JUDGMENT
G.R. Majithia, J.
1. This Regular Second Appeal is directed against the judgment and decree of the first Appellate Court affirming on appeal those of the trial judge, whereby, the suit of the plaintiff for a declaration that the order as conveyed to him by Sub Divisional Officer (C), Hissar vide Endorsement No. 1957-58/ SDHR, dated February 24, 1969 was void, was dismissed.
2. The facts:-
The appellant (hereinafter referred to as the plaintiff) who was employed as a Patwari in the revenue department, retired from service on August 4, 1967 on attaining the age of superannuation. He was informed by Sub Divisional Officer (C), Hissar vide Endorsement No. 1957-58/SDHR, dated February 24, 1969 that since he had wilfully remained absent from duty from July 20, 1960 to January 4 1961 for more then six months, this period will be deemed to be break in service and he was not entitled to pension. The order was challenged in the civil suit on the ground that he was transferred from the consolidation department to Panniwala Mota circle on July 16, 1960 He was not allowed to join duty at his new place of posting. He was charge-sheeted and, after enquiry a warning was administered to him for remaining absent without leave The subsequent order by which the period during which he remained absent was treated as a break in service was without any notice to him. The respondent controverted the pleas made in the plaint.
3. From the pleadings of the parties, the following issues were framed :-
1. Whether the alleged break in service is bad for the reasons stated in para No. 4 of the plaint ? OPP
2. Whether the order dated 24-2-1969 is illegal, without jurisdiction and not binding upon the plaintiff ? If so to what effect ? OPP
3. Whether the suit is within limitation ? OPP
4. Whether the civil court at Sirsa has no jurisdiction to try this suit ? OPD
5. Whether the suit is not maintainable in the present form ? OPD
6. Whether the plaintiff is estopped from filing the suit ? OPD
7. Relief.
4. The trial judge found that the order dated April 4, 1968 Ex. D 2, vide which is; was directed that the period during which the plaintiff had remained absent from duty should be treated as a break in service and no pension be allowed to him, was passed without affording an opportunity of hearing to him. Issue No. 2 was held redundant in view of finding under issue No. 1. Issues No. 4, S and 6 were answered against the respondent/defendant and in favour of the plaintiff However, issue No. 3 was answered against the plaintiff and it was held that, the suit was beyond limitation. Before the first Appellate Court, the findings recorded by the trial judge under issues No. 1, 4, 5 and 6 were not assailed. Only the finding under issue No. 3 was challenged. The first Appellate Court concurred with the conclusion of the trial judge and held that the suit was beyond limitation. The plaintiff remained absent from duty from July 20, 1960′ to January 4, 1961. The charge-sheet was served upon him. An enquiry was held by Teasildar Sirsa. Deputy Commissioner, Hissar awarded tie following punishment :-
“Let him be warned and an entry be recorded in the amal nama.”
The plaintiff bad been awarded the punishment for wilfully remaining absent from duty. After his retirement, a letter was received from the Accountant General to the Deputy Commissioner, Hissar. This letter pertained to the grant of pension and gratuity to the plaintiff. In pars No. 3 of the letter, if, was pointed out that the plaintiff remained absent from duty from July 20, 1960 to January 4 1961 and the period has been treated as break in service. The official is not entitled to the benefit of past service Consequently, he loses all his claim of the service rendered prior to July 20, I960, On receipt of this letter, a note was nut that affidavit be obtained from the plaintiff and then the case be put up with the comments. On April 3, 1968, the Assistant Superintendent Revenue appended a note that affidavit of the plaintiff is not required as his absence stood proved from S.D. O’s letter No. 1951/ SDS/BC, dated March 25, 1960 and on April 3, 1963, the following note was appended :
“As has been reported above the Patwari does not deserve any sympathy for wilful absence. Therefore, it is ‘requested that the period of absence which is more than 6 months may be treated as break in service and no pension should be allowed to him.”
The Deputy Commissioner accepted the note The entite nothing is contained in Ex D 2. The plaintiff remained absent from duty and for that lapse punishment had already been awarded to him on April 25, 1961 by the Deputy Commissioner, Hissar. On receipt of the communication from the Accountant General, the case was processed in the office of the Deputy Commissioner, Hissar and it is that at this juncture that he ordered that the period of absence from duty be treated as break in service. The order was passed without affording an opportunity of hearing to the petitioner. Even if the period during which she plaintiff had remained absent from duty had to be treated as break in service, this could only be done after giving an opportunity of hearing to the plaintiff and it was all She more necessary when for the lapse he had already been punished. An employee cannot he punished twice over for the same lapse. As observed earlier, the Deputy Com- missioner had already directed that the plaintiff should be administered a warning for remaining absent from duty without leave and an entry to that effect be made in the Amalnama. There was absolutely no justification for the Deputy Commissioner to direct that the period for which the plaintiff had remained absent from duty be treated as a break in service after the expiry of more than 7 years. The order contained in Ex. D2 was passed in violation of the principles of natural justice and is also bad for the reason that for the same lapse an employee cannot be punished twice over. It is a settled proposition of law that an order passed in violation of principles of natural justice is a void order. Superannuation pension is not a bounty and is not given as a matter of grace It is a right to property and a government employee cannot be deprived of this right save by legislation which, too, have to satisfy the test, of Article 14 of the Constitution (see Kesar Chand v. State of Punjab and Ors., (1988-2) 94 P. L. R. 223 (F. B.). The plaintiff could not be deprived of his claim for pension.
5. The Appellate Court taking resort to the provisions of Article 58 of the Limitation Act held that the suit for declaration was beyond limitation. The Appellate Judge did not draw a distinction between void and voidable order. If the order was void the rigour of the provisions of Article 58 of the Limitation Act will not be attracted. I have already held in the earlier part of this judgment that the order; contained in Ex, D2 denying the claim of pension to the plaintiff is a void order. An order passed in breach of the rules of natural justice was totally invalid and, therefore, is of be legal existence, it was, therefore, not necessary for the plaintiff to have that order set aside by the Court (See in this connection Amrik Singh Constable v. State of Punjab, 1980 (2) S. L. R. 616) A just claim of a citizen cannot be denied on technical grounds. The State cannot defeat the claim of a citizen by taking the technical plea that the suit was beyond limitation. The decision under issue No. 3 is reversed. The appeal succeeds. The suit of the plaintiff is decreed. The judgments and decrees of the courts below act set aside and the order dated February 24, 190 of Sub Divisional Officer (C ), Hissar as conveyed to the plaintiff vide endorsement No. 1957-58/SDBR, Ex. P1 is quashed. The plaintiff is entitled to the declaration sought for. The respondent is directed to release the arrears of pension upto date under the rules with interest @ Rs. 12/- per cent annum from the date when the right to receive pension accrued till payment within three months from the date of receipt of this order.
