C.R. No. 619 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh … C.R. No. 619 of 2009 Date of decision: February 4,2009 Avtar Singh son of Diwan Singh ..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 12.11.2008 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. 619 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 12.11.2008 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. 619 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. 619 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. 619 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