Important Points1. Tortious acts, being not the ones which could be subject matter of departmental proceedings or negligence under a contract of employment, cannot give rise to a civil liability by way of monetary compensation to the employer except in certain circumstances.2. Question of negligence in a departmental proceedings and a suit for recovery of money from the delinquent must be viewed differently.

Headnote:Service Law—Dismissal from Service—Shortage of 4513 bags of wheat in godown where respondent No. 1 was employed as Inspector and respondent No. 2 was Field Officer/Supervisor—Both respondents were alleged to be negligent in making proper supervision of godowns and departmental proceedings were initiated against both—Appellant filed civil suit for recovery of price of quantity of wheat found short against both respondents—Suit was decreed against defendant No. 1—High Court set aside judgment in appeal—Appeal—In the departmental proceedings negligence of defendant was held to have contributed to loss of 2/3rd of shortage and by way of penalty he was asked by appellate authority to deposit requisite number of bags of wheat or pay price thereof—Defendant had complied with said order—No civil suit could have been maintained for self-same cause of action—No finding of fact against defendant No. 2 that he for any intent and purport appropriated any article to his advantage—Suit was rightly dismissed being not maintainable.
Held : The Appellant is a ‘State’ within the meaning of Article 12 of the Constitution of India. The terms and conditions of service by and between the Appellants and the Respondents herein are governed by the service rules and/or terms and conditions of contract. If the Respondents herein had committed misconduct they could have been and in fact were departmentally proceeded with. In the said departmental proceedings appropriate punishments had been imposed upon them. So far as defendant No. 1 is concerned, therein his negligence had been held to have contributed to the loss of 2/3rd of the shortages and by way of penalty, he was asked by the appellate authority to deposit the requisite number of bags of wheat and/or pay the price thereof. The said order having been complied with attained finality. It is binding on the appellant. The dispute cannot, therefore, be permitted to be reopened. 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 the self-same cause of action. 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. (Paras 15, 16 & 17)
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. (Para 31)

Judgment

S.B. Sinha, J.—These appeals arising out of a common judgment and order dated 6.7.2001 passed by the High Court of Punjab and Haryana at Chandigarh were taken up for hearing together and are being disposed of by this common judgment.

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 wheel 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.

In its plaint, the Appellant contended :

"...The loss has been suffered by Punsup of 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."

8. 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.

9. 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. 1 held :

"...It has been admitted the 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

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2006 Supreme(SC) 164

Cases Referred (9)