Karnataka High Court
The State Of Karnataka vs Sri M.B. Katagalkar on 10 January, 2019
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
1 RFA No.100260/2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2019
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
REGULAR FIRST APPEAL No.100260 OF 2018
BETWEEN:
THE STATE OF KARNATAKA
REPRESENTED BY THE EXECUTIVE ENGINEER,
NATIONAL HIGHWAY DIVISION,
HUBLI.
... APPELLANT
(BY SMT. VEENA HEGDE, AGA)
AND
SRI M.B. KATAGALKAR
AGE:MAJOR,
OCC:STORE KEEPER,
(NOW DISMISSED FROM SERVICE)
R/O. PLOT NO.37, 2ND STAGE,
VASANT NILAYA, HANUMA NAGAR,
BELGAUM.
... RESPONDENT
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC 1908,
AGAINST THE JUDGMENT AND DECREE DTD: 24.04.2017
PASSED IN O.S.NO.305/2012 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE,
BELAGAVI, DISMISSING THE SUIT FILED FOR RECOVERY OF
MONEY, AND ETC.
2 RFA No.100260/2018
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
NAGARATHNA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been filed by the State / plaintiff in O.S. No.305/2012, being aggrieved by the dismissal of the said suit by judgment and decree dated 24.04.2017 passed by the Court of Principal Senior Civil Judge and CJM, Belagavi.
2. For the sake of convenience, parties shall be referred to in terms of their status before the trial court.
3. The suit was filed by the State represented by the Executive Engineer, National Highway Division, Hubballi, averring that the defendant was serving as a Store Keeper in National Highway Division, Belagavi, during the period from 01.01.1991 to 22.06.1995 and that he has since been dismissed from service. That in the year 1991, the Public Works Department was 3 RFA No.100260/2018 also in-charge of construction and maintenance of national highways and its National Highway Division was supervising and controlling the said works. National Highway Division, Belagavi, was in-charge of the construction and maintenance of national highways falling under the said sub- division.
4. That between the years 1991 and 1995, construction and maintenance of national highways under Belagavi sub-division was taken up on large scale and for that purpose, purchase of materials worth `5,23,68,825/- had to be made and a sum of `4,25,39,533/- was sanctioned and released by the State Government in favour of the Executive Engineer, Belagavi Division, which was in-charge of the said works and the defendant was the store keeper in the said office i.e., Division Office, Belagavi, which has since been shifted to Hubballi. That in respect of `5,23,68,825/- which was 4 RFA No.100260/2018 claimed to have been spent by the Office of the Executive Engineer, Belagavi sub-division and released by the Government, audit objections were raised in respect of the discrepancies regarding spending of the amount by the Office of the Accountant General. Therefore, a Committee was constituted by the State Government appointing Sri.K.R.Kodaganur, retired District Judge, Belagavi and other officers. The said Committee on a detailed enquiry and on giving an opportunity to the defendant concluded that enormous quantity of stationery and forms were unnecessarily purchased causing financial loss to the tune of `8,60,372/- to the Government. It was also further found that there was a shortage of material worth `24,50,703/-. It was observed that the defendant being the Store Keeper was responsible for the same. Hence, it was found that there was pecuniary loss of `33,11,075/- to the Government as per the enquiry report dated 5 RFA No.100260/2018 08.02.2001. The enquiry report was accepted by the Government and an order was passed for recovery of the said amount from the defendant. Though the defendant was intimated about the same and calling for repayment, he failed to do so. Therefore, sanction was sought to initiate proceedings for recovery from the defendant as well as other erring officials and sanction was also accorded to file a civil suit for recovery of the same on 17.06.2010.
5. It is the further case of the plaintiff that the defendant during his tenure as Store Keeper during the period from 01.01.1991 to 22.06.1995, colluding with the Executing Engineer and Accounts Superintendent of the same office, created false, fabricated and bogus documents and misappropriated public funds causing pecuniary loss to the Government and inspite of sufficient notice, failed to repay the amount. Therefore, the 6 RFA No.100260/2018 plaintiff decided to file a suit and obtained permission to do so on 17.06.2010 vide Government Order No.PWD.273/2010. Consequently, the suit was filed for recovery of the said amount.
6. Pursuant to service of summons by the trial court, defendant appeared and resisted the suit by filing his written statement by denying the plaint averments and allegations. Defendant admitted that he was serving as a Store Keeper in National Highway Division, Belagavi for the period from 01.01.1991 to 22.06.1995 and that in the year 1991, he was in-charge of purchase and supervision of the material and there was purchase of material worth `5,23,68,825/- and payments were made to the extent of `4,25,39,533/-. Defendant denied that the Accountant General had raised audit objections to the effect that the purchase and expenditure had 7 RFA No.100260/2018 not tallied. Defendant also denied that by Government Order No.OE/45/COD.95 dated 04.04.1995, a COD enquiry was ordered with regard to the illegal purchase of stocks and that COD police had submitted a report on 30.11.1998. It was denied that the Chief Engineer, National Highway, Bengaluru, on being prima facie satisfied that the irregularity had been committed during period from January 1995 to March 1995 had submitted a report to the Government to take action against the defendant and other officers vide Government letter No.ID/205/Enqu/97 dated 24.07.1998 and that a show-cause notice consisting of nine charges was issued to the defendant and that he had replied on 15.02.1999 to the same. It is further denied that not being satisfied with the reply of the defendant, the Government had ordered departmental enquiry vide No.ID/205/Enq/97 dated 26.07.1999 who had conducted an enquiry and had submitted a report 8 RFA No.100260/2018 and further on issuance of another notice, defendant had submitted his reply. It was also denied that charge Nos.5 and 8 had been proved to the effect that the defendant had caused financial loss to the Government totaling to `3,31,075/- and that in respect of charge No.5, loss to an extent of `8,60,372/- and `24,50,703/-, totaling to `33,11,075/- had been caused to the Government by the defendant for which he had been dismissed from service. Denying all other contentions in the plaint, defendant sought for dismissal of the same. Further, a specific defence raised by the defendant was that the suit filed by the plaintiff was time barred and the suit was bad for non-joinder of necessary parties and therefore, sought for dismissal of the suit.
7. On the basis of the above pleadings and rival contentions, the trial court framed the following issues for its consideration: 9 RFA No.100260/2018
" ( i) Whether the plaintiff proves that the defendant has misappropriated a sum of `33,11,075/- as alleged?
(ii) Whether the defendant proves that the suit filed by the plaintiff is barred by time?
(iii) Whether the defendant proves that the suit is bad for non-
joinder of necessary parties?
(iv) Whether the plaintiff is entitled for the suit claim as sought for?
(v) What order or decree? "
8. In support of their case, the plaintiff examined two witnesses as PW-1 & PW-2 and have produced 18 documents which were marked as Ex.P-1 to Ex.P-18. While the defendant examined himself as DW-1 and he produced one document as Ex.D-1.
9. On the basis of the evidence on record, the trial court answered issue Nos.1, 3 & 4 in the 10 RFA No.100260/2018 negative and issue No.2 in the affirmative and dismissed the suit, without any order as to cost.
10. Being aggrieved by the dismissal of the suit, the plaintiff/State of Karnataka, represented by the Executive Engineer, National Highways Division, Hubballi, has preferred this appeal.
11. There is a delay of 312 days in filing the appeal, even then we have heard the learned Additional Government Advocate for the appellant- State and perused the material on record.
12. Learned Additional Government Advocate contended that the delay in filing the appeal has occurred due to bona fide and unintentional reasons. That after the dismissal of the suit on 24.04.2017, an application for certified copy of the judgment was made on 28.04.2017 and on 31.05.2017, certified copy was delivered to the District Government Pleader, who had written 11 RFA No.100260/2018 a letter along with his opinion to the Principal Secretary, Department of National Highways, Vikasa Soudha, Bengaluru. That on 20.06.2017, the said letter was marked to the Executive Engineer, National Highway Division, Hubballi and the same was put up for referring the matter to the head of legal Cell on 28.12.2017. The file was referred to the head of Legal Cell on 03.01.2018 and after approval by the Secretary to the Government on 08.01.2018, the Government Advocate was authorized to file the appeal and after the appeal was drafted after obtaining the papers and on intervention of the summer vacation between 27.04.2018 to 27.05.2018 on obtaining the relevant clarifications, ultimately, the appeal was filed on 04.07.2018. That the delay of 312 days in filing the appeal may be condoned or the State would suffer irrepairable loss and prejudice.
12 RFA No.100260/2018
13. Learned Additional Government Advocate further submitted that the appellant has a good case on merits and that the defendant has been responsible for misappropriation of `33,11,075/- and therefore, the dismissal of suit has caused prejudice to the appellant. Hence, the learned Additional Government Advocate submitted that the delay may be condoned and the appeal be heard on merits after issuance of notice to the respondent.
14. On merits, learned Additional Government Advocate submitted that the trial court was not right in answering issue No.2 in the affirmative and thereby, concluding that the suit filed by the plaintiff was belated as it was filed beyond the period of three years from the date of cause of action and hence, hopelessly barred by time. She contended that Article 55 of the Limitation Act, 1963 provides for three years to 13 RFA No.100260/2018 file a suit from the date of cause of action for recovery of pecuniary loss caused to the State Government and that the suit filed is in time.
15. Having heard learned Additional Government Advocate, we have considered the following two points:
" (i) Whether the delay in filing this appeal requires to be condoned?
(ii) Whether the trial court was right in dismissing the suit as being barred by time? "
Reg. POINT No.1:
16. We have narrated in detail the contentions of learned Additional Government Advocate regarding condonation of delay of 312 days in filing this appeal and perused the affidavit filed by the Executive Engineer, National Highway Division, Hubballi, in support of the said application. Paragraph Nos.3 to 7 read as under: 14 RFA No.100260/2018
"3. It is submitted that, the Appellant/State has filed the above appeal against the Judgment and Decree dated 24.04.2017 passed in O.S. No.305/2012 by the Principal Senior Civil Judge and Chief Judicial Magistrate, Belagavi at Belagavi.
4. It is submitted that after the Judgment and Decree passed by the Principal Senior Civil Judge and Chief Judicial Magistrate, Belagavi on 24.04.2017 in O.S.NO.305/2012. Thereafter on 28.04.2017, the District Government Pleader has submitted the application for the supply of certified copy on 31.05.2017, the certified copy was delivered to the District Government Pleader. Thereafter on 08.06.2017 the District Government Pleader has written a letter, along with his opinion to the Principal Secretary, Dept. of National Highways, Vikasa Soudha Bengaluru.
5. On 20.06.2017, the letter received in PWD and was marked to Section on 21.06.2017. The Letter received by the 15 RFA No.100260/2018 office of the PWD on 21.06.2017 inspite of heavy regular work on 28.12.2017 a letter was put up by the concerned Assistant for referring the file to the Head of Legal Cell for further action to prefer an appeal against the Judgment and Decree passed on 24.04.2017.
6. The file was referred to the Legal Cell on 03.01.2018 after the approval by the Secretary to Government and thereafter the Head of Legal Cell has issued Government Order on 08.01.2018 authorizing the Government Advocate, the same was sent to the office of the Advocate General, High Court of Karnataka, Dharwad Bench, Dharwad to prefer an Appeal against the Judgment and Decree passed in O.S. No. 305/12 on 24.04.2017.
7. The Government Order was received by Office of the Advocate General, Dharwad Bench, Dharwad on 24.01.2018. The said file was put up for drafting of the Regular First Appeal before the Government Advocate on 29.01.2018 and after 16 RFA No.100260/2018 verification the Government Advocate has sought the entire file to prefer the Regular First Appeal before the Hon'ble High Court of Karnataka on 29.01.2018 and the High Court Government Pleader after verifying the entire file was in need of the relevant documents in Original Suit to enable and prepare the Regular First Appeal and sought clarification from the executive Engineer, National Highway Division, Hubli and through Fax message dated 08.06.2018 there was Summer Vacation from 27.04.2018 to 27.05.2018 and after receipt of the details and documents sought by the High Court Government Pleader has drafted the Regular First Appeal and the same was filed on 04.07.2018 and there is delay of 312 days in filing the Regular First Appeal."
17. On going through the same, it is noted that the gross delay in putting up the letter in the Office of the Public Works Department by almost six months and reference to the Legal Cell after another period of six months and filing of the 17 RFA No.100260/2018 appeal after a further period of six months, though stated with reference to specific dates, nevertheless does not explain as to why at every stage, six months time was taken and the appeal was ultimately filed after a delay of 312 days. We find the explanation offered is not sufficient in law so as to condone the gross delay of 312 days in filing the appeal. It appears that there is a half- hearted approach on the part of the appellant Department and on the part of the State in seeking to assail the judgment & decree of the trial court in the instant case. Hence, we do not find any good reason to condone the delay in filing the appeal.
18. In the result, I.A. No.1 of 2018 seeking condonation of delay of 312 days in filing the appeal is dismissed. Accordingly, point No.1 is answered.
18 RFA No.100260/2018Reg. POINT No.2:
19. We have also considered the reason as to why the suit was dismissed precisely by answering issue No.2 in the affirmative, i.e., there being a delay in filing the suit.
20. In this regard, we note that under Rule 214(3) of the Karnataka Civil Services Rules (hereinafter referred to as 'KCSR' for the sake of brevity), no judicial proceeding, if not instituted while the Government servant was in service, whether before his retirement or during his re- employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years before such institution. Rule 214(6)(b)(ii) of KCSR states, a judicial proceeding shall be deemed to be instituted in the case of civil proceeding on the date the plaint is presented in the Court. 19 RFA No.100260/2018 Article 112 of the Limitation Act, 1963 deals with suit relating to miscellaneous matters, viz., any suit by or on behalf of the Central Government or any State Government could be filed within a period of 30 years from when the period of limitation would begin to run under the Limitation Act, 1963 against a like suit by a private person.
21. Learned Additional Government Advocate contended that the limitation period for filing a suit by or on behalf of the State Government is thirty years and not three years as held by the trial court in the impugned judgment with reference to the limitation Act.
22. However, we hold that it is neither three years nor thirty years in the instant case, since in respect of a Government servant, Rule 214(3) of KCSR applies. This is for the reason that under Section 29(2) of the Limitation Act, 1963, if a different period is fixed by a special or local law, 20 RFA No.100260/2018 such period would apply in preference to the period laid down in Section or Articles in the Schedule of the Limitation Act, 1963, unless it is not expressly excluded by such special or local law. Therefore, the period of limitation fixed by a special or local law would have an over-riding effect as against the general law of limitation.
23. Karnataka Civil Service Rules (KCSR) are special Rules while the Limitation Act, 1963 is the general law of limitation. Admittedly, in the instant case, the cause of action arose between the periods from 01.01.1991 to 22.06.1995 when the loss was caused to the State Government by the defendant / respondent herein while he was discharging his duties as Store Keeper. Therefore, having regard to the applicability of Rule 214 of KCSR, the contention of the learned Additional Government Advocate to the effect that the period of limitation to file the suit was thirty years 21 RFA No.100260/2018 cannot be accepted. Therefore, the suit filed by the plaintiff was hopelessly barred by time and hence, issue No.2 has been rightly answered in the affirmative.
24. In this regard, we also placed reliance on the judgment of a co-ordinate Bench of this Court, of which one of us was a member (Nagarathna J.), in the case of State of Karnataka through the Deputy Commissioner, Bidar and others Vs. Shri V.H.Agarkhed and Another reported in ILR 2017 KAR 3473.
25. Applying the same to the present case, it is noted that the allegations against the defendant are regarding the period from 01.01.1991 to 22.06.1995 but the suit was instituted on 16.10.2012, which is highly belated and that too, after the dismissal of the defendant from service. Even after the dismissal from service, it was only on 16.02.2010 that the State 22 RFA No.100260/2018 Government permitted recovery of the amount which is highly belated and the suit was filed later on 16.10.2012. It is not known as to what the reason was for the State Government to grant permission to recover the amount only on 16.08.2010 when the charges were proved against the defendant as per the enquiry report and order being passed as early as on 03.05.2002 holding that the defendant had caused financial loss to the Government to an extent of `33,11,075/-. Almost ten years have elapsed since then in filing the suit. As noted above, it is only a half-hearted attempt by the State to recover the amount from the defendant. Had the State been vigilant enough and exercised its right to recover from the defendant, it would have filed the suit in time particularly, having regard to Rule 214(3) of the KCSR which has been framed by the State Government keeping in mind the interest of the State as well as the Government servants. Having 23 RFA No.100260/2018 regard to the bar contained in Rule 214(3) of the KCSR, the suit filed by the appellant/State was not maintainable and hence dismissed. Accordingly, we answer point No.2 holding that the trial court was right in dismissing the suit as being barred by time. We find no merit in the appeal also.
26. In the circumstances, appeal is dismissed both on delay as well as on merits.
Sd/-
JUDGE Sd/-
JUDGE RK/-