R.S.A.No. 1673 of 2008(O&M) {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1673 of 2008(O&M)
Date of Decision:July 31, 2009
Devender Kumar Pal
---Appellant
versus
State of Haryana and others
---Respondents
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr.Yogesh Chaudhary,Advocate,
for the appellant
***
SABINA J.
Plaintiff – Devender Kumar Pal had filed a suit for declaration
with consequential relief of mandatory injunction. Civil Judge ( Junior
Division), Karnal vide judgment and decree dated 27.11.2006 dismissed
the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an
appeal and the same was dismissed by Additional District Judge (Fast Track
Court), Karnal vide judgment and decree dated 7.11.2007. Hence, the
present appeal.
The facts of the case as noticed by the learned Additional
District Judge(Fast Track Court), in paras 2 to 4 of its judgment read as
under:-
R.S.A.No. 1673 of 2008(O&M) {2}
“The facts giving rise to the present appeal are that the
appellant-plaintiff filed a suit for declaration with
consequential relief of permanent injunction to the effect that
the order dated 23.1.1992 passed by defendant No. 2 and the
endorsement No. 7/11/84-ENF-5/4239-41 dated 26.3.1996
issued by defendant No. 2, order dated 14.2.1997 passed by
the Financial Commissioner and Secretary Co-operative
Department, Haryana Chandigarh and endorsement No. 478-C-
497/4062 dated 26.2.97 issued by defendant No. 2 are illegal,
void, arbitrary, nonest, void, ab-initio, mala fide, against the
principle of natural justice and not binding upon the legal
rights of the plaintiff and further a decree for declaration to the
effect that the plaintiff be deemed to be in service from the date
of joining in the year 1964 till 30.6.97, the date of retirement on
superannuation and the plaintiff is entitled to re-fixation of his
pay and other service benefits along with arrears of pay with
interest and a consequential relief of mandatory injunction
directing the defendants to take the plaintiff in service back
from the date when he was illegally and unlawfully removed
from service and re-fix the pay of the plaintiff and
consequential benefits of service with arrears of pay along with
interest @ 24% per annum from the due date till the date of
realization of the amount. It has been alleged that the plaintiff
was appointed by the then State of Punjab in the year 1964
through Subordinate Services Selection Board, Punjab.
Initially the plaintiff was posted as Industrial Sub Inspector
R.S.A.No. 1673 of 2008(O&M) {3}
Handloom Co-operative Societies at Ambala. In the year 1984
the services of the plaintiff were transferred at Kurukshetra and
he was posted as Sub Inspector Co-operative Societies (M/s) at
Kurukshetra vide order dated 8.2.1984 against the vacant post.
The plaintiff had hardly worked on the said post for about
seven months at Kurukshetra, he was placed under suspension
vide order dated 10.9.84 by the Defendant No. 3 Shri Sagta
Ram, the then Deputy Registrar, Co-operative Societies,
Kurukshetra. The plaintiff submitted a detailed representation
to the higher authorities against the illegal and unlawful act of
the defendant No. 3 at Kurukshetra and the said complaint of
the plaintiff came to the knowledge of defendant No. 3 who got
prejudice against the plaintiff and started causing harassment
and with a motive to take revenge of the complaint of the
plaintiff against him. The plaintiff received a letter dated
29.10.1984 from defendant No. 2 and he was asked to verify
the contents of the complaint and then accordingly the plaintiff
submitted an affidavit duly attested in support of the
allegations levelled in the said complaint by the plaintiff
against the defendant No. 3. It has been alleged that the
plaintiff was getting salary of Rs. 200/- less per month since
1.4.1976, which caused financial harassment and mental torture
due to the illegal and unlawful act of the defendant No. 3. The
plaintiff received a memo No. 5447 dated 17.12.1984 under
Rule 7 of Punjab Civil Services Punishment and Appeal Rules,
1952 along with the statement of allegations. It has been
R.S.A.No. 1673 of 2008(O&M) {4}
further alleged that the charge sheet itself is illegal and is liable
to be cancelled on the grounds that it was issued under Rule 7
of the Punjab Civil Services Punishment and appeal Rules,
1952, but at that time the punishment and Appeal Rules, 1952
were repelled by the Gazette notification of the government.
The charge sheet was issued by the defendant No. 3 without
application of mind and without considering the status of the
plaintiff in the office. Earlier also the defendant No. 3
suspended the plaintiff on 16.7.1982 and during that period
also the plaintiff was not given subsistence allowance during
the period he remained under suspension and thus the family of
the plaintiff put at the stage of starvation due to illegal and
unlawful act of the defendant No. 3. The plaintiff was
astonished to see the letter dated 20.7.1985 issued by the
defendant No. 3 whereby a show cause notice was given to him
proposing the penalty of removal from service. The plaintiff
submitted a detailed reply to the show cause notice on
11.8.1985 and further requested the defendants No. 1 and 2 to
release the subsistence allowance for the period during which
he remained under suspension. The subsistence allowance was
paid to the plaintiff for the period 9.84 to 4.85 vide letter No.
2415 dated 27.6.1985. The plaintiff vide representation dated
27.6.86 requested the defendants to give him personal hearing
and the defendant No. 2 gave a personal hearing to the plaintiff
on 25.8.86 vide his letter dated 7.8.86. However, the plaintiff
was further surprised to see letter dated 25.9.91 whereby a
R.S.A.No. 1673 of 2008(O&M) {5}
show cause notice was served upon him proposing the
punishment of removal from service of the plaintiff.
It has been further alleged that the appeal in an
other criminal case against the plaintiff was decided by the
learned Addl. Sessions Judge, Kurukshetra on 5.7.1992 and the
plaintiff was acquitted of the Criminal Charge. This fact was
brought to the notice of the appellate authority by the plaintiff
but was not considered. It has been alleged that the appeal was
rejected by Shri S.K.Miglani, Financial Commissioner and
Secretary Co-operative Department Haryana in an arbitrary
manner since the appellate authority itself was not in a position
to decide the matter on merits at that time because he was upset
due to his family circumstances. The defendants also did not
consider the length of service of the plaintiff since 1964 to
1996 i.e. 32 years as a good career and honest person in
Government Service. The plaintiff against submitted a
representation to the Financial Commissioner to and Secretary
Co-operative Department Haryana Chandigarh who issued
letter dated 14.2.1997 clarifying the earlier order dated 6.3.96.
This order dated 14.2.1997 was issued by Smt. Rajni Rajdhan
I.A.S. Financial Commissioner and Secretary Co-operative
Department Haryana, Chandigarh. The plaintiff issued a legal
notice under Section 80 C.P.C. to the defendants on 25.9.2001
through registered post, but no reply was received, hence he left
with no other option but to file the suit.
The defendants appeared through counsel and filed
R.S.A.No. 1673 of 2008(O&M) {6}
joint written statement taking preliminary objections that the
suit is not maintainable in the present form and at that the suit
is time barred.
On merits it has been submitted that the plaintiff
had committed serious irregularities and was charge sheeted on
the charges of (a) Embezzlement of Rs. 1634/- from the funds
of Karnal Co-operative society (b) misuse of post ( c) willful
absence from duties (d) insubordination (e) Negligence in
performance of duties (f) To make direct correspondence to the
higher authorities which is violation of Government Servant
Conduct Rules and (g) disobedience. It has been alleged that
after thorough inquiry and giving personal hearing and full
opportunity to the plaintiff, all the allegations were found to
have been proved and hence the plaintiff was removed from
service, after observing all required formalities. It has been
alleged that the version of the plaintiff that he was getting less
salary of Rs. 200/- per month since 1.4.76 is wrong as the
period from 5.10.70 to 25.5.76 was not treated as a period spent
on duty for the purpose of pay, leave, pension, increment or any
other official purpose. It was submitted that at the time of
issuing charge sheet i.e. as on 17.12.1984, the defendant No. 3
was competent to issue charge sheet to the plaintiff and the case
of the plaintiff was thoroughly inquired into and decisions
were taken on merits by defendants No. 1 and 2 impartially,
after giving full opportunity to the plaintiff. It has been
alleged that the plaintiff was given many opportunities by the
R.S.A.No. 1673 of 2008(O&M) {7}
Inquiry Officer but the willfully did not participate in the
inquiry proceedings and the Inquiry Officer completed the
inquiry on the basis of the record. The appeal of the plaintiff
was rejected by the Financial Commissioner and Secretary to
Government of Haryana, Co-operative Department in a
judicious manner keeping in view the facts and circumstances
of the case and after giving opportunity to the plaintiff. It has
been alleged that the order of dismissal of the plaintiff dated
23.1.1992 issued on 23.7.1992 were sent to his place of posting
at Raipur Rani and not a Karnal. Further orders dated
26.3.1986 and 14.2.1997 were sent to the plaintiff c/o Shri
Sadhu Ram Postman, Head Post Office, Karnal because this
temporary address was available and these orders have also
been served on the plaintiff on the above temporary address.
Hence it was prayed that there was no ground to file the suit at
Karnal which is liable to be dismissed.”
On the pleadings of the parties, trial court framed the following
issues:-
“(1)Whether the order dated 23.1.92 passed by defendant No. 2
and order dated 14.2.1997 passed by Financial Commissioner
and Secretary are illegal, null and void and not binding on the
rights of the plaintiff? OPP
(2)Whether the plaintiff is entitled to be deemed to in service
from the date of joining in the year 1964 till 3-0.9.97, the
date of retirement on superannuation? OPP
(3)Whether the plaintiff is entitled to re-fixation of his pay and
R.S.A.No. 1673 of 2008(O&M) {8}other service benefits with interest 25% OPP
(4)Whether the suit is time barred? OPD
(5)Relief
After hearing learned counsel for the appellant, I am of the
opinion that the present appeal deserves to be dismissed.
Admittedly services of the plaintiff were dismissed on
23.1.1992. Plaintiff preferred an appeal and the same was rejected by the
Financial Commissioner and Secretary to Government Haryana,
Cooperation Department vide order dated 14.2.1997. However, plaintiff
filed a suit on 11.12.2001 beyond the period of limitation.
Hon’ble the Apex Court in the case of The State of Punjab
and others v. Gurdev Singh Ashok Kumar 1991(5) SLR 1 has held as
under:-
” 4. First of all, to say that the suit is not governed by the law
of Limitation runs afoul of our Limitation Act. The statute of
limitation was intended to provide a time limit for all suits
conceivable. Section 3 of the Limitation Act provides that a
suit, appeal or application instituted after the prescribed
“period of Limitation” must subject to the provisions of
Sections 4 to 24 be dismissed although limitation has not been
set up as a defence. Section 2 (J) defines the expression
“period of limitation” to mean the period of limitation
prescribed in the Schedule for suit, appeal of application.
Section 2 (J) also defines “prescribed period” to mean the
period of limitation computed in accordance with the
provisions of the Act. The Court’s function on the presentation
R.S.A.No. 1673 of 2008(O&M) {9}
of plaint is simply to examine whether, on the assumed facts,
the plaintiff is within time. The court has to find out “when the
right to sue” accrued to the plaintiff. If a suit is not covered
by any of the specific articles prescribing a period of limitation,
it must fall within the residuary article. The purpose of the
residuary article is to provide for cases which could not be
covered by any other provision in the Limitation Act. The
residuary article is applicable to every variety of suits not
otherwise provided for. Article 113 (corresponding to Article
120 of the Act 1908) is a residuary Article for cases not
covered by any other provisions in the Act. It prescribes a
period of three years when the right to sue accrues. Under
Article 120 it was six years which has been reduced to three
years under Article 113. According to the third column in
Article 113, time commences to run when the right to sue
accrues. The words ” right to sue” ordinarily mean the right to
seek relief by means of legal proceedings. Generally, the right
to sue accrues only when the cause of action arises, that is, the
right to prosecute to obtain relief by legal means. The suit
must be instituted when the right asserted in the suit is
infringed or when there is a clear and unequivocal threat to
infringe that right by the defendant against whom the suit is
instituted (see : (i) Mt. Bole v. Mt.Koklam and others(AIR
1930 P.C. 270) and (ii) Gannon Dunkerley and Co. v. The
Union of India (AIR 1970 S.C. 1433).
11. The Allahabad High Court in Jagdish Prasad
R.S.A.No. 1673 of 2008(O&M) {10}
Mathur and ors. vs. United Provinces Government (AIR 1956
All 114) has taken the view that a suit for declaration by a
dismissed employee on the ground that his dismissal is void, is
governed by Article 120 of the Limitation Act. A similar view
has been taken by Oudh Chief Court in Abdul Vakil vs.
Secretary of State and anr. (AIR 1943 Oudh 368). That in our
opinion is the correct view to be taken. A suit for declaration
that an order of dismissal or termination from service passed
against the plaintiff is wrongful, illegal or ultra vires is
governed by Article 113 of the Limitation Act. The decision to
the contrary taken by the Punjab & Haryana High Court in
these and other cases (State of Punjab v. Ajit Singh (1988(1)
SLR 96) and (ii) State of Punjab v. Ram Singh (1986(3) SLR
379) is not correct and stands overruled.”
In these circumstances, both the courts below had rightly held
that the suit of the plaintiff was time barred and had rightly dismissed the
same.
No substantial question of law arises in this appeal.
Accordingly, this appeal is dismissed.
(SABINA)
JUDGE
July 31, 2009
PARAMJIT