JUDGMENT
V.K. Jhanji, J.
1. This is plaintiff’s second appeal Plaintiff was initially appointed as Gram Sewak on 16.4.1952 in the erstwhile State of Pepsu. He was promoted to the post of Social Education and Panchayat Officer on 8.9.1964. On 29.10.1971 on account of his arrest in case, FIR No. 23/71 Under Section 109, IPC, he was placed under suspension. On 27.12.1974, he was convicted Under Section 409 read with Section 109, IPC. As a result of conviction, he was sentenced to undergo rigorous imprisonment for a period of one year and further directed to pay fine. Vide order dated 24.5.1977 issued vide Endst. No. DFA-2-77/37805-7 dated 7.6.1977 the plaintiff was dismissed from service. Plaintiff challenged the order of dismissal by filing suit in May, 1988 on the ground of order being illegal, null and void, without jurisdiction and authority, penal in character, ultra-vires of principles of natural justice, against the service rules and regulations governing the service of the plaintiff. On contest, the trial Court decreed the suit and on appeal by the State, the order of the trial Court was set aside and in consequence thereof suit of the plaintiff was dismissed. Plaintiff has come in second appeal.
2. Mr. J.S. Wasu, Sr. Advocate, counsel for the appellant has contended that the order of the first appellate Court cannot be maintained because the order of dismissal against the appellant was passed only on the basis of conviction and not on the basis of conduct leading to his conviction. He has further contended that the order of dismissal was passed on 24.5.1977 but with effect from the date of his conviction, i.e. 27.12.1974. He contended that the order dismissing the appellant from service with retrospective effect is illegal. As regards the limitation, he contended that the appellant came to know about the order only in the year 1988 and the suit was filed within three years from the date of coming to know of the order and thus, finding of the first appellate Court in this regard cannot be sustained.
3. Having heard the learned counsel, I am of the view that there is no merit in the appeal. A reading of order of dismissal shows that the same has not been passed only on the basis of conviction in criminal case but has been passed on the basis of conduct of the appellant which led to his conviction. The relevant part of the order reads “Whereas Shri Kartar Singh, Special Education and Panchayat Officer (under suspension), Bhunerheri at Patiala has been convicted on a criminal charge Under Section 409 read with Section 109 of the Indian Penal Code. AND whereas it is considered that the conduct of the said Shri Kartar Singh, Social Education and Panchayat Officer (under suspension) which has led to his conviction is such as to render his further retention in the public service undesirable.”
4. Faced with this situation, counsel contended that the Punishing Authority while exercising powers under rule 13(i) of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 has not acted fairly and justly and has awarded the extreme penalty of dismissal from service, whereas the case of the petitioner was not one of dismissal. In support of this contention, reference was made to judgment of Supreme Court in Shankar Dass v. Union of India and Anr., AIR 1985, S.C. 772 and a Full Bench judgment of this Court in Om Parkash v. The Director Postal Services (Posts and Telegraphs Deptt.) Punjab Circle, Ambala and Ors., AIR 1973 P&H-1.
5. There is no dispute with the proposition that power to dismiss a person from service, on the ground of conduct which has led to his conviction on a criminal charge, has to be exercised fairly, justly and reasonably and the Authority competent to take disciplinary action has to consider all the circumstances of the case and then decide whether the conduct of the delinquent official which led to his conviction is such as to render his further retention in public service undesirable; if so, whether to dismiss him or to remove him from service or to compulsorily retire him; and if the said conduct of the official is not such which renders his further retention in service undesirable, whether the minor punishment, if any, should be inflicted on him. However, in the present case, the appellant while working as Social Education and Panchayat Officer was charged with embezzlement and this conduct led to his conviction. He was convicted for one year and also held liable to pay fine. On the basis of conduct of appellant which led to his conviction the competent Authority was satisfied that his further retention in service was not desirable. This Court cannot sit in appeal against the judgment of disciplinary Authority.
6. The second contention that order of dismissal could not have been passed with retrospective effect, has some merit. The learned Deputy Advocate General, Punjab could not cite any precedent at the Bar to show that order of dismissal can be passed with retrospective effect. Although the appellant was dismissed from service on 24.5.1977, but the order was passed with effect from the date of his conviction, i.e. 27.12.1974. The order of dismissal can take effect from the date it was passed and not with retrospective effect. However, despite there being merit in this contention, appellant is not entitled to any relief because the suit filed by him is clearly barred by time. As noticed, the order of dismissal came to be passed against the appellant on 24.5.1977, whereas the suit has been filed on 16.5.1988 The allegation of the appellant that he came to know of the order in the year 1988 has not been accepted by the first appellate Court. The first appellate Court has found that order P-3 was communicated to the plaintiff and in the ordinary course plaintiff must have received the order somewhere in the month of July, 1977 itself. This being a finding of fact cannot be interferred with in second appeal. The contention that if an act is void or ultra-vires it is enough for the Court to declare it and it need not be set aside, cannot be accepted in view of judgment of the Apex Court in The State of Punjab and Ors. v. Gurdev Singh and Anr., 1991(2) R.S.J.-541 wherein it has been held that 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. Article 113 prescribes a period of three years when the right to sue accrues. The right to sue accrues only when the cause of action arises, i.e. the right 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. In the instant case, the appellant was dismissed from service on 24.5.1977 and was precluded from attending the office. The appellant was not paid his salary from that date. It cannot be believed that the appellant came to know about the passing of order after 11 years.
7. Resultantly, this appeal shall stand dismissed. There shall be no order as to costs.