{"id":109425,"date":"2009-07-31T00:00:00","date_gmt":"2009-07-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/devender-kumar-pal-vs-state-of-haryana-and-others-on-31-july-2009"},"modified":"2017-07-12T15:32:30","modified_gmt":"2017-07-12T10:02:30","slug":"devender-kumar-pal-vs-state-of-haryana-and-others-on-31-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/devender-kumar-pal-vs-state-of-haryana-and-others-on-31-july-2009","title":{"rendered":"Devender Kumar Pal vs State Of Haryana And Others on 31 July, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Devender Kumar Pal vs State Of Haryana And Others on 31 July, 2009<\/div>\n
R.S.A.No. 1673 of 2008(O&M)                            {1}\n\n\n      In the High Court of Punjab and Haryana at Chandigarh\n\n\n                              R.S.A.No. 1673 of 2008(O&M)\n                              Date of Decision:July 31, 2009\n\n\n\nDevender Kumar Pal\n\n                                          ---Appellant\n\n\n                   versus\n\nState of Haryana and others\n\n\n                                          ---Respondents\n\nCoram:      HON'BLE MRS. JUSTICE SABINA\n\n                  ***\n<\/pre>\n
Present:    Mr.Yogesh Chaudhary,Advocate,\n            for the appellant\n\n                   ***\n\nSABINA J.\n\n<\/pre>\n
            Plaintiff – Devender Kumar Pal had filed a suit for declaration<\/p>\n
with consequential relief of mandatory injunction. Civil Judge ( Junior<\/p>\n
Division), Karnal vide judgment and decree dated 27.11.2006 dismissed<\/p>\n
the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an<\/p>\n
appeal and the same was dismissed by Additional District Judge (Fast Track<\/p>\n
Court), Karnal vide judgment and decree dated       7.11.2007. Hence, the<\/p>\n
present appeal.\n<\/p>\n
            The facts of the case as noticed by the learned Additional<\/p>\n
District Judge(Fast Track Court), in paras 2 to 4 of its judgment read as<\/p>\n
under:-\n<\/p>\n
 R.S.A.No. 1673 of 2008(O&M)                              {2}<\/p>\n
          “The facts giving rise to the present appeal are that the<\/p>\n
          appellant-plaintiff   filed   a   suit   for    declaration   with<\/p>\n
          consequential relief of permanent injunction to the effect that<\/p>\n
          the order dated 23.1.1992 passed by defendant No. 2 and the<\/p>\n
          endorsement No. 7\/11\/84-ENF-5\/4239-41 dated 26.3.1996<\/p>\n
          issued by defendant No. 2, order dated 14.2.1997 passed by<\/p>\n
          the Financial Commissioner and Secretary Co-operative<\/p>\n
          Department, Haryana Chandigarh and endorsement No. 478-C-<\/p>\n
          497\/4062 dated 26.2.97 issued by defendant No. 2 are illegal,<\/p>\n
          void, arbitrary, nonest, void, ab-initio, mala fide, against the<\/p>\n
          principle of natural justice and not binding upon the legal<\/p>\n
          rights of the plaintiff and further a decree for declaration to the<\/p>\n
          effect that the plaintiff be deemed to be in service from the date<\/p>\n
          of joining in the year 1964 till 30.6.97, the date of retirement on<\/p>\n
          superannuation and the plaintiff is entitled to re-fixation of his<\/p>\n
          pay and other service benefits along with arrears of pay with<\/p>\n
          interest and a consequential relief of mandatory        injunction<\/p>\n
          directing the defendants to take the plaintiff in service back<\/p>\n
          from the date when he was illegally and unlawfully removed<\/p>\n
          from service and re-fix the pay of the plaintiff and<\/p>\n
          consequential benefits of service with arrears of pay along with<\/p>\n
          interest @ 24% per annum from the due date till the date of<\/p>\n
          realization of the amount. It has been alleged that the plaintiff<\/p>\n
          was appointed by the then State of Punjab in the year 1964<\/p>\n
          through Subordinate Services Selection Board, Punjab.<\/p>\n
          Initially the plaintiff was posted as Industrial Sub Inspector
\n R.S.A.No. 1673 of 2008(O&M)                           {3}<\/p>\n
          Handloom Co-operative Societies at Ambala. In the year 1984<\/p>\n
          the services of the plaintiff were transferred at Kurukshetra and<\/p>\n
          he was posted as Sub Inspector Co-operative Societies (M\/s) at<\/p>\n
          Kurukshetra vide order dated 8.2.1984 against the vacant post.<\/p>\n
          The plaintiff had hardly worked on the said post for about<\/p>\n
          seven months at Kurukshetra, he was placed under suspension<\/p>\n
          vide order dated 10.9.84 by the Defendant No. 3 Shri Sagta<\/p>\n
          Ram, the then Deputy Registrar, Co-operative Societies,<\/p>\n
          Kurukshetra. The plaintiff submitted a detailed representation<\/p>\n
          to the higher authorities against the illegal and unlawful act of<\/p>\n
          the defendant No. 3 at Kurukshetra and the said complaint of<\/p>\n
          the plaintiff came to the knowledge of defendant No. 3 who got<\/p>\n
          prejudice against the plaintiff and started causing harassment<\/p>\n
          and with a motive to take revenge of the complaint of the<\/p>\n
          plaintiff against him.   The plaintiff received a letter dated<\/p>\n
          29.10.1984 from defendant No. 2 and he was asked to verify<\/p>\n
          the contents of the complaint and then accordingly the plaintiff<\/p>\n
          submitted an affidavit duly attested in support of the<\/p>\n
          allegations levelled in the said complaint by the plaintiff<\/p>\n
          against the defendant    No. 3. It has been alleged that the<\/p>\n
          plaintiff was getting salary of Rs. 200\/- less per month since<\/p>\n
          1.4.1976, which caused financial harassment and mental torture<\/p>\n
          due to the illegal and unlawful act of the defendant No. 3. The<\/p>\n
          plaintiff received a memo No. 5447 dated 17.12.1984 under<\/p>\n
          Rule 7 of Punjab Civil Services Punishment and Appeal Rules,<\/p>\n
          1952 along with the statement of allegations.       It has been
\n R.S.A.No. 1673 of 2008(O&M)                              {4}<\/p>\n
          further alleged that the charge sheet itself is illegal and is liable<\/p>\n
          to be cancelled on the grounds that it was issued under Rule 7<\/p>\n
          of the Punjab Civil Services Punishment and appeal Rules,<\/p>\n
          1952, but at that time the punishment and Appeal Rules, 1952<\/p>\n
          were repelled by the Gazette notification of the government.<\/p>\n
          The charge sheet was issued by the defendant No. 3 without<\/p>\n
          application of mind and without considering the status of the<\/p>\n
          plaintiff in the office.     Earlier also the defendant No. 3<\/p>\n
          suspended the plaintiff on 16.7.1982 and during that period<\/p>\n
          also the plaintiff was not given subsistence allowance during<\/p>\n
          the period he remained under suspension and thus the family of<\/p>\n
          the plaintiff put at the stage of starvation due to illegal and<\/p>\n
          unlawful act of the defendant No. 3.            The plaintiff was<\/p>\n
          astonished to see the letter dated 20.7.1985 issued by the<\/p>\n
          defendant No. 3 whereby a show cause notice was given to him<\/p>\n
          proposing the penalty of removal from service. The plaintiff<\/p>\n
          submitted a detailed reply to the show cause notice on<\/p>\n
          11.8.1985 and further requested the defendants No. 1 and 2 to<\/p>\n
          release the subsistence allowance for the period during which<\/p>\n
          he remained under suspension. The subsistence allowance was<\/p>\n
          paid to the plaintiff for the period 9.84 to 4.85 vide letter No.<\/p>\n
          2415 dated 27.6.1985. The plaintiff vide representation dated<\/p>\n
          27.6.86 requested the defendants to give him personal hearing<\/p>\n
          and the defendant No. 2 gave a personal hearing to the plaintiff<\/p>\n
          on 25.8.86 vide his letter dated 7.8.86. However, the plaintiff<\/p>\n
          was further surprised to see letter dated 25.9.91 whereby a
\n R.S.A.No. 1673 of 2008(O&M)                            {5}<\/p>\n
          show cause notice was served upon him proposing the<\/p>\n
          punishment of removal from service of the plaintiff.<\/p>\n
                       It has been further alleged that the appeal in an<\/p>\n
          other criminal case against the plaintiff was decided by the<\/p>\n
          learned Addl. Sessions Judge, Kurukshetra on 5.7.1992 and the<\/p>\n
          plaintiff was acquitted of the Criminal Charge. This fact was<\/p>\n
          brought to the notice of the appellate authority by the plaintiff<\/p>\n
          but was not considered. It has been alleged that the appeal was<\/p>\n
          rejected by Shri S.K.Miglani, Financial Commissioner and<\/p>\n
          Secretary Co-operative Department Haryana in an arbitrary<\/p>\n
          manner since the appellate authority itself was not in a position<\/p>\n
          to decide the matter on merits at that time because he was upset<\/p>\n
          due to his family circumstances. The defendants also did not<\/p>\n
          consider the length of service of the plaintiff since 1964 to<\/p>\n
          1996 i.e. 32 years as a good career and honest person in<\/p>\n
          Government Service.          The plaintiff against submitted a<\/p>\n
          representation to the Financial Commissioner to and Secretary<\/p>\n
          Co-operative Department Haryana Chandigarh who issued<\/p>\n
          letter dated 14.2.1997 clarifying the earlier order dated 6.3.96.<\/p>\n
          This order dated 14.2.1997 was issued by Smt. Rajni Rajdhan<\/p>\n
          I.A.S. Financial Commissioner and Secretary Co-operative<\/p>\n
          Department Haryana, Chandigarh. The plaintiff issued a legal<\/p>\n
          notice under Section 80 C.P.C. to the defendants on 25.9.2001<\/p>\n
          through registered post, but no reply was received, hence he left<\/p>\n
          with no other option but to file the suit.\n<\/p>\n
                       The defendants appeared through counsel and filed
\n R.S.A.No. 1673 of 2008(O&M)                            {6}<\/p>\n
          joint written statement taking preliminary objections that the<\/p>\n
          suit is not maintainable in the present form and at that the suit<\/p>\n
          is time barred.\n<\/p>\n
                       On merits it has been submitted that the plaintiff<\/p>\n
          had committed serious irregularities and was charge sheeted on<\/p>\n
          the charges of (a) Embezzlement of Rs. 1634\/- from the funds<\/p>\n
          of Karnal Co-operative society (b) misuse of post ( c) willful<\/p>\n
          absence from duties (d) insubordination (e) Negligence in<\/p>\n
          performance of duties (f) To make direct correspondence to the<\/p>\n
          higher authorities which is violation of Government Servant<\/p>\n
          Conduct Rules and (g) disobedience. It has been alleged that<\/p>\n
          after thorough inquiry and giving personal hearing and full<\/p>\n
          opportunity to the plaintiff, all the allegations were found to<\/p>\n
          have been proved and hence the plaintiff was removed from<\/p>\n
          service, after observing all required formalities. It has been<\/p>\n
          alleged that the version of the plaintiff that he was getting less<\/p>\n
          salary of Rs. 200\/- per month since 1.4.76 is wrong as the<\/p>\n
          period from 5.10.70 to 25.5.76 was not treated as a period spent<\/p>\n
          on duty for the purpose of pay, leave, pension, increment or any<\/p>\n
          other official purpose. It was submitted that at the time of<\/p>\n
          issuing charge sheet i.e. as on 17.12.1984, the defendant No. 3<\/p>\n
          was competent to issue charge sheet to the plaintiff and the case<\/p>\n
          of the plaintiff was thoroughly inquired into and decisions<\/p>\n
          were taken on merits by defendants No. 1 and 2 impartially,<\/p>\n
          after giving full opportunity to the plaintiff.      It has been<\/p>\n
          alleged that the plaintiff was given many opportunities by the
\n R.S.A.No. 1673 of 2008(O&M)                             {7}<\/p>\n
           Inquiry Officer but the willfully did not participate in the<\/p>\n
           inquiry proceedings and the Inquiry Officer completed the<\/p>\n
           inquiry on the basis of the record. The appeal of the plaintiff<\/p>\n
           was rejected by the Financial Commissioner and Secretary to<\/p>\n
           Government of Haryana, Co-operative Department in a<\/p>\n
           judicious manner keeping in view the facts and circumstances<\/p>\n
           of the case and after giving opportunity to the plaintiff. It has<\/p>\n
           been alleged that the order of dismissal of the plaintiff dated<\/p>\n
           23.1.1992 issued on 23.7.1992 were sent to his place of posting<\/p>\n
           at Raipur Rani and not a Karnal.           Further orders dated<\/p>\n
           26.3.1986 and 14.2.1997 were sent to the plaintiff c\/o Shri<\/p>\n
           Sadhu Ram Postman, Head Post Office, Karnal because this<\/p>\n
           temporary address was available and these orders have also<\/p>\n
           been served on the plaintiff on the above temporary address.<\/p>\n
           Hence it was prayed that there was no ground to file the suit at<\/p>\n
           Karnal which is liable to be dismissed.”\n<\/p>\n
           On the pleadings of the parties, trial court framed the following<\/p>\n
issues:-\n<\/p>\n
           “(1)Whether the order dated 23.1.92 passed by defendant No. 2<\/p>\n
           and order dated 14.2.1997 passed by Financial Commissioner<\/p>\n
           and Secretary are illegal, null and void and not binding on the<\/p>\n
           rights of the plaintiff? OPP<\/p>\n
           (2)Whether the plaintiff is entitled to be deemed to in service<\/p>\n
             from the date of joining in the year 1964 till 3-0.9.97, the<\/p>\n
             date of retirement on superannuation? OPP<\/p>\n
           (3)Whether the plaintiff is entitled to re-fixation of his pay and
\n R.S.A.No. 1673 of 2008(O&M)                               {8}<\/p>\n
               other service benefits with interest 25% OPP<\/p>\n
            (4)Whether the suit is time barred? OPD<\/p>\n
            (5)Relief<\/p>\n
            After hearing learned counsel for the appellant, I am of the<\/p>\n
opinion that the present appeal deserves to be dismissed.<\/p><\/blockquote>\n
            Admittedly services of the plaintiff          were dismissed on<\/p>\n
23.1.1992. Plaintiff preferred an appeal and the same was rejected by the<\/p>\n
Financial   Commissioner      and   Secretary    to   Government      Haryana,<\/p>\n
Cooperation Department vide order dated 14.2.1997. However, plaintiff<\/p>\n
filed a suit on 11.12.2001 beyond the period of limitation.<\/p>\n
            Hon’ble the Apex Court in the case of The State of Punjab<\/p>\n
and others v. Gurdev Singh Ashok Kumar<\/a> 1991(5) SLR 1 has held as<\/p>\n
under:-\n<\/p>\n
            ” 4.   First of all, to say that the suit is not governed by the law<\/p>\n
            of Limitation runs afoul of our Limitation Act. The statute of<\/p>\n
            limitation was intended to provide a time limit for all suits<\/p>\n
            conceivable. Section 3 of the Limitation Act provides that a<\/p>\n
            suit, appeal or application instituted after the prescribed<\/p>\n
            “period of Limitation” must subject to the provisions of<\/p>\n
            Sections 4 to 24 be dismissed although limitation has not been<\/p>\n
            set up as a defence.      Section 2 (J) defines the expression<\/p>\n
            “period of limitation” to mean the period of limitation<\/p>\n
            prescribed in the Schedule for suit, appeal of application.<\/p><\/blockquote>\n
            Section 2 (J) also defines “prescribed period” to mean the<\/p>\n
            period of limitation computed in accordance with the<\/p>\n
            provisions of the Act. The Court’s function on the presentation
\n R.S.A.No. 1673 of 2008(O&M)                             {9}<\/p>\n
          of plaint is simply to examine whether, on the assumed facts,<\/p>\n
          the plaintiff is within time. The court has to find out “when the<\/p>\n
          right to sue” accrued to the plaintiff. If a suit is not covered<\/p>\n
          by any of the specific articles prescribing a period of limitation,<\/p>\n
          it must fall within the residuary article. The purpose of the<\/p>\n
          residuary article is to provide for cases which could not be<\/p>\n
          covered by any other provision in the Limitation Act. The<\/p>\n
          residuary article is applicable to every variety of suits not<\/p>\n
          otherwise provided for. Article 113 (corresponding to Article<\/p>\n
          120 of the Act 1908) is a residuary Article for cases not<\/p>\n
          covered by any other provisions in the Act. It prescribes a<\/p>\n
          period of three years when the right to sue accrues.        Under<\/p>\n
          Article 120 it was six years which has been reduced to three<\/p>\n
          years under Article 113. According to the third column in<\/p>\n
          Article 113, time commences to run when the right to sue<\/p>\n
          accrues. The words ” right to sue” ordinarily mean the right to<\/p>\n
          seek relief by means of legal proceedings. Generally, the right<\/p>\n
          to sue accrues only when the cause of action arises, that is, the<\/p>\n
          right to prosecute to obtain relief by legal means. The suit<\/p>\n
          must be instituted when the right asserted in the suit is<\/p>\n
          infringed or when there is a clear and unequivocal threat to<\/p>\n
          infringe that right by the defendant against whom the suit is<\/p>\n
          instituted (see : (i) Mt. Bole v. Mt.Koklam and others(AIR<\/p>\n
          1930 P.C. 270) and (ii) Gannon Dunkerley and Co. v. The<\/p>\n
          Union of India (AIR<\/a> 1970 S.C. 1433).<\/p>\n
\n\n          11.          The Allahabad High       Court    in Jagdish Prasad\n R.S.A.No. 1673 of 2008(O&M)                              {10}\n\n\n<\/pre>\n
            Mathur and ors. vs. United Provinces Government (AIR 1956<\/p>\n
            All 114) has taken the view that a suit for declaration by a<\/p>\n
            dismissed employee on the ground that his dismissal is void, is<\/p>\n
            governed by Article 120 of the Limitation Act. A similar view<\/p>\n
            has been taken by Oudh Chief Court in Abdul Vakil vs.<\/p>\n
            Secretary of State and anr. (AIR 1943 Oudh 368). That in our<\/p>\n
            opinion is the correct view to be taken. A suit for declaration<\/p>\n
            that an order of dismissal or termination from service passed<\/p>\n
            against the plaintiff is wrongful, illegal or ultra vires     is<\/p>\n
            governed by Article 113 of the Limitation Act. The decision to<\/p>\n
            the contrary taken by the Punjab & Haryana High Court in<\/p>\n
            these and other cases (State of Punjab v. Ajit Singh<\/a> (1988(1)<\/p>\n
            SLR 96) and (ii) State of Punjab v. Ram Singh<\/a> (1986(3) SLR<\/p>\n
            379) is not correct and stands overruled.”\n<\/p>\n
            In these circumstances, both the courts below had rightly held<\/p>\n
that the suit of the plaintiff was time barred and had rightly dismissed the<\/p>\n
same.\n<\/p>\n
                No substantial question of law arises in this appeal.<\/p>\n
Accordingly, this appeal is dismissed.\n<\/p>\n<\/p>\n
                                                  (SABINA)
\n                                                    JUDGE<\/p>\n
July 31, 2009
\nPARAMJIT\n <\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-109425","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nDevender Kumar Pal vs State Of Haryana And Others on 31 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/devender-kumar-pal-vs-state-of-haryana-and-others-on-31-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Devender Kumar Pal vs State Of Haryana And Others on 31 July, 2009 - 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