IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 19T1 )AYOF OCTOBER2011 PRESENT THE HON‘BLE MRS.JUSTICE MAtIJULA CHELWR AND THE HON’BLE MR.JUSTICE V SURI APPA RAO RJS NJ4121200Z BETWEEN Shn K V Snnivas Aged 63 years, 0cc: Retired Junior Engineer, Ranebennur, Dist: Haven - 581 115 APPELLANT [By Sri N P. Vivekmehta, Adv. I f ovtrr nent K dha ‘ia Soudia Ba igalore-1. 2 Tne Assistant Exend’ve Engineer cilia Parisiwa. S’ib-flrvisiun Rarsebennur. flst Hdveri 54 15 PFSflIIDENTS AG! or rv.a! unit Jo XLI C r g ‘. ‘— It— iv’s e ‘ni 2 decree of Addl.Clvil Judge (Sr.Dn), Ranebennur, dated 14.3.2007 passed in O.S.38/2002 and dismiss the suit of plaintiff, and etc. This appeal coming on for hearing this day, MANJULA CHELLUR 3., delivered the following: JUDGMENT The present appeal is filed by a private party against whom a decree for recovery of money Le.Rs.6,85,104=60 Ps. together with Interest at 18% p.a. from the date of suit till the date of realisation is passed. 2. In brief the facts leading to the filing of this appeal are as under: The appellant was a Junior Engineer in the Office of the Assistant Executive Engineer in the Public Works Department at Ranebennur and was in-charge of Stores from 3.10.1988 to 2.6.1995. Thereafter, he got transferred to PWD, Gadag, in June 1995. According to the plaintiffs, while handing over the charge of the Stores there was shortage of store materials like hume pipes, steel, cement, etc. and the misappropriation of the said material was assessed at Rs.8,47,326.60 ps. The appellant was asked to make good the loss. It is alleged that inspite 3 of several requests and demands the appellant did not pay the amount and therefore, the plaintiffs approached the Clvii Court praying for decreeing the suit for Rs. 6,85,106.60 ps together with interest. 3. According to the plaintiffs, a departmental inquiry against the defendant came to be conducted after Issuing several notices demanding him to set-right the things and later on the Executive Engineer, PWD, Dharwad, after giving sufficient opportunity to the defendant-appellant proceeded with the inquiry and ultimately held that the delinquent official was guilty of the charges leveled against him and that he has misappropriated the store materials to the e?ctent of Rs.8,47,326.60 ps. He directed the authorities to recover the said amounts from the appellant- delinquent. 4. The order passed by the Inquiry Officer was intimated to the defendant calling upon him to make good the loss caused to the department and inspite of that the defendant did not reimburse the amount to the /5 4 Government. Therefore, the Department approached the Civil Court by filing the present suit. 5. As against this, the defendant appeared and contested the mater before the trial Court, admitting that he was in-charge of the Stores till 1995 when he was transferred to PWD, Gadag. According to him, at no point of time he mismanaged or misappropriated the articles In the Stores as alleged and he has maintained all the records properly entering the stocks as and when it was received or given. According to the appellant-defendant, he has never misappropriated any of the materials In the Stores. He alleged that, till date the department has not given the list of details of the articles said to have been misappropriated. According to him, the cement was directly sent to the place of work by the supplier and the question of misapproprlating cement would not arise. He totally denied the entire claim and contended that even if he was due any amount to the department, according to him, the claim of the plaintiffs is barred by time. According to him, In the absence of furnishing him the 75 5 details of the so-called artides said to have been misappropriated, they have no right to lay such claim against him and accordingly sought for dismissal of the suit. 6. Based on the above pleadings, the following issues came to be framed: 1. Whether the plaIntiff proves that defendant has misappropriated store materials worth of Rs.8,47,320.60 Ps while he was working as a Store Keeper during the period from 1992 to 1995? 2. Whether the plaIntiff is entitled for recovery of Rs.8,47,320.60 ps. with future interest at the rate of 18% p.a. from the date of suit, from the defendant? 3. What order or decree? AddI. Issue No.1: Whether the suit Is barred by limitation? Addl.Issue No.2: Whether defendant is entitled for refund of Rs.1,62,220/- with interest at the rate of 18% per annum as a counter daim? 7. Before the trial Court, the plaintiffs examined PW.1 Assistant Executive Engineer and got marked 27 documents Exs.P.1 to P.27. The appellant-defendant ‘1 6 examined himself as DW.1 and got marked one document Ex.D1, a list prepared by the defendant before the Enquiry Officer. 8. Regarding Issue No.1, PW.1 — the Assistant Executive Engineer says, between 3.10.1988 to 2.6.1995 the appellant was working as Junior Engineer under him and he was In-charge of the Stores from September 1991 to June 1995. He further says, the duty of defendant was to maintain proper stock of the materials like PVC pipes, hume pipes, HP sets, electrical spares, cement, steel and other articles. According to him, the defendant was liabie to pay the loss to the Government in case any shortage arises. He further says, at the time of relieving him on transfer, it was found that the defendant had misappropriated stores materials as mentioned in the separate statement annexed to the plaint to the extent of Rs..8,47,326.60 ps and therefore, he was asked to make good the loss to the Government. When repeated requests and reminders to make good the loss did not work on the defendant-appeiiant, he requested the Chief Executive ‘5 1 Officer, Zilla Panchayat, Dharwad, to take appropriate action against the said defendant by furnishing details of charges leveled against the defendant. Following the report, charge sheet came to be filed against the defendant. The Chief Executive Engineer, PWD, Dharwad, informed the matter to his higher ups to hold an Inquiry against the defendant. The Executive Engineer, PWD, Dharwad was directed to conduct the inquiry against the defendant and submit a report. 9. At the time of inquiry proceedings, when the appellant-defendant was called upon by the Inquiry Officer to appear before him to explain the alleged misappropriatIon, he did not appear and the inquiry was conducted ex-parte. On the basis of the relevant documents and evidence of the concerned offidais, an order came to be passed holding that the defendant during his tenure has misappropriated the store materials to an extent of Rs.8,47,326.60 ps and by his order dated 4.11.1999 directed the department to recover the said S amount from the appellant defendant and other benefits received by the defendant from the Government. 10 In the cross examination the Assistant Fxecutiv€ Enczineer PW 1 admits he was deposing based on the records available in the department He refers to different correspondence iddressed to his hIgher ups Intimating and addressing a opy of wh ch to the defendant indicating the amountc due towards the misappropriated articles One of such correspondence is dated 15 11 1995 at F-x.P 6 This was addressed to the Executive Engineer PWD, Gadag from the Iilla Panchayat Haven A copy of the same was addressed to 1 K V S inivas the presert appellant, asia i t approa I’ he rcc ed ignee at areb .i gt ag ftckiac x ct e ct I. t 9 Zilla Panchayat Engineering Division, Haven, asking them to send the entire details of the list of shortage articles round whiI handing over charge 11. Before the tnal Court the Department produced the statement rhowing the list of artides which were found short at the time of elieving the appellant on his transfer to Gadag and also the departmental Inquiry papers The trial Court found that apparently the appellant did not appear before the Inquiry Officer to defend himself even after sufficient opportunity was given and ultimately the Inquiry Officer proceeded witi thc. inquiry placing the appellant °x parte Ultimately the inquiry was conduded ldirg I c. pe iant guilty a id ccp r ibic. he tg t iateil ot 8 s ‘3 t 10 F nquiry Officer Itis not in dispute, that the authorities were aware of the shortage of the store materials when the appellant was relieved from Ranebennur office on his transfer to Gadag in 1995 A’ a matter of fact they were also aware of the cost of these missing articles or shortage articles When the plaintiffs approached the trial Court seeking a decree for Rs.84l 326 60 ps they ought to have established their claim placing all the relevant matenals before the Court No doubt, the Inquiry Officer, who is an in house officer of the department has held that there is misappropriation of the stores articles by the appellanttc thetrnecrRc83 ?O6Orc ca ed ver me* d ocate ai y admts c xa 1 f tie iii ffe 3 C pt C d[ clq 0 g a C. 11 conclusion that there is misappropriation of the articles amounting to Rs8,47326.60 ps 14. When the plaintiffs approached the tnal Court seeking for a decree against the defendant and in the light of the defendant protesting the claim of the plaintiffs before the trial Court, it is expected on the part of the plaintiffs to establish their claim with all the necessary material on record. In the present case, except the correspondence between various Officers of their Department at different places and the Enquiry Report, they did not even bother to examine the successor-in office of the appellant who discovered thc shortage of the 3rticlc. he Store he act or part cipatio of the or. a ‘ c.par e. r r a akc a tag ot by là • f roi at the t has delib a fore the / 0 f’crr and th c,ulry eport YILa 1 jt • ‘ouid be binding oOl i it Or the ‘F’’ n Inc i irier trj ,, j., tar J.3 — tfki larr tF’ ,.,,I .‘irt ., .c’t •r, r€1’ • — . 1i ...(‘ff ‘j-.rC, ..y 1 P 1 were responsible to bring out on record the misappropriation committed by the defendant ie as to how the msppropriation has happened on what basis they have oncluded that there is misappropriation and what exactly were the articles that were found missing, when such articles were supplied to the stores When such articles were found missing from the stores whether the stock regist€r indicated the availability of such material and who assessed the list of shortage of articles and so also the assessment of the cost of the missing articles or shortage articles Unless the department was able to place n record all these details we cannot opine that the plaintiff wa attempting t discharge th€. burden f proving conclusion. Based on the evidence of Assistant Executive Engineer, who was not even the storekeeper subsequent to the appeflant the trial Court has concluded that the appeNant wa lue sum of Rs 6 85,104 60 ps It is also pertinent to mention that the Inquiry Officer was not examined to show on what basis he concluded or arrived at the dues to be paid by the appellant. In that view of the matter we have to hold that the 1 issue is not established by the plaintiffs before the trial Court, It is also pertinent to mention that when the IA filed by the defendant calling for records from the department was allowed the plaintiff came out with an answer that the accou t b oks re iot available H ugI v e cann t fird Ii and the Inquiry Officer came out with the report on 4 11 1999 that the appellant was due a sum of P.s.8 47,326 60 ps therefore the period of limitation to Ne the suit reckons from the date when the misappropriation was revealed It is not the case of the plaintiffs respondents that they became aware of the actual amount due by the defendant when they receIved the InquIry Report in the year 1999 It is their specific case, that on the date of relieving the appellant on his transfer from Ranebennur to (adag, they became aware of the shortage of certain articles in their Stores section in th year 1 99 itself T hereft re when they vere aware f w shortage of the articles in the year 1995 tself and they ar a s c ne. ai t 01 nortag ar icies t t cc, t 0 ‘S disclosed the amount due towards the shortage of articles. At Ex.P.6 a copy is addressed to the appellant demanding him to set right the shortage in the stores articles with reference to the ost of articles at Rs.8,28,303-30 PS Very conveniently the notices addressed to the appellant in November 1995 are not produced. It is not the case of the. plaintiffs respondents that they have not sent notices to the appellant defendant in the year 1995 demanding him to set nght the things According to the appellant, he has received these letters in the year 1995. In that vIew of the matter, when the amounts due from the defendant was certain in the year 1995 tcelf, there was no reason why the plaintiffs chose to f le the suit only in the year 2002 almost after a lapse o9 7 years Article 113 of tne L mutation Act us eleiant here, which cays. a suit has to be f’ied within three years fr,m the date on which the ght ‘v t ue acr’ies t3 the ‘siamntiff. The right to rcrue.d to tht olaintiffs tn the d.y tne appeilant ss relueed from RnPflfl1j’ .c . rtfl ek’eeper dAd mare )r, 0’: ic H .hp-j :q.. ti” . 4 r... rf Ht exart ‘mr 4 ut f?’ Jrte. .‘. t I 16 17. The argument of the plaintiff respondent that till the inquIry was conducted they could not ascertain the actual amount due by the defendant cannot be accepted for the simple reason, that in the year 1995 itself they were aware of the quantum of the amount due by the appellant and further during the inquiry, no details were collected by the Inquiry Officer except placing reliance on the report of the concerned Engineer from Ranebennur with reference to the list prepared by them annexed to the plaint. Neither before the InquIry Officer nor before the trial Court the plaintiffs made any effort to place on record the details regarding the shortage of goodc and the other materlais. U N are surprised and pained to note that the iearned t ia Jidge i der an impression that the I. mitaton A t I notappiytotht siits iledb the o er ment Itisto e te thattheGo n ke i qantwho at to the Court set a departmental nquiry report itseif was an ai r the plaintiffs to rcro,er the misdppropriated an,o ‘* then there .as no nee.i for the paint’ffs ti’ ap,oern the Civil tourt for 1’ recovery of the money from the defendant. Having come to the Court at a belated stage, now it is not open to them to say that they were trying to ascertain the actual amount due from the defendant by holding the inquiry. Even when the departmental inquiry was pending, the plaintiffs could have filed the suit for recovery of the amount based on the details pertaining to the shortage of articles in the stores as found at the time of relieving him from Ranebennur. Of course, the plaintiffs had to substantiate the alleged misappropriation by bnnging on record several facts through the witnesses and also through the dorunients. Having lot hosen tc do so and having approached the Court at a belated stage after i lapse of 7 ear tr the datc. t ti St d tiara he ca 1)95, wc e e pinio re at tob for non and for ( cuP heyond tt ) Auo dnqly, tht appcal c he judgment Ar,.J r4ss’I t,v .he p.i • iqe !‘ 1)111,. V I)’. Ranebennur, in O.S No. 38/2002 dated 14.3.2007 is set aside and the suit is dismissed. So far as the rejection of counter claim of the appellant defendant by the trial Court. no appeal as such is filed by the defendant appellant Therefore we are not considering his counter dam. Sd? St r