R.S.A.No. 3086 of 2007 {1}
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 3086 of 2007
Date of Decision:August 05 , 2009
Bhim Singh
---Appellant
versus
Haryana State and others
---Respondents
Coram: HON'BLE MRS. JUSTICE SABINA
***
Present: Mr. S.K.Yadav,Advocate,
for the appellant
***
SABINA J.
Plaintiff – Bhim Singh had filed a suit for declaration. Civil
Judge (Junior Division), Gurgaon, vide judgment and decree dated
5.5.2007 dismissed the suit of the plaintiff being time barred. Aggrieved by
the same, plaintiff preferred an appeal and the same was dismissed by
Additional District Judge, Gurgaon vide judgment and decree dated
27.8.2007. Hence, the present appeal.
The facts of the case as noticed by the learned Additional
District Judge, in paras 2 and 3 of its judgment read as under:-
“Brief facts of the present case are that the plaintiff/appellant
R.S.A.No. 3086 of 2007 {2}
filed a suit for declaration to the effect that the adverse remarks
communicated to the plaintiff by the defendant No. 2 vide letter
dated 7.8.1996 for the year 1995-96 are quite illegal, unlawful,
ultra vires, arbitrary and against the principle of natural justice,
equity and good conscience and are not binding on the plaintiff
on the grounds mentioned in the plaint and are liable to be
expunged and if during the pendency of the suit, the defendant
No. 3 chances to reject the representation, the same may kindly
be declared as illegal.
It is inter alia alleged that the defendant No. 2 vide
letter dated 7.8.1996 had communicated the following illegal
and unlawful adverse remarks to the plaintiff for the year 1995-
96:-
(i)Over all assessment : Average
(ii)Integrity : Doubtful
(iii)Adverse remarks : Does not take interest in
on the record his work.
and the above mentioned adverse remarks were quite hollow
being based on surmises and conjectures and there was no
reason and material in possession of the recording authority to
record such like adverse remarks and the adverse remarks were
against the well settled law of Hon’ble Punjab and Haryana
High court as laid down in RSJ 2002 Vol.II, pages 109 and 115
and Hon’ble Supreme Court of India as laid down in SLR 1997
Vol.II, page 311 in which it has been mentioned that the
recording authority must be fair and honest in the assessment of
R.S.A.No. 3086 of 2007 {3}
work and conduct of its employees and the remarks should be
recorded in a constructive manner and it was submitted that no
complaint was ever inquired into by the recording authority, no
explanation of the plaintiff was ever called for and the perusal
of the adverse remarks revealed beyond any shadow of doubt
that the recording authority has not given the passing reference
of the material on the basis of which such adverse remarks have
been recorded and in the absence of the same, the plaintiff was
deprived of to make any effective representation against these
remarks and the plaintiff being aggrieved of the adverse
remarks had made representation to defendant No. 3 within the
time in the year 1997 and the same had not been disposed of by
the defendant No. 3 and the delay in disposal of the same
under the well settled law makes the adverse remarks as nonest
and vitiated in the eyes of law and plaintiff requested the
defendants several time orally but the defendants did not pay
nay heed to his request. Hence, the present suit.
On notice, the defendants put in appearance and
filed their written statement and tool some preliminary
objections that the plaintiff has not locus standi and cause of
action to file the suit and the plaintiff has concealed the real
facts and has not come to the court with clean hands and the
suit is not maintainable in the present form and the plaintiff has
not availed the alternate remedy of appeal before the competent
appellate authority so the suit is liable to be dismissed and the
suit is hopelessly time barred. In reply on merits, the
R.S.A.No. 3086 of 2007 {4}
allegations were again controverted while submitting that the
adverse remarks were recorded on the basis of his work and
conduct during the period under report and since the work,
conduct and performance of the plaintiff was not found
satisfactory and up to the required norms and standard and the
plaintiff had committed many irregularities and mis-
appropriation during the year and so, the competent authority
had rightly recorded adverse remarks against the plaintiff and
the adverse remarks were conveyed to the plaintiff vide memo
No. 14704 dated 7.8.1996 under proper receipt and it was
denied that the adverse remarks were based on surmises and
conjectures and there was sufficient material against the
plaintiff and it was further submitted that the plaintiff
committed fraud, amounting to Rs. 128/- on 13.5.1995 which
was also recorded in his annual confidential report for the year
1995-96 and the case of fraud was proper and fair enquiry was
conducted by the competent authority and the plaintiff was
found guilty of the charges levelled against him and the
competent authority imposed the punishment of stoppage of
two increments without cumulative effect and suspension
period was restricted for the period 17.5.1995 to 21.8.1995 to
the emoluments already drawn by him vide memo No. 17110
dated 18.9.1997 and the plaintiff remained willful absent on
21.12.1995 and thus, 200 Kms were missed and thus, he has
caused loss to Government and in this case also fair and proper
enquiry was conducted and charges levelled against him were
R.S.A.No. 3086 of 2007 {5}
fully established by the Enquiry Officer and the competent
authority passed the order of censure of his services and
suspension period was also restricted to the subsistence
allowance vide memo No. 10862/ECC dated 29.6.1998 and the
aforesaid cases were noted specifically in the ACR which was
recorded as doubtful in view of the rules and instructions
applicable upon the plaintiff as per the settled law and it was
further submitted that the annual confidential report was rightly
recorded by the competent authority. While denying other
allegations, the dismissal of the suit was prayed for.”
On the pleadings of the parties, trial court framed the following
issues:-
“(1)Whether the adverse remarks communicated to the plaintiff
by defendant No. 2 vide his letter No. 14707 dated 7.8.1996 for
the year 1995-96 are quite illegal, unlawful, ultra vires ,
arbitrary, against the principle of natural justice, equity and
good conscience and not binding on the plaintiff on the grounds
mentioned in the plaint?OPP
(2)Whether plaintiff has no locus standi and cause of action to
file the present suit?OPD
(3)Whether the plaintiff has concealed the true and material
facts from the court? OPD
(4)Whether the suit is not6 maintainable? OPD
(5)Whether the suit is time barred?OPD
(6)Whether the plaintiff has not availed the alternate remedy
of Appeal before the competent appellate authority so the
R.S.A.No. 3086 of 2007 {6}suit is liable to be dismissed? OPD
(7)Relief.
After hearing learned counsel for the appellant, I am of the
opinion that no ground for interference by this Court is made out.
Plaintiff had filed a suit challenging the adverse remarks
communicated to him vide letter dated 7.8.1996 for the year 1995-96.
Plaintiff instituted the suit on 7.11.2005. Plaintiff could challenge the
adverse remarks communicated to him within a period of three years.
However, the suit was filed by the plaintiff after a long delay.
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
of plaint is simply to examine whether, on the assumed facts,
R.S.A.No. 3086 of 2007 {7}
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 Mathur and ors. vs. United Provinces Government (AIR
R.S.A.No. 3086 of 2007 {8}
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.”
Courts below had rightly held that the suit of the plaintiff was
time barred.
No substantial question of law arises in this appeal for
consideration. Accordingly, the appeal is dismissed.
(SABINA)
JUDGE
AUGUST 05, 2009
paramjit
R.S.A.No. 3086 of 2007 {9}