High Court Punjab-Haryana High Court

Devender Kumar Pal vs State Of Haryana And Others on 31 July, 2009

Punjab-Haryana High Court
Devender Kumar Pal vs State Of Haryana And Others on 31 July, 2009
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