Punjab-Haryana High Court
State Of Punjab vs Mohinder Singh on 3 March, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
Regular Second Appeal No. 1116 of 1986 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Regular Second Appeal No. 1116 of 1986
Date of decision: 03.03.2010
State of Punjab ...Appellant
Versus
Mohinder Singh ...Respondent
CORAM: HON'BLE MR. JUSTICE RANJIT SINGH
Present: Ms. Ambika Luthra, AAG, Punjab
for the appellant.
Mr. S.S. Swaitch, Advocate
for the respondent.
*****
RANJIT SINGH J.
Respondent-plaintiff, employed as a Conductor, would get of the hook in this case only on account of lapse of time and on the ground that judgment impugned by the State of Punjab has been implemented directing his reinstatement. The conduct of the respondent-plaintiff would be such where apparently he would not deserve any relief but still, he would be able to enjoy the benefit of something which happened nearly 20 years ago.
The respondent-plaintiff had proceeded on sanctioned leave on 15.10.1975 while working as Conductor at Punjab Roadways, Jalandhar. He did not join back his duties on the due date and applied for extension. Respondent admits that he did not Regular Second Appeal No. 1116 of 1986 2 receive any intimation about extension of his leave or if it was sanctioned or not but being under a bona fide belief that his leave was duly sanctioned he continued to remain absent from duty. When the respondent-plaintiff returned to join his duty in early parts of 1978, he was not permitted to do so. At that stage he was apprised that his services were terminated vide order dated 17.06.1976. Respondent-plaintiff, accordingly, impugned this order on the ground that no inquiry was held to verify his absence and accordingly the order was illegal, arbitrary and biased. Respondent further claimed that as per Rule 3.25 of the Punjab Civil Service Rules, Volume I Part 1, he could claim leave of kind due and could remain on leave for 5 years.
The appellant resisted the suit on the plea that it was time barred. No notice was served under Section 80 CPC was another plea raised and so also in regard to locus to file the suit by saying that the respondent-plaintiff had abandoned his duty of his own accord. On merits, it was pleaded that the respondent-plaintiff had absented w.e.f. 15.10.1975 and never resumed his duties thereafter. It was also pleaded that the order dated 17.03.1976 was conveyed to him through registered post and received back undelivered with remark "Addressee left for German. Hence returned". It is accordingly pleaded that the respondent-plaintiff was not traceable and so the question of holding inquiry did not arise. It is also pointed out that the notices were got published in the newspapers like The Daily Tribune, Nawan Zamana, Hindi Milap and Ajit dated 10.12.1976 calling his explanation for willful absence and directing him to resume duties Regular Second Appeal No. 1116 of 1986 3 within 15 days. Thus the plea raised regarding violation of procedure while passing the order is contested. On the basis of pleading, the suit was tried on following issues:-
1. Whether the suit is barred by limitation?OPD.
2. Whether the notice under Section 80 C.P.C. served upon the defendant was not valid?OPD.
3. Whether the order dated 17.3.1976 passed by the General Manager, Punjab Roadways, Jalandhar, is illegal, against the rules and null and void etc?OPP.
4. Relief.
All the issues were decided in favour of the respondent- plaintiff by the trial Court, which was taken in appeal by the State. The main plea raised by the State was that the suit was filed on 06.07.1984 to impugn the order dated 17.03.1976 and this was barred by limitation and hence the suit was liable to be dismissed on this score alone. The First Appellate Court made reference to the case of State of Himachal Pradesh Versus Jai Dev Ram, 1984 Labour Industrial Cases, IC 1492, where it was observed that the suit for declaring that an order of dismissal/removal being in violation of Article 311 of the Constitution is not hit by bar of limitation. Even decision in the case of State of Madhya Pradesh versus Syed Qamarrali 1967 S.L.R. 228, was referred and relied upon to uphold this view. It was accordingly viewed that the trial Court had rightly decreed the suit as the respondent-plaintiff was found to have been dismissed from service without following the procedure as prescribed Regular Second Appeal No. 1116 of 1986 4 in Rule 8 of the Punjab Civil Service (Punishment and Appeal) Rules, 1970 but has also noticed that mere report that the respondent- plaintiff had left for foreign country would not be enough to show that the proper opportunity was afforded to the respondent-plaintiff before directing his dismissal from service. Reference is then made to the case of Puran Singh (Ex. Patwari of Irrigation Branch Vs. State of Punjab and others 1982 (2) S.L.R. 126, where it is observed that when a person refuses to accept show cause notice then the summary of allegation sent to him by registered post would not absolve the authority from holding an inquiry into the matter may be an ex-parte inquiry. Finding that no inquiry in this case was held and that the punishing authority had passed the impugned order, it was held that the order of the trial Court was not liable to be interfered with.
Learned State counsel would submit with much emphasis and with justification that the view that limitation would not be a bar to challenge the order which is void can no more be pressed into service, in view of the subsequent judgment rendered by the Hon'ble Supreme Court in the case of State of Punjab and others versus Gurdev Singh, Ashok Kumar AIR 1991 Supreme Court 2219. The Hon'ble Supreme Court in this case has clearly held that the suit for declaration that an order of dismissal or termination from service passed against the dismissed employee being wrongful, illegal or ultra vires is governed by Article 113 of the limitation Act and thus it cannot be said that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground Regular Second Appeal No. 1116 of 1986 5 that the dismissal or discharge was void or inoperative. The Hon'ble Supreme Court in the case of Syed Quamarali (supra) had made the following observations which are noticed in the case of Gurdev Singh (Supra):-
" We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under Section 7 could be exercised is totally invalid. The order of dismissal had, therefore, no legal existence and it was not necessary for the respondent to have the order set aside by a Court. The defence of limitation which was based only on the contention that the order had to be set aside by a Court before it became invalid must therefore be rejected."
These observations are then dealt with as under:
These observations are of little assistance to the plaintiffs in the present case. This Court only emphasized that since the order of dismissal was invalid being contrary to para 241 of the Berar Police Regulations, it need to be set aside. But it may be noted that Syed Qamarali brought the suit within the period of limitation. He was dismissed on 22 December, 1945. His appeal against the order of dismissal was rejected by the Provincial Government on 9 April, 1947. He brought the suit which has given rise to the appeal before Supreme Court on 8 December 1952. The right to sue accrued to Regular Second Appeal No. 1116 of 1986 6 Syed Qamarali when the Provincial Government rejected his appeal affirming the original order of dismissal and the suit was brought within six years from that date as prescribed under Article 120 of the Limitation Act, 1908. Accordingly, it was held that the suit for declaration of the order of dismissal or termination from service passed against the plaintiff is wrong, illegal and ultra vires and is governed by Article 113 of the Limitation Act. The contrary position by this Court in the cases of State of Punjab versus Ajit Singh (1988) 1 SLR 96 (P&H) and State of Punjab versus Sh. Ram Singh, (1986) 3 Service Law Reporter 379 were found not correct and were so overruled. In present case , the case of Qamarali (supra) was relied upon by the First Appellate Court to grant relief to the respondent-plaintiff.
Learned State counsel has also drawn my attention to Kamlesh Babu and others versus Lajpat Rai Sharma and others 2008 (2) RCR (Civil) 872, where the Hon'ble Supreme Court has observed that new plea regarding point of limitation even if not taken in the Lower Court can be so taken in the higher Court including the highest Court. It is held that the point of limitation is prima facie admissible even in the court of last resort, although it had not taken in the lower courts. It is also held that reasoning behind the said proposition is that certain questions relating to the jurisdiction of a Court, including limitation, goes to the very root of the Court's jurisdiction to entertain and decide a matter, as otherwise, the decision rendered without jurisdiction will be a nullity. Thus, the view Regular Second Appeal No. 1116 of 1986 7 that for challenging the void order, there would be no bar of limitation as held by the first Appellate Court cannot be sustained. The question of law has to be answered in favour of the appellant that suit being barred by limitation, could have only been ground to dismiss the suit.
The question now would arise is that what relief is to be granted in this case to the appellant-State. The record in this case would show that the execution was stayed on 28.04.1986. The counsel for the parties agree that before that date, the respondent- plaintiff had already joined on 07.08.1985. He has thus continued to serve the Department and has ultimately retired on 30.11.2008. This being the position, it is thus clear that even after his reinstatement, the respondent-plaintiff had rendered a satisfactory service from
07.08.1985 to 30.11.2008, which would work out to be more than 23 years. No arrears of backwages were paid to respondent-plaintiff. He was not also paid the full pay and allowances but was paid the basic pay only.
Though law point is being decided in favour of the appellant-State, which would mean that this appeal is liable to be allowed and decree standing in favour of the respondent-plaintiff need to be set aside. Since the respondent-plaintiff had served for nearly 23 years after implementation of the judgment before its execution could be stayed, it will lead to termination of the services of the respondent-plaintiff though he would have earned his pay and allowance during all this period. To balance the equity, the question of law is answered in favour of the appellant and the appeal is Regular Second Appeal No. 1116 of 1986 8 dismissed with the observation that the period during which the respondent-plaintiff had remained out of service i.e. from the date his absence till his reinstatement would not taken into consideration for any purpose including pay, allowances and seniority. Respondent- plaintiff would not be entitled to back wages for this period. The grievance raised by the respondent-plaintiff about he only being paid basic pay and being on that account cannot be gone into in this Regular Second Appeal and is left open to be agitated.
The Regular Second Appeal is accordingly dismissed.
March 03, 2010 ( RANJIT SINGH ) rts JUDGE