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2020 DIGILAW 2263 (KAR)

Executive Engineer v. Govinda Reddy

2020-11-13

B.VEERAPPA, K.NATARAJAN

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JUDGMENT : B. VEERAPPA, J. This Regular First Appeal is filed by the plaintiff-Executive Engineer, No.4, Hemavathi Left Bank Canal, Turuvekere, against the judgment and decree dated 16.02.2013 made in O.S.No.48/2007 on the file of the Senior Civil Judge and JMFC, Tiptur whereby, the suit of the plaintiff filed for recovery of damages of Rs.84,16,284/- together with interest at the rate of 6% per annum came to be dismissed based on Preliminary Issue Nos.4 and 5 holding that the suit filed by the plaintiff is barred by limitation and the suit is not maintainable. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The facts in nutshell are that the appellant/plaintiff filed the suit for recovery of damages contending that the defendant/respondent is a retired Assistant Executive Engineer who had worked from March 96 to March 98 as Assistant Executive Engineer, at No.1, Hemavathi Channel, Enquiry Sub-Division, Hedagarahalli. During his tenure, he was entrusted with supervision of CC lining work, Tumkur Distributor Channel from 23 to 27 Kms. lane, but he did not discharge his duty promptly and there are lapses and deficient in the service on his part and has shown dereliction of duty. Due to the said act, the State Government has suffered a loss to the tune of Rs.84,16,284/. After issuing legal notice to the defendant, since the defendant gave untenable reply, the suit came to be filed for the relief sought for. 4. The defendant filed the written statement and denied all the plaint averments including deficiency or lapses on his part as alleged. He contended that he has discharged his duty not in his individual capacity rather in the official capacity as Assistant Executive Engineer as such, he has not committed any breach or caused loss to the State. The suit filed by the plaintiff is barred by limitation and the suit is not maintainable. He further contended that the deficiency as alleged is not due to the lapse on the part of the supervisor or in the work or the material supplied by the Contractor, but it is due to not maintaining the CC lining work. The suit filed by the plaintiff is barred by limitation and the suit is not maintainable. He further contended that the deficiency as alleged is not due to the lapse on the part of the supervisor or in the work or the material supplied by the Contractor, but it is due to not maintaining the CC lining work. He further contended that the suits filed against only a few Engineers leaving apart several Executive Engineers evidences the mala fide intention on the part of the plaintiff and denied that the Assistant Executive Engineer at No.1, Hemavathi Channel, Enquiry Sub-Division, Hedagarahalli and all the work done by him in official capacity was sanctioned by the Chief Engineer, Hemavathi Channel Zone, Tumkur, after calling for tender. The channel work has been done during 1986-87. Only a portion of the work was done during his tenure. The final bills were also accepted after fulfillment of all the obligations by the contractor as per the tender agreement. He further contended that during 1999, there was heavy rain fall in the canal area as such, the rain water rushed into the canal and formed cavities in the sides of the canal since the soil is a black cotton soil which will cause damages to the CC line and it is nothing but a natural calamity and called as act of God which cannot be controlled or curtailed in any canal work. It is further contended that the natural disaster is beyond control of any of the Engineers including the defendant. The defendant denied all the allegations made against him and sought to dismiss the suit. 5. Based on the aforesaid pleadings, the Trial Court framed the following issues for consideration: “(i) Whether the plaintiff proves that it is sustained loss to the tune of Rs.84,16,284/on account of dereliction of duty of defendant in cement concrete lining from 23rd to 27th K.m. of Hemavathi SubCanal? (ii) Whether the plaintiff proves that it is entitled for interest at the rate of 6% p.a.? (iii) Whether the defendant proves that alleged substandard work has not occurred during his period and the maintenance of canal work no way concerned to them? (iv) Whether the defendant proves that the suit is barred by law of limitation? (v) Whether the defendant proves that the suit is not maintainable in the present form? (iii) Whether the defendant proves that alleged substandard work has not occurred during his period and the maintenance of canal work no way concerned to them? (iv) Whether the defendant proves that the suit is barred by law of limitation? (v) Whether the defendant proves that the suit is not maintainable in the present form? (vi) Whether the plaintiff is entitled to the relief as sought for? (vii) What Order or Decree?” 6. The learned Civil Judge took issue Nos.4 and 5 as preliminary issues. Considering the pleadings, averments and after hearing both the parties as also keeping in view the provisions of Section 214(3) of the Karnataka Civil Services Rules, 1958 (for short ‘KCSRs’), the learned Civil Judge dismissed the suit holding that the suit filed by the plaintiff is barred by limitation and the suit filed against the defendant is not maintainable. Hence, the present Regular First Appeal by the State. 7. We have heard learned counsel for the parties. 8. Smt. Savitha, learned High Court Government Pleader appearing for the appellant/plaintiff contended with vehemence that the impugned judgment and decree passed by the learned Civil Judge dismissing the suit on the ground of maintainability and as barred by limitation cannot be sustainable and liable to be set aside. She contended that the plaintiff has clearly stated that the Vigilance Department has conducted enquiry and submitted report in respect of the substandard work in respect of the Distributor channel and notice issued against the defendant is within three years from the date of knowledge and filed the suit within the reasonable time from the date of cause of action arose and filed the suit on 26.07.2004 and 14.12.2006. Therefore, the suit is not barred by limitation. She further contended that the provisions of Rule 213 and 214 of KCSRs deals with the limitation to prosecute against the retired officials. The present suit is filed for recovery of damages and not for withholding the pensionary benefits of the defendant. The learned Civil Judge has held that the suit which is filed after a lapse of four years of retirement of the defendant is not maintainable. The said finding is erroneous and contrary to the material on record. The present suit is filed for recovery of damages and not for withholding the pensionary benefits of the defendant. The learned Civil Judge has held that the suit which is filed after a lapse of four years of retirement of the defendant is not maintainable. The said finding is erroneous and contrary to the material on record. She further contended that during the course of his initial duty, the defendant had made loss to the tune of Rs.84,16,284/to the State Government working as Assistant Executive Engineer, No.1, Hemavathi Channel, Enquiry Sub-Division, Hedagarahalli from 1996-98. Hence, she sought to allow the appeal. 9. Per contra, Sri Abhinay Y.T., learned counsel for the respondent justified the impugned judgment and decree passed by the learned Civil Judge and sought to contend that admittedly, the defendant retired from service on 13.05.2001 but the suit was filed on 17.04.2007 after the lapse of more than six years. Even to file a suit for recovery of damages, three years is the limitation period. The provisions of Rule 214(3) of KCSRs clearly depicts that no judicial proceedings can be instituted against a retired official after lapse of 4 years from the date of cause of action. He would contend that the learned Civil Judge is justified in dismissing the suit on the ground of maintainability in view of the dictum of this Court and the Hon’ble Apex Court time and again has held that absolutely there is no merit to interfere with the impugned judgment and decree passed by the learned Civil Judge dismissing the suit on the preliminary issue of maintainability and limitation. Therefore, he sought to dismiss the appeal. 10. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration is: “Whether the appellant/plaintiff has made out any case to interfere with the impugned judgment and decree passed by the Trial Court in dismissing the suit as barred by limitation and on the ground of maintainability in the facts and circumstances of the present case?” 11. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the entire material including the original records carefully. 12. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the entire material including the original records carefully. 12. It is the specific case of the plaintiff that the defendant had worked from 1996-98 as the Assistant Executive Engineer at No.1, Hemavathi Channel, Enquiry Sub-Division, Hedagarahalli and during his tenure, he was entrusted with supervision of CC lining work, Tumkur Distributor channel from 23 to 27 Kms. lane. Due to his lapse, the State has suffered loss to the tune of Rs.84,16,284/and legal notice was issued on 14.12.2006. The cause of action to file the suit arose on 26.07.2004 and 14.12.2006. It was the specific case of the defendant that he has discharged his duty efficiently and there is no lapse on his part. Due to natural calamities and heavy rain in the channel area, the rain water rushed into the channel and formed cavities on the sides of channels and since the soil of this area is a black cotton soil, it will cause damages to the CC line and not on account of any dereliction of his duty. He further contended that the alleged cause of action arose to the plaintiff to file the suit was from March 96 to 98 and he retired on 13.05.2001. The suit was filed on 17.04.2007 after the lapse of six years. Learned Civil Judge considering the material on record has dismissed the suit of the plaintiff on the ground of maintainability. 13. It is relevant to consider the provisions of Rule 214(3) of KCSRs which clearly depicts that “No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall be instituted in respect of cause of action which arose or in respect of an event which took place, more than four years before such institution.” Admittedly, in the present case, the event took place in the year 2003 and enquiry was initiated and report was submitted by the enquiry officer on 26.07.2004. The suit was filed by 17.04.2007, by that time, the defendant retired which was more than six years back. 14. The suit was filed by 17.04.2007, by that time, the defendant retired which was more than six years back. 14. Even assuming that the suit filed from the date of cause of action is within the time of limitation, the fact remains that Rule 55 of the Limitation Act, 1963 provides only three years to file a suit for recovery of money from the date of action. In the present case, the loss was suffered in the year 1999 and the defendant retired in 2001. The suit was filed in 2007. There is an inordinate delay in filing the suit and as on the date, the suit is hopelessly barred by limitation as rightly held by the learned Civil Judge. 15. The Hon’ble Apex Court in the case of State of U.P.– vs. Sri Krishna Pande reported in 1996 SC 1656 has held that the departmental enquiry or any other proceedings against the retired employees must be instituted within four years from the date of misconduct or alleged event of embezzlement by the delinquent employee. The said case is aptly applicable to the facts of the present case. 16. It is also not in dispute that there were four suits filed by the plaintiff in respect of other Assistant Executive Engineers and OS No.29/2007 filed against one Lakshmipathy and others for recovery of damages came to be dismissed on the ground of maintainability and limitation. That was the subject matter in RFA No.1244/2013 before the learned Single Judge. The learned Single Judge of this Court vide judgment dated 04.08.2016 dismissed the appeal confirming the judgment and decree passed by the learned Civil Judge dismissing the suit on the preliminary issues. The same has reached finality. 17. Learned High Court Government Pleader fairly submits that the State has not filed any Special Leave to Appeal (SLP) against the judgment and decree passed by this Court on 04.08.2016 in RFA No.1244/2013. When the State Government accepted the dictum of this Court made in the case against some other persons, in all fairness, the present appeal should not have been filed for name sake without there being any merit. When the State Government accepted the dictum of this Court made in the case against some other persons, in all fairness, the present appeal should not have been filed for name sake without there being any merit. Considering the entire material on record, we find no ground to interfere with the impugned judgment and decree passed by the learned Civil Judge in dismissing the suit of the plaintiff on preliminary issue Nos.4 and 5 holding that the suit filed by the plaintiff is barred by limitation and the same is not maintainable. 18. On re-appreciation of the entire material on record, it clearly depicts that the work is alleged to have been entrusted to the defendant in the year 1996-98, the defendant retired in the year 2001 and the suit filed on 17.04.2007 is hopelessly barred by limitation and is not maintainable. The impugned judgment and decree passed by the learned Civil Judge dismissing the suit is just and proper. The appellant/plaintiff has not made out any ground to interfere with the judgment and decree passed by the learned Civil Judge. 19. In view of the above, the issue raised in the present appeal has to be answered in the affirmative holding that the judgment and decree passed by the learned Civil Judge dismissing the suit of the plaintiff on the ground of maintainability and as barred by limitation is just and proper. The Regular First Appeal is devoid of merit. 20. Accordingly, the appeal is dismissed without any costs.