Case: Punjab State Civil Supplies Corp. Ltd Vs. Sikander Singh

2. The Respondents herein were at all material times working as Inspector and Field Officer/Supervisor. They were posted at Moga. A physical verification of stocks was carried out from 21st June, 1985 to 26th June, 1985; pursuant whereto shortages of 4513 bags of wheat were said to have been found.3. Allegedly, Tilak Raj, defendant No. 1 deposited in two instalments 2400 bags and 210 bags of wheat. In an audit report shortages of stock of articles were said to have been highlighted.4. It was alleged that, thus, shortages of wheet took place due to lack of proper supervision on the part of the Respondents. It was furthermore alleged that whereas the defendant No. 1 was the actual holder of the stock, the defendant No. 2 being Senior Superintendent was negligent in making proper supervision of the godowns.5. Departmental proceedings were initiated against both of them. They were dismissed from services. In the departmental proceedings, against the defendant No.1, indisputably the appellate authority directed his reinstatement subject to his depositing remaining 400 bags of wheat, found to be short. He complied with the said direction of the appellate authority. As despite the same, he was not reinstated, a writ petition was filed by him before the High Court wherein the High Court directed his reinstatement. The matter came up before this Court in SLP(C) No.5609 of 1989 and by a judgment and order dated 23.8.1989, while upholding the direction of the High Court as regard his reinstatement the relief of backwages was denied.6. So far as the order of dismissal passed in the departmental enquiry against the defendant No. 2 is concerned, he filed a suit which was the subject matter of R.S.A. No. 2232 of 1998 before the High Court; the suit as also the first appeal having been dismissed by orders dated 19.11.1992 and 23.2.1998 respectively.7. The Appellant herein filed a civil suit before the Civil Judge, Moga against the Respondents herein for recovery of the price of the quantity of wheat which had been found to be short.8. In its plaint, the Appellantloss has been suffered by Punsup on account of mis-appropriation and unauthorized use of stocks by the defendant No. 1 & 2 for their own interest and benefit. Both the defendants are therefore equally responsible to make good the shortages and loss suffered by the plaintiffs on this account.Defendant No. 1 in his written statement denied and disputed the said allegation stating that he had been made a scapegoat. Defendant No. 2 in his written statement averred that defendant No. 1 being Inspector was the custodian of the stock and took over the charge from the previous Inspector and it was he who handed over the charge to the successor and, thus, responsible for the stocks hold by him and as a supervisor he had nothing to do with holding of actual stock.10. The said civil suit was dismissed as against the defendant - Respondent No. 2 whereas the same was allowed as against defendant - Respondent No. 1. A Regular First Appeal was filed in the High Court by the Appellant thereagainst which was marked as RFA No. 1780 of 1997. Defendant No. 1 also filed an appeal thereagainst which was marked as 347 of 1997. Defendant No. 2, as noticed before, also filed a second appeal, which was marked as RFA No. 2232 of 1998. By reason of the impugned judgment the High Court as regard the liability of defendant No. 1has been admitted that Shri Tilak Raj defendant No. 1 after having conceded the shortage of the bags has been directed by the Appellate Committee to deposit 2/3rd of the said bags and that had been made the condition precedent for reinstatement in service. As a sequel thereto, Tilak Raj has deposited the said bags and has been reinstated accordingly. PUNSUP has not been able to address meaningful arguments for establishing the fact that the claim is in exclusion of the said bags or is in inclusion of the said bags. It is also the admitted case that Tilak Raj had joined the duty at the place of posting on April 6, 1984 and nothing has been brought on record as to whether the stocks etc. were in order on the date of his posting as the reliance has been placed upon the audit report for fixing the liability. However, there is divergence vis-a-vis the physical verification which has been carried out and the audit report which has been relied upon. Thus, PUNSUP has not been able to establish the clear cut liability against defendant No. 1. It shall not be fair to rely upon the audit report as the contents thereof have not been proved by way of any supportive evidence brought on record by PUNSUP. It is the settled law that liability cannot be fastened only on the statement of account/ audit reports as it is not discernible as to at what stage such kind of loss had been suffered and at whose hands as nothing has been brought on record that on the date of joining by defendant No. 1 the shortages were in existence or came into existence thereafter.So far as Defendant No. 2 is concerned, it wasis a separate matter that he has been held liable for dereliction of duty vis-a-vis supervisory control but that too has been interpreted differently in view of the judgments rendered by the Courts below. Even otherwise from the facts brought on record, the supervisory control of defendant No. 2 came into force w.e.f. December 21, 1984 and that prior thereto, the articles being in actual factual control of defendant No. 1, the dereliction of supervisory control could not have been attributed to defendant No. 2. It is also the admitted case of the parties that defendant No. 2 submitted a complaint which is dated April 10, 1985 to the immediate superior i.e. the District Manager and that the entire action was started on the basis of the said complaint. In this view of the facts, dereliction of duty vis-a-vis supervisory control is not attributable to defendant No. 2.As regard the suit arising out of departmental proceeding against the defendant no. 2, which was the subject matter of the Second Appeal, the High Courtthe appeal filed by Sikander Singh has been dismissed as has been dismissed from service only on account of dereliction of duty of supervisory control. However, the admitted case is that the control of stocks was that of defendant No. 1 and not that of defendant No. 2. Since I have concluded that dereliction of duty vis-Ã -vis supervisory control is not attributable to defendant No. 2, as such the order of dismissal passed against defendant No. 2 is not sustainable.;In view of the above discussions, RFA No. 1780 of 1997 filed by PUNSUP fails and is hereby dismissed and the RFA No. 347 of 1997 filed by Shri Tilak Raj defendant No. 1 is allowed and the suit filed by PUNSUP is dismissed. RSA No. 2232 of 1998 filed by Sikander Singh is also allowed in view of the fact that it has been held that dereliction of duty vis-Ã -vis supervisory control is not attributable to defendant No. 2 - appellant in RSA No. 2232 of 1998."

Reasoning:
19. If the Appellant herein intended to proceed further against the defendant No. 1, it could have done so by questioning the correctness or otherwise of the said order of the appellate authority before an appropriate forum. Deposit of the requisite number of bags of wheat and/or price thereof resulted in the defendant no.s 1 reinstatement pursuant to an order passed by the High Court as also this Court. For his act of misconduct, he had also been denied backwages. If in the departmental proceedings, defendant No. 1 had been asked to pay a penalty by way of recovery of loss to the extent of which he was found responsible, we are of the opinion that no civil suit could have been maintained for thecause of action.20. So far as the defendant No. 2 is concerned, no finding of fact has been arrived at that he for any intent and purport appropriated any article to his advantage. In absence of such a finding, we fail to understand as to how under the common law, he could be proceeded against by way of a civil suit for recovery of money. A civil suit for recovery might have been maintainable only if he was found to have misappropriated the goods. Admittedly he has not. He was said to be negligent in performing his duties. It is nowthat negligence simpliciter may or may not amount to misconduct.In this case, we have noticed that the losses caused by reason of misconduct on the part of the defendant No.1 had been directed to be recovered in the departmental proceedings and the same stood recovered.Negligence in the performance of a duty under a contract of employment may give rise to a disciplinary proceeding but as at present advised, in a case of this nature, we are of the opinion that the same would not give rise to a cause of action for recovery of money for the goods lost as in the disciplinary proceeding itself recovery of money from the delinquent can be directed by way of punishment.We are, therefore, of the opinion that in view of the findings arrived at by the High Court, the suit filed by the Appellant herein being not maintainable have rightly been dismissed.37. So far as the second appeal preferred by the Defendant No. 2 being RSA No. 2232 of 1998 is concerned, it appears, that no substantial question of law had been framed by the High Court as was mandatorily required to be done in terms of Section 100 of the Code of Civil Procedure. We have noticed hereinbefore that the Defendant No. 2 filed a suit questioning the order imposing punishment of removal or dismissal from his service. The said suit was dismissed. The appeal preferred by the Defendant No. 2 was also dismissed. In the second appeal, indisputably, the High Court was obligated to formulate a substantial question of law. The High Court proceeded to allow the appeal preferred by the Defendant No. 2 only on the premise that the dereliction of dutys supervisory control is not attributable to him. The effect of the judgment in the civil suits filed by the Corporation would require consideration in the light of the findings arrived at in the disciplinary proceedings.38.The High Court failed to consider that the question of negligence in a departmental proceedings and a suit for recovery of money must be viewed differently.In a disciplinary proceeding, the provisions of the Evidence Act are not applicable unlike in a civil suit. In the suit filed by the Defendant No.2, the only question which arose for consideration was different from the issues which arose in the civil suit of the Corporation. The scope and ambit of the suit filed by the Respondent No. 2 herein questioning the order of dismissal from services was limited.39. The civil court could interfere with the said order in the event, inter alia, it was found that the order of dismissal by way of punishment has been imposed in violation of the procedures laid down in the statutory rules or in violation of the principles of natural justice or suffered from illegalities or procedural irregularities were committed by the enquiry officer or the disciplinary authority in holding the departmental proceedings. In view of the fact that the suit of the Defendant No. 2 was dismissed and the appeal preferred thereagainst had also been dismissed, it was obligatory on the part of the High Court to formulate a substantial question of law. Without formulating such substantial question of law in a case of this nature the High Court could not have set aside the concurrent findings of two courts.