedly barred, the civil Court will nonetheless retain its jurisdiction and adjudicate the suit provided the order complained of is a nullity.
In view of the principles of bar of jurisdiction referred to above, we answer question No.1 referred for the decision of this Bench and hold that the jurisdiction of the civil Court cannot be said to be impliedly barred in terms of Section 9 of the Code on the basis of the scheme framed under section 79 of the Act. QUESTION NO.2
29. In Ashwani Kumar's case (supra), two Judges Bench of the Supreme Court has held that the circulars issued by the Board from time to time indicate a fundamental fairness of the procedure and, thus, by necessary implication civil court shall not be justified in entertaining the suits. In paragraph No. 10 of the judgment, Supreme Court held as under:-
"The question then arises: whether the Civil Court would be justified in entertaining the suit and issue injunction as prayed for? It is true, as contended by Shri Goyal, learned Senior Counsel,s that the objections were raised in the written statement as to the maintainability of the suit but the same (was) given up. Section 9 of CPC provides that Civil Court shall try all suits of civil nature, subject to pecuniary jurisdiction, unless their cognizance is expressly or by necessary implication barred. Such suit would not be maintainable. It is true that ordinarily, CR No. 6253 of 2011 15 the Civil Court has jurisdiction to go into and try the disputed questions of civil nature, where the fundamental fairness of procedure has been violated. The statutory circulars adumbrated above do indicate that a fundamental fairness of the procedure has been prescribed in the rules and is being followed. By necessary implications, the cognizance of the civil cause has been excluded. As a consequence, the Civil Court shall not be justified in entertaining this suit and giving the declaration without directing the party to avail of the remedy provided under the Indian Electricity Act and the Indian Electricity (Supply) Act and the instructions issued by the Board in that behalf from time to time as stated above."
And, therefore, in respect of the law laid down in the aforesaid judgments, it would have to be held that the civil court would have the jurisdiction to entertain and try the suit of civil nature against the petitioners/employees, unless expressly or implidely excluded by any statute. Unlike the Rules framed by the Punjab State Electricity Board providing a fairness procedure there no such rules framed by the Corporation which may bar the jurisdiction of the civil court by necessary implication.
As regards staying of the final order, having long experience of practice in the subordinate courts, if once the judgment is stayed, the court ceases to take interest obviously with the uncertainty of its culmination into CR No. 6253 of 2011 16 disposal and counting of the same against units.
Thus, on examination of the aforesaid entire factual situation and the law on point, this Court has no doubt in its mind that the plaintiff could not be debarred from filing a suit for recovery when it has cause of action against the petitioners for loss suffered by it and the judgment passed in Sikander Singh's case (supra) is not sufficient to invite the petitioners to move an application for rejecting the plaint.
Resultantly, the plaint could not be rejected merely on the ground that departmental proceedings are maintainable against the employee and not the suit for recovery.
Finding no merit in these petitions the same are dismissed.
December 6, 2012 (A.N. JINDAL) prem JUDGE