JUDGMENT Kamlesh Sharma, J.—In this Regular Second Appeal, the appellant-plaintiff, Sh. Devinder Bansal, has assailed the decree and judgment dated 22-9-1980 of District Judge, Solan Division at Solan, whereby the decree and judgment dated 30-7-1978 of Senior Sub-Judge, Solan was set aside and his suit was dismissed. 2. Sh. Devinder Bansal in his suit filed in the Court of Senior Sub-Judge prayed for a decree of Rs, 500 with costs by way of damages suffered by him as a result of negligence of the officials of Post and Telegraph Department As per the allegations made in the plaint, the daughter of Sh. Devinder Bansal, who was studying in Birla Balika Vidya Pith, Pilani, in the year 1977 was to arrive at Delhi on 28th November by Chetak Express. She had gone to Jaipur to attend a R C. C. Camp organized by the School. As the camp was extended for a day, the principal of the school sent a telegram to Sh. Devinder Bansal on 26-11-1977 from Jaipur informing him that his daughter was reaching on 29-11-1977 by Chetak Express instead of 28th November, 1977. Although the telegram was received by the Telegraph Office at Solan on 27-J1-1977, yet, it was delivered to Sh. Devinder Bansal on 29-11-1977 at 12 00 noon. Sh. Devinder Barsal had already left for Delhi on 28-11-1977 and when he did not find his daughter, he was put to great tension and harassment. He made several telephonic calls and incurred other expenses to know the whereabouts of his daughter till he was informed of the message given by the telegram in question. He tried to ventilate his grievance by making a representation to the Superintendent Telegraphs Traffic, Himachal Division, Dharamshala who assured him that after enquiry necessary action will be taken against the official found responsible for the delay in the delivery of the telegram. When no action was taken, Sh. Devinder Bansal instituted the present suit. 3. The respondents-defendants, Union of India and another, resisted the suit Besides raising the preliminary objection, it was stated that the telegram was delivered late because the place of destination was wrongly described in the telegram. The trial Court decreed the suit for Rs. 150 holding the officials of Union of India negligent The District Judge in the appeal filed by the Union of India, set aside the findings of the trial Court and dismissed the suit. 4. The trial Court decreed the suit for Rs. 150 holding the officials of Union of India negligent The District Judge in the appeal filed by the Union of India, set aside the findings of the trial Court and dismissed the suit. 4. I have heard the learned Counsel for the parties and gone through the record, Mr. Bhupinder Gupta, learned Counsel for Sh Devinder Bansal, has vehemently argued that the District Judge had gravely erred in interpreting section 9 of the Telegraph Act. The District Judge had held that under section 9 of the Telegraph Act, the Government had been given immunity for the negligent acts of its officials/officers: Section 9 of the Act reads as under : — "The Government shall not be responsible for any loss or damage which may occur in consequence of any telegraph officer failing in his duty with respect, to the receipt, transmission or delivery of any message, and no such officer shall be responsible for any such loss or damage, unless he causes the same negligently, mauliciously or fradulently." 5. A mere reading of this section shows that the word "and" has been used conjunctively and the word unless" governs the entire section If it is so, the correct import of this section is that both the Government and its officer is liable for any loss or damage caused by such an officer who performs his duty with respect to receipt transmission or delivery of any message negligently, maliciously and fraudulently Simple failure in his duty by a telegraph officer does not involve libel action either against him or against the Government On the other hand, if the word "and" is used disjunctively and the word "unless" governs the later part of the section, that is, the word "officer only, there will be absolute protection to the Government from any claim of loss or damage caused by its officer who performs his duty negligently, maliciously and fraudulently with respect to receipt, transmission and delivery of message. This will be against the basic principles of law of Torts that a master is liable for the tortuous acts of his servant Obviously, this cannot be the purpose of the legislature in enacting section 9 of the Telegraph Act. 6. This will be against the basic principles of law of Torts that a master is liable for the tortuous acts of his servant Obviously, this cannot be the purpose of the legislature in enacting section 9 of the Telegraph Act. 6. It is settled legal position that the Government is liable for the tortious acts committed by its servants in discharge of statutory functions unless these are performed on the delegation of the sovereign powers of the State. In M/s. Kasturi Lal Ralia Ram Jain v. The State of Uttar Pradesh AIR 1965 Supreme Court 1039, the SC observed: — "…….If a tortious act is committed by a public servant and it gives rise to a claim for damages, the question to ask is : was the ortious act committed by the public servant in discharge of statutory functions which are referable to, and ultimately, based on, the delegation of the sovereign powers of the State to such public servant ? If the answer is in the affirmative, the action for damages for loss caused by such tortious act will not he. On the other hand, if the tortious act has been committed by a public servant in discharge of duties assigned to him not by virtue of the delegation of any sovereign power, an action for damages would lie. The act of the public servant committed by him during the course of his employment is, in this category of cases, an act of a servant who might have been employed by a private individual for the same purpose. This distinction which is clear and precise in law, is sometimes not borne in mind in discussing questions of States liability arising from tortious acts committed by public servants……..." 7. Now the question arises whether the activities of Telegraph Department are attributable to sovereign powers of the Government, The answer is in the negative. The Telegraph Department is run by the Ministry of Communications in the Government of India on commercial principle. In Government of India by Secy, to the Government of India Post and Telegraphs Dept New Delhi and another v. Jeevraj Alva, minor by next find and father Dr. The Telegraph Department is run by the Ministry of Communications in the Government of India on commercial principle. In Government of India by Secy, to the Government of India Post and Telegraphs Dept New Delhi and another v. Jeevraj Alva, minor by next find and father Dr. Nagappa Aha and others, AIR 1970 Mys 13, a Division Bench of the Mysore High Court considering the question whether the activities of the postal department are in the exercise of sovereign powers observed ;- “…….The Departments of Posts and Telegraphs and Railways are under one Ministry in the Government of India. The Members of the public for making use of the postal services have to pay for the same The Postal Department is worked on commercial principles If the telegraph service is a commercial activity not attributable to sovereign powers of the Government, we fail to see how the operation of Postal services can be considered as exercise of sovereign functions In our opinion, the Postal Department is a commercial-cum-public utility Department of the Government of India and it by no means constitutes a sovereign function of the State " Viewing from this angle also, the only correct interpretation of section of the Telegraph Act is as given hereinabove. 8. Though the findings of the District Judge that there was no negligence on the part of the Officers of the Telegraph department in the present case are findings of fact, yet. I am inclined to interfere with these findings for the reason that these are not based on the evidence on record but on the assumption that the wrong address given in the telegram caused delay in its delivery. 9. Before examining the evidence, I would refer to the Telegraph Rules. Rule 88 of the Post and Telegraph Manual provides that it is the duty of the counter clerk to scrutinise the message tendered for transmission and if any word in it is illegible, it is his duty to bring it to the notice of the senior Telegraph official on duty. It further provides that if the message is irregular or incomplete and not tendered by the sender himself, it should be returned. Another Rule 33 of the Manual contemplates that the name of the addressee and the name of telegraph office of destination should be given in every inland telegram. It further provides that if the message is irregular or incomplete and not tendered by the sender himself, it should be returned. Another Rule 33 of the Manual contemplates that the name of the addressee and the name of telegraph office of destination should be given in every inland telegram. The telegraph office of destination should be out of the list of telegraph offices published in the Telegraph Guide Volume 2, Rule 38 further ensuses that if the name of the telegraph office of destination is not in conformity with the list published, the telegram should not be accepted at the office where it is presented. From these rules, it is clear that a statutory duty is cast upon a counter clerk to whom the telegram is presented for transmission to ensure that complete and correct addressee of the addressee as well as correct name of the telegraph office of destination is given by the sender at the time of the presentation of the telegram. If the conditions given in these rules are not fulfilled by the sender, he can refuse to accept the telegram for transmission. 10. In the present case, it is admitted that the telegram was accepted by the Counter Clerk of telegraph office at Jaipur on 26-1 (-1977. The place of destination stated in the telegram was Kardaghat in Solan District Himachal Pradesh From the perusal of the original telegram Ex D-A, it is clear that the words "District and H. P." were scored off by the Counter Clerk. It is also admitted in the written statement that the telegram was received at Solan telegraph office on 27-11-1977 at 9. 15 a. m. but it was sent to Sh. Devinder Bansal at Kandaghat by post on 28-11-1977 which reached him on 29-11-1977. Apparently, there is no Kardaghat in District Solan and the place Kandaghat is its important subdivision. Had the officials of the telegraph office Solan, been vigilant of their statutory duty, they would have delivered the telegram to Sh. Devioder Bansal at Kandaghat without any delay as the message was urgent What they had done ultimately, they could do in the beginning Moreover, as stated in Ex P-F by the Superintendent, Telegraph Traffic, Himachal Division at Dharamshala, the Department itself found that there was delay in delivering the telegram after holding a proper enquiry. Devioder Bansal at Kandaghat without any delay as the message was urgent What they had done ultimately, they could do in the beginning Moreover, as stated in Ex P-F by the Superintendent, Telegraph Traffic, Himachal Division at Dharamshala, the Department itself found that there was delay in delivering the telegram after holding a proper enquiry. In this communication, the Superintendent, Telegraph Traffic, had further informed the petitioner that the Superintendent of Post Offices, Solan, was directed to take necessary action against the official responsible for "unimaginative handling" of his telegram so that the officials might be careful in future. It was after the filing of the present suit that the Department changed its stand and pleaded not guilty. 11. Sh. Joginder Pal, Superintendent, Telegraph Traffic, Dharamshala (PW-1) and Sh. Liaquat AH Khan, Superintendent Post Offices, Solan (PW-2) have not only admitted the material facts of the present case but have also admitted the statutory duties cast upon the telegraph officials as provided under the Telegraph Rules which are stated hereinabove. It is only when Sh. Joginder Pal was examined as DW-1 that he has stated that the delay in the present case was caused due to the wrong address given by the sender. 12. After considering the oral and documentary evidence on record, I have no hesitation to hold that the officials of the telegraph office at Solan were negligent in the delivery of the telegram in question to Sh. Devinder Bansal which had caused him not only great tension and harassment but also expenditure. The trial Court had awarded Rs. 150 as damages as far back as on 31-7-1978. It will be in the interest of justice and fair place that it is enhanced to Rs 500 as during these thirteen years the value of the rupee has considerably gone down. 13. Sh. R. K Sharma appearing on behalf of the Union of India and others has raised an objection that the suit of Sh Devinder Bansal was bad for non-joinder of necessary parties, that is, the officials who were responsible for delayed delivery of the telegram Admittedly, no such objection was taken before the Courts below. The objection was only of mis-joinder of the parties on the ground that there was no office or post of defendant No. 2 (Post Master General, Government of India, New Delhi) and the Secretary Post and Telegraph. The objection was only of mis-joinder of the parties on the ground that there was no office or post of defendant No. 2 (Post Master General, Government of India, New Delhi) and the Secretary Post and Telegraph. Therefore, there is no substance in this objection and it is rejected. (See : Lakhi Prasad v. Murltdhar AIR 1973 Pat 250 followed in Smt. Ramsurat Devi v Smt Satraji Kwr and other. AIR. 1975 Pat 168 and Jamuna Beharani etc. v. Patwala Polayya Desibehera AIR 1977 Ori 119). 14. In the result, the appeal succeeds and the decree and judgment dated 22-9-1980 of District Judge, Solan Division at Solan, is set aside. The suit of Sh. Devinder Bansal is decreed for Rs. 500 as damages with costs throughout. Appeal allowed.