JUDGMENT
Navin Chandra Sharma, J.
1. While the Civil Judge, Bikaner by her decree dated March 31, 1971 declared that the order dated July 17, 1962 of the defendant No. 1 (Sarpanch, Gram Panchayat, Napasar) and any other terminating the services of the plaintiff as Secretary was void and ineffective and that the plaintiff continued to remain in service and further passed a decree in plaintiff’s favour for Rs. 5320/- on account of arrears of pay. but on the filing of Civil First Appeal No. 6 of 1971 by defendants Nos. 1 and 2, the District Judge. Bikaner by his decree dated February 11, 1975 reversed the decree of the Civil Judge in its entirety and dismissed the suit of Mahadeo plaintiff with costs throughout, leading the plaintiff to file the present second appeal in this Court.
2. Shorn of all unnecessary details, it is an undisputed fact that Mahadeo plaintiff was Secretary of Gram Panchayat, Napasrar on 15 6-1960 and that by order dt. 17-7-62 of the defendant No. 1, services of the plaintiff were terminated. The plaintiff made a representation to the defendant No.] and also filed an appeal against the order of termination of his service before the Panchayat Samiti, Bikaner. The Panchayat Samiti by its order dated 7-12 1962 set aside the order of termination of plaintiff’s service and after suspending the plaintiff, directed the defendants Nos. 1 and 2 to serve a proper charge-sheet upon the plaintiff and to pass appropriate order after affording to the plaintiff a full opportunity of being heard. The plaintiff filed a revision petition against the order of the Panchayat Samiti dated December 7, 1962. When the plaintiff’s revision petition was pending before the Collector, Bikaner the defendant No. 1, on behalf of Gram Panchayat, Napasar sent a charge-sheet to the plaintiff and required the plaintiff to submit his reply there to. On January 30, 1963 the plaintiff submitted an application to the defendant No. 1, where in he mentioned that his revision petition against the order of Panchayat Samiti dated December 7, 1962 was pending consideration before the Collector and, therefore, no further proceedings be taken in pursuance of the order of the Panchayat Samiti. But the defendant No. 1 paid no heed to the plaintiff’s representations dated July 20, 1962 and January 30, 1963 and behind the back of the plaintiff without giving any notice to him, he got his order dated July 17, 1962 of termination of plaintiff’s service approved from the Gram Panchayat, Napasar of which the plaintiff acquired knowledge on July 1, 1964 in the office of the Collector, Bikaner. The Collector, Bikaner by his order dated March 20, 1963 accepted the revision petition of the plaintiff and remanded the appeal to the Panchayat Samiti for re-hearing. The Panchayat Samiti, however, it was alleged wrongly dismissed the appeal of the plaintiff and held that order of termination of service of the plaintiff dated July 17, 1962 to be void. The plaintiff had, therefore, to file another revision application before the Collector. During the course of arguments of the second revision application before the Collector, it was represented on behalf of the defendants that the order dated July 17,’ 1962 of the defendant No. 1 had been approved by the Gram Panchayat, Napasar on February 28, 1963. On this representation alone, the Collector, Bikaner dismissed the revision. The plaintiff filed an appeal before the Revenue Appellate Authority which was dismissed on January 15, 1965 as not maintainable.
3. Out of ill-will and spite, the defendant No. 1 also launched prosecution against the plaintiff for the offence punishable under Section 409, 1PC but the plaintiff was acquitted of the charge by the Judicial Magistrate, Bikaner on July 3, 1965. On account of the acquittal, the plaintiff is entitled to re-instatement on the post of Secretary, Gram Panchayat Napasar and to get his salary and dearness allowance with effect from the defendants Nos. 1 and 2. The plaintiff sent a letter by registered post on March 3, 1966 to the defendant No. 1 and also a statutory notice on April 12 1966, but the defendants paid no heed to them. It was pleaded that the defendants Nos. 1 and 2 had no justification to terminate the services of the plaintiff and it was only the State of Rajasthan which could terminate his services as he had been originally appointed as Secretary of Napasar Municipality. According to the provisions contained in the Rajasthan Municipalities Act, 1959, it was only the State Government which was his appointing and dismissing authority. The action of the defendants Nos. 1 and 2 in terminating the services of the plaintiff was stated to be ultra vires and tainted with malafides. The plaintiff prayed for the following reliefs, namely:
[1] It be declared that the order of termination of plaintiff’s services passed by defendants No. 1 and 2 was ultra vires of their power tainted with malafides and void;
[2] The plaintiff be reinstated on the post of Secretary, Gram Panchayat, Napasar from the date of the termination of his services till he is transferred some where else;
[3] The plaintiff be awarded Rs. 8124/- as his salary and dearness allowance for the period 1-4-1962 to 31-7-1962 and also further emoluments; and
[4] Plaintiff be awarded costs of the suit.
4. The defendants No. 1 and 2 admitted that plaintiff’s services as Secretary, Gram Panchayat, Napasar were terminated. Filing of appeal and revision by the plaintiff was admitted. It was also stated that the plaintiff was served with a charge-sheet and since he did not submit reply to the charge-sheet the order of termination passed on July 17, 1962 was approved and the plaintiff had knowledge of it from the very date on which approval was made. It is admitted that the Panchayat Samiti, after remand of the appeal dismissed the same and revision and appeal filed by the plaintiff were also dismissed by the Collector and the Revenue Appellate Authority. Acquittal of the plaintiff by the Judicial Magistrate for the offence under Section 409, I.P.C. was admitted but it was denied that the plaintiff there by became entitled to reinstatement It was also denied that termination of the service of the plaintiff was ultra vires or tainted with malafides. It was asserted that the services of the plaintiff were lawfully and validly terminated after serving upon him a charge-sheet to which he did not care to reply. The notice served by the plaintiff/was stated to be invalid and the suit was also said to be barred by limitation.
5. The State of Rajasthan, which was impleaded as defendant No. 3 also filed a written statement. It was admitted that the plaintiff was initially appointed as Secretary, Napasar Municipality and subsequently as a con-sequence of the abolition of the Municipality and constitution of the Gram Panchayat in its place, the Gram Panchayat took the plaintiff as Secretary to it. It was, however, disputed that powers of appointment and dismissal of the plaintiff were vested in the State Government. As the order of the Gram Panchayat dated July 17, 1962 was upheld by Higher Authorities and was in accordance with law, the plaintiff was neither entitled to reinstatement and nor to recover any salary amount and dearness allowance.
6. The learned Civil Judge, Bikaner framed 18 issues and after trial of the suit, decreed it in plaintiff’s favour. The Civil Judge held that the plaintiff was not appointed by the former Bikaner State, but he was appointed by he Municipal Board, Napasar as its Secretary in the year 1949 under its resolution Ex A 1. The plaintiff continued to be the Secretary of the Municipal Board under the Rajasthan Town Municipality Act, 1951 and thereafter under the Rajasthan Municipalities Act, 1959 but at the same time the State Government did not become the disciplinary authority because the appointment of the plaintiff had not been approved by the State Government or the Chief Revenue Controlling Authority. Since the plaintiff was neither appointed by the State Government nor his appointment was approved by it could not be held that the power to remove him from service vested in the State Government. It was held that the Gram Panchayat Napasar was a successor local body of the Municipal Board ar,d the plaintiff was validly taker over as Secretary of this Gram Panchayat. The learned Civil Judge held that there was no evidence to show that any finding was given on the charges that were framed against him by the Gram Panchayat or that the plaintiff was informed that the disciplinary proceedings would continue against him despite the pendency of his revision petition before the Collector, Bikaner Even the termination order said to have been ratified on February 28 1963 was not communicated to the plaintiff and the existence of the same had also not been proved It was stated that it was necessary to give some finding on the charges before passing any order against the plaintiff & in absence of the same the termination order could not be upheld. The plaintiff was held entitled get Rs. 5320/- as arrears of his emoluments. As to the validity of the notice it was held that the defendants could not point out how the notice was not’ in accordance with law. The plaintiff’s suit was held to be within limitation Issue relating to jurisdiction was decided against the defendants It was held that the plaintiff was competent to file the suit. The State of Raj. was held to be unnecessary party in the suit. On the basis of these findings the Civil Judge decreed the suit in plaintiff’s favour and as against defendants Nos 1 and 2 as aforesaid.
7. Aggrieved by the decree passed by the Civil Judge defendant Nos. 1 and 2 filed Civil First Appeal No. 6 of 1971 before the District Judge Bikaner. Before proceedings further, it may be mentioned that on December 13, 1974, the plaintiff made an application for amendment of his plaint under Order 6, Rule 17 CPC By the proposed amendment, the plaintiff wanted to insert an additional para 6(a) and to amend the existing para 4 of the plaint by pleading that the order dated July 17, 1962 of the Sarpanch, Gram Panchayat could not be confirmed by the Gram Panchayat on February 28, 1963 and nor it had been confirmed and even it was got confirmed, still it was invalid and in-operative because the order dated July 17, 1962 was not in existence and had been set aside. It was also sought to be added that the order was also invalid as no notice to show cause was given to the plaintiff and further no enquiry was conducted. By a detailed order, the application for amendment moved by the plaintiff was rejected by the District Judge on February 11, 1975.
8. The learned District Judge also decided the appeal on its merits on the same day. Before the District Judge, Bikaner, it was strenuously contended on behalf of the defendants that what ever the Gram Panchayat or the Sarpanch did was in their official capacity and that they acted or, in any case, purported to act under the provisions of the Rajasthan Panchayat Act, 1953 and therefore, the plaintiff’s suit was barred by limitation under Section 79(2)(b) of the said Act as the suit had been instituted by the plaintiff much after the expiry of the period of six months. The learned District Judge also examined the question as to whether the order of termination of services dated February 28, 1963 was valid or invalid. After a lengthy discussion, the District Judge came to the conclusion that the action taken by the Gram Panchayat was in accordance with Rule 30 of the Rules and the plaintiff’s services were terminated after serving upon him the charge-sheet dated Feb. 28, 1963. Learned District Judge reversed the findings of the trial court on issues Nos. 6 and 9 framed in the suit and consequently, dismissed the Plaintiff’s suit both on the ground of limitation as well as on the ground that the order of termination of the plaintiff’s services was not an invalid one. The plaintiff has come in second appeal before this court.
9. Mr. Dinesh Maheshwari, learned Counsel appearing for the plaintiff-appellant, contended that the learned District Judge had illegally and unlawfully entertained Civil First Appeal No. 6 of 1971 presented before him by Shri Ram Kishan Dass Gupta, Advocate, who had no authority to act and appear on behalf of the Gram Panchayat. Napasar as according to the appellant, at the first instance the Gram Panchayat had passed a resolution Ex. A-3 dated April 7, 1971 to the effect that appeal against the judgment of the Civil fudge, Bikaner dated March 31,1971 should not be filed and secondly, even if it was accepted that the Gram Panchayat decided to file an appeal by passing a resolution, it had appointed Shri R.D. Goel, Advocate authorising him to act, appear and plead on its behalf. Shri. R.D. Goel, Advocate could not delegate his powers to Shri Ram Kishan Dass Gupta, Advocate and consequently there was no valid presentation of first appeal by the defendants. It was next contended that the District Judge wrongly rejected the amendment application which had been moved by the plaintiff to amend his plaint. The proposed amendment did not alter the cause of action and it was necessary to effectually and justly decide the dispute between the parties. Then it was argued that the findings of the learned District Judge that the suit was barred by limitation and that the termination of the services of the plaintiff was valid are erroneous and should be set aside.
10. Mr. Suresh Shrimali appearing on behalf of the respondents Nos. 1 & 2 supported the order of the District Judge rejecting the application for amendment of the plaintiff filed by the plaintiff before him Mr. Shrimali urged that the first appeal was validly presented before the District Judge, Bikaner. Lastly, he urged that findings of the District Judge on issues Nos. 6 and 9 are perfectly correct, the plaintiff’s services were validly terminated and the suit filed by him was barred by limitation.
11. I shall first deal with the contention of Mr. Dinesh Maheshwari put forward by him as regards the non-maintainability of Civil First Appeal No. 6 of 1971 at the instance of defendants’ Nos. 1 and 2 before the District Judge, Bikaner. The argument was advanced in this manner that in its meeting dated 7th April, 1971, Gram Panchayat, Napasar had resolved that no appeal was to be preferred against the judgment and decree of the Civil Judge, Bikaner dated 31st March, 1971 and, therefore, Civil First Appeal No. 6 of 1971 had been presented contrary to the decision of the Gram Panchayat Napasar. The next contention advanced in this connection was that Shri Ram Kishore Dass Gupta was not appointed counsel by the Gram Panchayat and as such he had no authority to present the appeal, and, therefore, the presentation of the appeal was invalid. The District Judge, Bikaner had recorded evidence on the application which had been filed on behalf of the plaintiff. These points were also raised before the District Judge on behalf of the plaintiff. The District Judge, Bikaner by a detailed order rejected the contention advanced by the plaintiff by his order dated 24th September 1974. Plaintiff’s version was that Bajrang Lai, Sarpanch of the Gram Panchayat, Napasar was admitted in Bikaner hospital on 7th April, 1974. During that period, the Panchayat had given a requisition for a meeting of the Gram Panchayat to the Up-Sarpanch Asha Ram Jhanwar who convened the meeting of the Gram Panchayat at 2 p.m. on 7th April, 1971 in the Panchayat Office and the meeting proceeded upto 5 pm. In that meeting it was resolved that first appeal may not be filed against the judgment and decree of the Civil Judge, Bikaner dated 31st March, 1971 by the Gram Panchayat. As against this, the version of the defendants Nos. 1 & 2 (who were appellants before the District Judge) was that the meeting of the Gram Panchayat was convened on 7th April, 1971 at 4 p m. and it proceeded upto 7 p.m. According to Bajrang Lal. he was admitted at the 5 PM Hospital, Bikaner. As the matter was urgent, so he hired a taxi and went to Napasar at 10 a.m. on 7th April, 1971 and reached there at 10.30 a.m. The attendance of the Panchas present at the meeting was recorded in the attendance register and the same was also signed by the Panchas. The proceedings Ex. 3 were produced in which decision for filing the first appeal was taken. A letter of the Collector Bikaner was also produced which was in reply to the letter of the Sarpanch dated 13th April, 1971 whereby sanction for appointment of counsel and for payment of fees to him according to the Rules was accorded. Section 21 of the Rajasthan Panchayat Act, 1953 deals with the transaction of its business by a Panchayat. Sub Section (2) of Section 21 provides that the Sarpanch shall hold the meeting of the Panchayat for the disposal of its business as often as may be necessary and at least once a fortnight at some place within the Panchayat circle. Sub-section (3) provides that the Sarpanch may when ever he thinks fit or when required in writing to do so by not less than 1/3 of the Panchas call a special meeting of the Panchayat within three days of such requisition. Sub-section (6) provides that at every meeting of the Panchayat, the Sarpanch and in his absence the Up-Sarpanch shall preside. When both are absent, the Panchayat shall choose a person from amongst themselves to proceed at such meeting A perusal of the above provisions contained in Section 21 of the Act would go to show that it is the Sarpanch who has to hold a meeting as often as may be necessary and whenever he thinks fit. One third of the Panchas can also make a requisition to the Sarpanch to convene the meeting and on receipt of the requisition in writing from not less than 1/3 of the Panchas, the Sarpanch has to requisition the meeting. In the instant case, admittedly the requisition, according to the plaintiff, had not been given by the Panchas to the Sarpanch but was given to the Up-Sarpanth Asha Ram Jhanwar and it was Asha Ram Jhanwar who is said to have conveyed the meeting at 2 p.m. on 7th April. 1971 in the Panchayat Office. I am of the opinion that the alleged requisition was not validly made as even according to the plaintiff the requisition was made to the Up-Sarpanch a ad not to the Sarpanch. The only right given to the Up-Sarpanch is to preside at the meeting of the Panchayat in absence of the Sarpanch. The Up-Sarpanch had not been given the right to hold meeting of the Panchayat for the transaction of its business or upon a requisition from 1/3 of the Panchas. Assuming that the meeting of the Panchayat could be convened by the Up-Sarpanch in the absence of the Sarpanch, the question arises whether the Sarpanch was absent? For that reliance is placed on behalf of the plaintiff that Bajranglal Sarpanch was admitted in 5 PM Hospital, Bikaner, and therefore, he was absent. It is a fact that Bajranglal was admitted in Bikaner hospital and had not formerly been discharged from the hospital upto April 8, 1971. How ever, it is very clear from the bed-head ticket of Bajranglal of the 5 PM Hospital Bikaner that he was admitted in Cottage Ward. Bajranglal was not suffering from any serious disease. The provisional diagnosis was a backache. His chest was normal and his pulse was also normal. The temperature chart also shows that Bajranglal was not suffering from fever through out the period he remained in the hospital. In such circumstances, when Bajranglal came to know that rival faction in the Panchayat was going to hold a meeting he left the hospital on April 7, 1971 in the morning. The distance between Bikaner and Napasar was not long. The medication had been prescribed to Bajranglal only upto March 29, 1971. His temperature was recorded only upto 5th April, 1971. It cannot, therefore, be said that Bajranglal could not come to Napasar on April 7, 1971. Bajranglal had come from Bikaner to Napasar by a taxi which was hired by him for Rs. 26/- and a receipt Ex. 4 was taken. There was nothing unusual in the taking of the receipt of taxi charges from Bajranglal because this amount was to be reimbursed by the Gram Panchayat and apart from that Bajranglal felt that a rival meeting had been arranged prejudicially to the interest of the Panchayat. An opportunity had been taken by the plaintiff at the time when Bajranglal was in the hospital and at a time when there was ample period of limitation available for filing the appeal. The presence of Bajranglal on April 7, 1971 finds support from the cash book entry Ex. 5, in which the payment of taxi charges in connection with the coming of Bajranglal from Bikaner to Napasar is recorded. The District Judge rightly held that Bajranglal came to Napasar from Bikaner in the morning of April 7, 1971 and it cannot be said that he was absent. The entry in the cash book Ex. 5 is in no way suspicious. The proceedings of the meeting held on April 7, 1971 under the Chairmanship of Bajranglal is Ex. 3 in which decision had been taken to file the appeal. The District Judge was right in holding that in the meeting of the Panchayat held on April 7, 1971 under the Chairmanship of Bajranglal, Sarpanch, a decision was taken to file the first appeal against the judgment and decree of the Civil Judge, Bikaner dated March 31, 1971.
12. I shall next deal with the arguments concerning the presentation of the appeal. It is true that in the meeting held on April 7, 1971, it was decided by the Panchayat to appoint Shri Raghuvar Dayal Goyal as an Advocate for the Panchayat to file the appeal and his remuneration was fixed at Rs. 500/- A letter was also sent to the Collector Bikaner by the Sarpanch about the approval for the filing of the appeal. The Collector Bikaner by the letter dated April 21,1971 (Ex. 6 on the file of the District Judge) accorded sanction for the appointment of the counsel and the payment of his fees. The ‘Vakalatnama’ was executed by Bajranglal Sarpanch and it was in favour of M/s Raghuvardayal Goyal. Ramkishan Gupta and Indu Bhusan Advocates. Although the name of Vipinchand was also there, but Vipinchand had not signed the Vakalatnama. Thus Bajranglal had appointed Raghuvar Dayal, Ramkishan Gupta and Indu Bhusan Goyal as Advocates on behalf of Sarpanch, Gram Panchayat Napasar and Gram Panchayat, Napasar. But the appeal was actually presented before the Munsarim of the Court of District Judge Bikaner by Shri Ramkishandas Gupta Advocate in whose favour Vakalatnama had been executed Since Ramkishandas Gupta had also been appointed as an Advocate alongwith Shri Raghuvar Dayal Goyal, the presentation of Civil First Appeal No. 6 of 1971 was quite a valid presentation. Ft is pertinent to note that the appeal was only filed by Gram Panchayat, Napasar but also by (he Sarpanch, Bajranglal. The plaintiff in his suit had impleaded both the Sarpanch, Gram Panchayat, Napasar as well as the Gram Panchayat, respectively as defendants Nos. 1 and 2. The Sarpanch had liberty to appoint any counsel when he had also filed an appeal. When two defendants filed an appeal, any one of the counsel could present the appeal. As a matter of fact, the District Judge was not concerned whether the Gram Panchayat had duly appointed Shri Ramkishan Gupta as its Advocate or not That Court was only concerned, whether a Vakalatnama duly signed in favour of Shri Ramkishan Gupta was filed along with the appeal or not. That had been done in Civil First Appeal No. 6 of 1971. Apart from that, the learned District Judge was also right in holding that Rule 3 of the Rules envisage that the Gram Panchayat was required to appoint a counsel by a resolution.lt did not place any restriction that the counsel so appointed cannot get any formal act performed by some one else on his behalf. Full compliance had been made of the provisions contained in Order 3, Rule 4, CPC and the first appeal presented by Shri Ramkishan Gupta Advocate on behalf of the defendant-appellant before the District Judge was a properly presented appeal.
13. I shall now come to the second contention of the learned Counsel for the appellant regarding rejection of the application for amendment of the plaint moved by the plaintiff before the District Judge, Bikaner, on December 13, 1974. In this connection, it may be mentioned that in para No. 4 of the plaint filed by the plaintiff, he had clearly mentioned that the Panchayat Samiti had set aside the order of termination of the services of the plaintiff dated July I 7, 1962 and after suspending the plaintiff, the defendants Nos. 1 and 2 was directed to, serve a charge-sheet upon the plaintiff and after giving to the plaintiff an opportunity of being heard, to decide the allegations against him. The plaintiff also mentioned that after this decision of the Panchayat Samiti, when the plaintiff’s revision was pending before the Collector, the defendants Nos. 1 and 2 served a charge-sheet to the plaintiff and required the latter to submit reply to the charge-sheet. It was also alleged that the defendants’ Nos. 1 and 2 did not pay any heed to the plaintiff’s applications dated July 20, 1962 and January 30, 1963 and behind his back and without giving him any notice, illegally got approved the service termination order from the Gram Panchayat and the plaintiff acquired its knowledge on July 1, 1964 in the office of the Collector, Bikaner. It was further mentioned in para 5 of the plaint that during the course of arguments in the revision before the Collector on July 1, 1964, it was represented on behalf of the defendants that the order of termination of the services of the plaintiff dated July 17, 1962 was, after enquiry, approved by the Gram Panchayat on February 28, 1963. The plaintiff then mentioned that his services were terminated without giving him opportunity to file a reply and without being heard In the suit, the plaintiff claimed for a declaration that the termination of his services by the order of defendants Nos. 1 and 2 was ultra vires, void and tainted with malafides and prayed for his reinstatement. It is clear from the above pleadings that the plaintiff himself stated that he had been served with a charge sheet after remand of the case by the Panchayat Samiti and that the Gram Panchayat got approved the termination order on February 28, 1963. In the relief clause the plaintiff Had not mentioned the date of the termination order which he was challenging in the suit. It cannot be said that the relief claimed in the suit was confined to the earlier order dated July 17, 1962. The relief was claimed with respect to the termination of his services. The defendants Nos. 1 & 2 in their written statement clearly stated that after remand of the case, charge-sheet was served on the plaintiff and since the plaintiff did not file any reply to the charge-sheet, the earlier termination order was maintained by the Gram Panchayat. Thus both the parties were alive to the fact about the termination order passed on February 28,1963 confirming the earlier order dated July 17, 1962 in view of the fact that the plaintiff did not submit any reply to the charge-sheet served upon him after remand of the case by the Panchayat Samiti. The Civil Judge, Bikaner in her judgment at page 7 considered the question about the validity of the termination Older dated February 28, 1963 as well. In the relief granted by the Civil Judge, Bikaner, she not only declared that the termination order dated July 17, 1962 was void, but she also declared that any other order terminating the plaintiff’s services was void. Thus not only the parties were alive to the subsequent order dated February 28, 1963 but they also adduced evidence in that respect and the Civil Judge gave finding and relief to the plaintiff in respect of the subsequent order as well. The District Judge, therefore, rightly rejected the application for amendment of the plaint filed by the plaintiff who simply wanted by the proposed amendments to have a second innings for him in the suit. That is not the object behind the provisions contained in Order 6, Rule 17, CPC.
14. I shall next come to the merits of this second appeal. The Civil Judge, Bikaner had held that the defendants had not produced the proceedings of the meeting of the Gram Panchayat in which the order dated February 28, 1963 was passed. She also held that the defendants had not been able to show that the termination order dated February 28, 1963, was communicated to the plaintiff. It was mentioned that no notice was issued to the plaintiff to appear before the Gram Panchayat on February 28,1963, and plaintiff’s presence was not entered in the proceedings of the meeting. She came to the conclusion that no order of termination was passed on February 28, 1963 The learned Civil Judge then proceeded to consider the position in the alternative. She observed that if for the sake of the argument, it was taken that the termination order dated 28-2-1963 had been passed, there was no evidence to show that any findings were given on the charges framed against the plaintiff or that the plaintiff was informed that the proceedings against him would continue. According to her, it was necessary to give some finding on the charges before passing any order against the plaintiff and in the absence of the same, the termination order dated February 28, 1963 could not be up held. So far as the learned District Judge, Bikaner, is concerned, he referred to Rule 30 of the Rajasthan Panchayat and Nyaya Panchayat General Rules, 1969 (here in after, for short “the Rules”) and stated that to the extent the principles of natural justice are embodied in the Rules, they have to be followed. If the principles of natural justice go beyond that or are contrary or in addition to what is contemplated under the statutory rules, then the principles of natural justice cannot be invoked. In the instant case, the charge-sheet was served on the plaintiff. He did not submit any reply to the charge-sheet. Rule 30 of the Rules did not contemplate an inquiry of the nature where in the charges are required to be first proved in the presence of the delinquent official. What Rule 30 contemplated was that a charge-sheet was to be served on the official and the official should be called upon to submit his explanation. After submitting the explanation if the employee so desired, he was to be given a personal hearing & if he so desired the evidence given by him or by his witnesses was to be recorded in writing, but, if he did not so desire, then on the basis of the explanation submitted by him, if any, the Panchayat could proceed to pass any order of punishment. In other words, the opportunity of personal hearing and production of evidence in defence had to be availed of by the employee. In the instant case, the plaintiff neither submitted any explanation to the charge-sheet, nor requested for any personal hearing or opportunity to produce evidence. It was not established that the plaintiff gave any application like requesting the Gram Panchayat to stay the disciplinary proceedings against him till the decision of the revision filed by him before the Collector, Bikaner. The Gram Panchayat was, therefore, justified to proceed against the plaintiff in his absence and the order of termination of his services passed on February 28, 1963 was in conformity with Rule 30 of the Rules and was valid. An argument was also advanced on behalf of the plaintiff that the first order of termination of his services passed on July 17, 1962 had ceased to exist because it had been set aside by the Panchayat Samiti and the same was incapable of being ratified by the termination order dated February 28, 1963 because a non-est order cannot be ratified. With regard to this argument, it was observed by the District Judge that the order dated February 28, 1963 had not been produced by the plaintiff and in the absence of that, the phraseology used in that order cannot be said with exactitude. The essence was that the plaintiff’s services were terminated on February 28, 1963 and it was in that manner that the earlier order of termination was upheld or maintained or confirmed. What was meant was that no change in the order of termination was made and the plaintiff’s services were terminated after serving upon him a charge sheet with effect from February 28, 1963. There was no violation of Rule 30 of the Rules and, therefore, the order of termination of services of the plaintiff was not invalid.
15. Before me, the learned Counsel for the plaintiff-appellant advanced the same arguments which he had advanced before the learned District Judge.
16. The Supreme Court in State of Orissa v. Dr. Bina Pani Dei observed that “If there is power to decide and determine to the prejudice of person, duty to act judicially is implicit in the exercise of such power.” The decision in A.K. Kraipak v. Union of India , is a historical decision in the branch of law relating to natural justice. It was stated in A.K. Kraipak’s case that the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. The aim of the rules of natural justice is to secure justice or to put negatively to prevent miscarriage of justice These rules can operate only, in areas covered by any law validly made. In other words, they do not supplant the law of the land but supplement it. Till very recently it was the opinion of the courts that unless the authority concerned, was required by the law under which it functioned.to act judicially, there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the inquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. The doctrine of natural justice concerns principally of two rules viz. no one shall be judge in his own cause and no decision shall be given against a party without affording him a reasonable hearing. Tucker L.J. emphasized in Russel v. Duke of Norfilk 1949 All England Reports 109 that “whatever standard of natural justice is adopted, one essential is that the person concerned, should have a reasonable opportunity of presenting his case. It would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules.
17. In Mainka Gandhi v. Union of India , the matter related to impounding of the pass port. It was observed that the|Pass-port Authority may proceed to impound the pass-port without giving any opportunity to the person concerned to be heard. But as soon as the order impounding the pass-port is made, an opportunity of hearing, remedial in aim should be given to him so that he may present his case and controvert that of the Pass-port Authority and point out why his pass-port should not be impounded and the order impounding be recalled This should not only be possible but also be appropriate because the reasons for impounding the passport are required to be supplied by the Pass-port Authority after the making of the order and the person affected would, therefore, be in a position to make a representation setting forth his case and plead for setting aside the action impounding his pass-port.
8. In Olga Tellis and Ors. v. Bombay Municipal Council , Chandra Chud, C.J., speaking for the Court and dealing with Section 314 of the Bombay Municipal Corporation Act, observed that while vesting in the Commissioner the power to act without notice, the legislature intended that the power should be exercised sparingly and in case of urgency which brook no delay. In all other cases, no departure from the audi alteram partem Rule (hear the other side) could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demanded the exclusion of the rule of justice by reason by diverse factors like time, place, apprehended danger and so on. The ordinary rule which “regulates the procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. His Lordship observed:
It may be true to say that, in the generality of cases, persons who have committed encroachment on pavements or other public properties may not have an effective answer to give. It is a notorious fact of contemporary life in metropolitan cities that no person in his senses would opt to live on pavement or in slum if any other choice was available to him. The proposition that no notice need be given of a proposed action because, there can possibly be no answer to it, is contrary to the well recognised understanding of the real import of the rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and continues one for the other. The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also, be seen to be done…. The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right concerns in the opportunity which it gives to the individuals against whom decisions taken by public authority operate, to participate in the process by which those decisions are made, an opportunity that expresses their dignity as persons…. Both the right to be heard from, and the right to be told why, are analytically distinct from the right to secure a different out-come these rights to inter-change express the elementary idea that to be a person rather than a thing, is at least to be consulted about what is done with one…. No better instrument has been devised for arriving at truth than to giving a person in jeopardy of notice of the case against him and the opportunity to meet it, nor has a better way been found for generating the feeling so important to a popular Government that justice has been done (Joint/Anti-facist Refugee Committee v. M.C. Grath 1950 (41) US 123. 171, 172.
To the same effect are the observations of the Supreme Court in S.L. Kapoor v. Jagmohan . Chinappa Reddy J. observed
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance’ of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. If it comes from a person who has denied justice that the person who has been denied justice is not prejudiced.
It may be stated that law on the question of applicability of the principle of natural justice has much developed since the decision of their Lordships of the Supreme Court in Union of India v. J.K. Sinha AIR 1971 SC 401, which was relied upon by the District Judge. In J.K. Sinha’s case it was observed that if a statutory provision can be read consistently with the principle of natural justice the Court should do so, but if a statutory provision either specifically or by necessary implication excludes the application of any rules of natural justice, then the court cannot ignore the mandate of the legislation or the statutory authority and read into the concerned provision the principles of natural justice. It was further stated that whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not, depends upon the express words of the provisions conferring the Power the nature of the power conferred, the parties for which it is conferred the effect of the exercise of that power. It may be stated that the trend of latter decisions that if an administrative, quasi-judicial or judicial power is exercised effecting the rights of a person, the principle of natural a justice will always apply excepting in cases of urgency or other cogent reasons. This right be excluded expressly or by implication by statutory provisions
18. So far as Rule 30 of the Rules is concerned, it is provided that before any disciplinary action is taken, the Panchayat shall frame a charge or charges against the employee and shall give him a copy of the same requiring him to submit within a specified time his explanation if any, relating thereto. The Panchayat has to take into consideration the explanation and it can require him to submit further explanation. Before any order of punishment other than censure or with-holding of not more than three incremental passed the employee, if he so desires, shall be given a personal hearing and the evidence if any, given by him or by his witnesses shall be recorded in writing. A right of appeal has been provided in Rule 31 to the employee against whom an order of imposition of any punishment under Rule 30 is passed and he can appeal to the Panchayat Samiti. A regional power the also been conferred upon the Collector by Rule 34. It is clear from the provisions contained in Rules 30 and 31 of the Rules that principles of natural justice are sufficiently incorporated in the Rules. The employee is informed of the charges against him. He is given an opportunity to submit his explanation to them. He can also claim personal hearing and the right to adduce evidence. Nothing else is the scope of natural justice. In the present case the plaintiff has himself admitted in para 4 of the plaint that the Gram Panchayat had served upon him a charge-sheet after the Panchayat Samiti had set aside the previous order of termination dated 17th July 1962 Ex A 9 is the letter sent by the Sarpanch to the plaintiff along with charge-sheet. The plaintiff was required to submit his explanation within two weeks of the receipt of the chargesheet. It was also mentioned that if the plaintiff wanted personal hearing or to produce evidence, he can do so. A provisional date i.e. 21st January, 1963 was also fixed. Admittedly the plaintiff did not submit any explanation to the chargesheet served upon him. He did not request for personal hearing or to adduce evidence. Clearly, therefore, the principles of natural justice were complied with and the plaintiff has to blame himself for not availing of the opportunity afforded by the Gram Panchayat to him to show cause or to explain the charges levelled against him.
19. Much emphasis was laid on the fact that the plaintiff had delivered the original of an application Ex.7 to Phoosa Ram, stating therein that he had filed a revision against the order of the Panchayat Samiti before the Collector and that he submitted an application for adjournment on 21st December, 1963 before the Sarpanch Gram Panchayat. It was requested that the proceedings in the inquiry may be stayed till the decision of the revision. It was also mentioned that reply will be filed, if necessary, after the decision of the revision and before that the plaintiff showed his inability to file reply. The learned District Judge has found as a fact that no such application like Ex.7 was submitted by the plaintiff to the Gram Panchayat.lt was also found that Bajrang Lal, Sarpanch was available on 30th January, 1963 but despite that the application was not submitted to the Sarpanch. It is stated to have been submitted to Poosa Ram who is related to the plaintiff. This finding of fact cannot be disturbed in second appeal and I also do not find any reason to disturb it. Apart from that, if the plaintiff wanted that the disciplinary proceedings started by the Gram Panchayat under Rule 30 of the Rules should be stayed till the decision of the revision filed by him before the Collector, Bikaner, he should have applied to the Collector, straightway and obtain a stay order. The Gram Panchayat was not bound to stay the disciplinary proceedings.
20. As to the contention that since the Panchayat Samiti had set aside (he earlier order of termination of service dated 17th July, 1962, that order had become non-est and could not be ratified by the Gram Panchayat on 28th February, 1963, suffice it to state that it was for the plaintiff to get produced the order dated 28th February, 1963 terminating his services and to show by best evidence that the order had any invalidity or illegality in it. The District Judge has rightly observed that there is controversy between the parties about the actual wordings used in the order of termination of service passed on 28th February, 1863 and the burden was on the plaintiff to establish the illegality which he has not gone.
21. Lastly, the learned Counsel for the plaintiff-appellant urged that the order of termination of service dated 28th February, 1963 was not communicated to the plaintiff. It may be mentioned in this connection that the plaintiff stated in para 4 of the plaint that he came to know of the order of termination of his services or of the approval of termination of services made on July 17, 1962 subsequently by the Gram Panchayat after the remand of the case by the Panchayat Samiti to it on 1st July, 1964 in the Court of the Collector, Bikaner where his revision was pending. In any event even if this version is believed, the plaintiff had acquired knowledge of the order on 1st July, 1964 and he could appeal to the Panchayat Samiti claiming exclusion of time on that ground. The District Judge was, therefore, right that plaintiff’s services were validly terminated by the Gram Panchayat. It may also be mentioned that the learned District Judge had also dismissed the suit of the plaintiff on the ground that it was barred by limitation under Section 79(2)(b) of the Act. This section reads as under:
Section 79: Suits, etc. against Panchayat-(1) No suit, prosecution or other legal proceedings, shall be maintainable against any Panchayat or (Nyaya Panchayat) or against any Sarpanch, Panch, (Chairman, Member) Officer or servant thereof or against any person acting under the direction of any such Panchayat (Nyaya Panchayat), Sarpanch, Panch, (Chairman, Member) Officer or servant in respect of anything lawfully and in good faith done under this Act or any rule or bye-law made thereunder.
(2) No suit against a Panchayat or a (Nyaya Panchayat or against a Sarpanch, Panch, (b) (Chairman, member), Officer or servant thereof or against any person acting under the direction of such Panchayat (Nyaya Panchdyat), Sarpanch, Panch, (Chairman, Member) Officer or servant for anything done or purporting to be done under this Act in its or his official capacity:
(a)….
(b) shall be commenced otherwise than within six months next after the accrual of the alleged cause of action.
22. The question is whether the plaintiff had filed the suit against the Gram Panchayat and the Sarpanch for anything done or purporting to be done under the Act in its or his official capacity. It is clear that under Rule 30 of the Rules, the Gram Panchayat can initiate disciplinary action against its employees and can award punishment of removal or dismissal. The action taken by the Gram Panchayat while terminating the services of the plaintiff was, therefore, clearly an action under the Act The suit filed by the plaintiff was, therefore, for a thing done by the Gram Panchayat and the Sarpanch under the Act in its or his official capacity once the suit falls under Section 79(2) of the Act, it could be commenced only upto six months next after the accrual of the alleged cause of action. Even if it is taken that the plaintiff came to know of the termination of his services on July 1, 1964 as pleaded by him in para 4 of the plaint, the present suit was instituted by the plaintiff on August 3, 1966, that is, sufficiently beyond six months of the accrual of the cause of action. The plaintiff’s suit was rightly held to be barred by limitation.
23. It may be observed that in the case of State of Punjab v. Amar Singh Harika the order of dismissal passed on June 3, 949 was actually communicated to the officer concerned on January 2/3 953. But before the said date the said officer had come to know on May 28 1951 about the dismissal order. This date was taken to be the date of communication. Shelat, J. in State of Punjab v. Khemi Ram in Paragraph 16 observed as under:
It will be seen that all the decisions cited before us it was the communication of the impugned order which was held to be essential and not its actual receipt by the officer concerned and such communication was held to be necessary because till the order is issued and actually sent out to the person concerned, the authority making such order would be in a position to change its mind and modify it if it thought fit. But once such order is sent out, it goes out of the control of such an authority, and, therefore, there would be no chance what so ever of its changing its mind or modifying it. In our view once an order is issued and is sent out to the concerned Government servant it must be held to have been communicated to him, no matter when he actually received it.
On his own admission the plaintiff came to know of the order on July 1 1964 and the suit was filed beyond six months of that date. The suit of the plaintiff was thus clearly barred by limitation. As to whether, the action of the Gram Panchayat Napasar about terminating the plaintiff’s services was an action under the Rajasthan Panchayat Act, 1963, the decision of their Lordship of the Supreme Court in M/s. Kamla Mills Ltd. v. State of Bombay provides a sufficient answer to it apart from the decision of their Lordships of the Supreme Court in Sitaram v. M.B. Kanpur (AlR 1958 SC 1036 & that of the Allahabad High Court in Darjahilal Nigam v. Kanpur Municipal Board . Consequently, even if it is assumed for a moment that the order of termination dated February 28, 1963 was in any way invalid, the suit of the plaintiff is clearly barred by limitation, and fails on that ground.
24. This second appeal has no force in it and it is hereby dismissed. How ever, in the circumstances of the case, I shall leave the parties to bear their own costs through-out