Civil Revisions No. 1285 & 3411 of 2011 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH 1- Civil Revision No. 1285 of 2011 Date of decision. 18. 11.2011 State of Punjab and others .... Petitioners Versus Jaswanti and another ...... Respondents 2- Civil Revision No. 3411 of 2011 Date of decision. 18. 11.2011 Jaswanti and another .... Petitioners Versus State of Punjab and others ...... Respondents -- CORAM: HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present: Mr.Yatinder Sharma, DAG, Punjab for the petitioners in CR No.1285 of 2011 & for the respondents in CR No.3411 of 2011. Mr.Vivek Suri,Advocate for the respondents in CR No.1285 of 2011 & for the petitioners in CR No.3411 of 2011. **** Vijender Singh Malik, J. Jagan Nath, the husband of Jaswanti and father of Rani had been an employee with the Forest Department. His services were terminated by Conservator of Forest, vide order dated 28.08.1995. He Civil Revisions No. 1285 & 3411 of 2011 --2-- filed an appeal, which was dismissed by Chief Conservator of Forest, Chandigarh, vide memo dated 24.11.1997. Jagan Nath was not paid his pay and allowances from 23.05.1994. He challenged this aspect as well as the aspect of termination of his services by way of a civil suit. The said suit was decreed by learned Civil Judge (Junior Division), Patiala on 13.03.2001. Aggrieved by the said judgment and decree, the State preferred an appeal before learned District Judge, Patiala, which was dismissed being barred by limitation. The respondents preferred civil revision against the said order, which was allowed on 24.09.2007 condoning the delay in filing the appeal and directing learned First Appellate Court to decide the same on merits. The said appeal was dismissed on merits on 07.03.2009 by learned Additional District Judge, Patiala. The regular second appeal preferred against the said judgment failed on 12.08.2009 with this court dismissing the same in limine. Jagan Nath died on 14.01.2008. The decision in the suit had attained finality requiring the respondents to make payment of the dues of Jagan Nath. The same was not done and, therefore, the petitioners preferred an execution application before learned Civil Judge (Junior Division), Patiala. In the said execution application, notice was given to the respondent-State, who in place of making payment of the dues of Jagan Nath, preferred objections to the same. In the said objections, the respondent-State claimed that they are entitled to a sum of Rs.4.78.298/- as Civil Revisions No. 1285 & 3411 of 2011 --3-- per orders no.81 & 82 dated 30.07.2002, which was found due from him in the disciplinary proceedings, in compliance with which, Jagan Nath was dismissed from service. The petitioners claimed in reply thereto that Jagan Nath was not in service on 30.07.2002. According to them, he could not, therefore, be dismissed from service under the aforesaid orders. Hearing learned counsel for the parties, learned Civil Judge (Junior Division), Patiala dismissed the objections filed by the respondent- State, vide order dated 03.12.2010(Annexure P-7) and directed the State to make payment. However, learned Civil Judge (Junior Division), Patiala simultaneously declined the prayer of the petitioners for releasing the pensionary benefits also. Against the dismissal of the objections, the respondent-State of Punjab and others have brought Civil Revision No.1285 of 2011 and aggrieved by the executing court declining the prayer for releasing the pensionary benefits to the petitioners, the heirs of Jagan Nath, have brought Civil Revision No.3411 of 2011. Since the two revision petitions have been brought against the common order, arguments have been heard in the same together and they are being decided by way of this common judgment. I have heard Shri Yatinder Sharma, learned Deputy Advocate General, Punjab for the petitioners in CR No.1285 of 2011 and for the respondents in CR No.3411 of 2011, Shri Vivek Suri, learned counsel for the respondents in CR No. 1285 of 2011 and petitioners in CR No. 3411 of 2011 and have gone through the record. Civil Revisions No. 1285 & 3411 of 2011 --4-- Learned Deputy Advocate General, Punjab has submitted that the disciplinary proceedings had been initiated against Jagan Nath and in pursuance of the same, recovery of Rs.4,78,298/- is due from him for causing loss to the State by his mis-conduct and he has been ordered to be dismissed from service. According to him, he had challenged the orders no.81 and 82 dated 30.07.2002 and that suit has been dismissed. He has submitted that Jagan Nath was prosecuted under the Prevention of Corruption Act and he was convicted for an offence thereunder. According to him, after unsuccessfully challenging the disciplinary orders, the dues of the department as ordered by orders no. 81 and 82 dated 30.07.2002 cannot be questioned by the heirs of Jagan Nath. He has submitted that the amounts due to the heirs of Jagan Nath, deceased had been in a sum of Rs.7,61,740/-, which included interest while Jagan Nath was liable to pay a sum of Rs.5,34,459/- to the department. According to him, after adjusting the amounts due from Jagan Nath, a sum of Rs.2,27,281/- stands paid to the heirs of the deceased by way of a cheque. Learned Deputy Advocate General, Punjab has further submitted that dismissal of Jagan Nath from service vide orders dated 30.07.2002 would forfeit his rights to pension and, therefore, learned trial court was fully justified in declining the prayer of the heirs of Jagan Nath, deceased to pensionary benefits. Shri Vivek Suri, learned counsel for the heirs of Jagan Nath, deceased, on the other hand, has submitted that the services of Jagan Nath Civil Revisions No. 1285 & 3411 of 2011 --5-- were terminated on 28.08.1995. According to him, though his suit was decreed vide judgment dated 13.03.2001, yet he was not re-instated before his attaining the age of superannuation. He has submitted that he could not be dismissed again without re-instating him. He has further submitted that Jagan Nath, deceased attained the age of superannuation on the last day of October, 1998. According to him, the order of dismissal of Jagan Nath from his service, is, therefore, bad. He has further submitted that termination of services of Jagan Nath, ordered on 28.08.1995, had been set aside and , therefore, he would be deemed to have retired in service and he was entitled to pensionary benefits and now legal heirs of the deceased are entitled to those benefits. The conviction of Jagan Nath for an offence punishable under section 409 IPC and section 13(i)(c) of the Prevention of Corruption Act, vide judgment dated 19.01.2006 would have no bearing on the controversy involved in the revision petition before me. The first question to be determined here is as to whether the recovery of any amount could be ordered in the disciplinary inquiry against the delinquent official and as to whether the said amount can be set off against the dues of the employee sought for by his heirs by way of an execution. The answer to this question comes in a decision of this court in Shakti Kumar v. Punjab State Civil Supplies Corporation and others, 2009(5) RCR (Civil) 817 where it is held as under:- “As noticed above, in the plaint, the respondent- Corporation has clearly alleged that they are entitled to Civil Revisions No. 1285 & 3411 of 2011 --6-- 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 Punjab State Civil Supplies Corporation Ltd. v. Sikander Singh, 2006(2) SCT 26,, 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 of 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 Civil Revisions No. 1285 & 3411 of 2011 --7-- 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.” In view of the law laid down as above, the department could not recover any amount in the name of loss caused by Jagan Nath to the department by way of disciplinary proceedings. So the amount found due to the department from Jagan Nath could not be adjusted against the dues of Jagan Nath till the date of his retirement which were withheld by the State. The order of learned Executing Court is, therefore, not bad, so far as this aspect is concerned. Coming to the other aspect of the controversy, it can be said in definite terms that no order about Jagan Nath being entitled to pension or his heirs being entitled to the same has been made by the courts in the suit brought by Jagan Nath challenging his termination order dated 28.08.1995. The operation of that judgment, upheld up to this court, would be that he would be deemed to be in service till October 1998 and would be entitled to his salary and other dues. Withholding of pension and other benefits would give rise to a separate cause of action to Jagan Nath and after his death to his heirs. The heirs cannot seek an order of payment of pensionary benefits in execution of decree dated 13.03.2001, confirmed in first appeal vide judgment dated 07.03.2009 by learned First Appellate Court as also by this court vide judgment dated 12.08.2009. Civil Revisions No. 1285 & 3411 of 2011 --8-- Therefore, I find no ground to interfere with the impugned order on the submissions made on either side. The revision petitions are, therefore, found to have no merit and are dismissed. (VIJENDER SINGH MALIK) JUDGE 18.11.2011 dinesh