Punjab-Haryana High Court
State Of Punjab vs Balbir Kaur on 19 November, 1996
Equivalent citations: (1996)117PLR795
JUDGMENT G.C. Garg, J.
1. Plaintiff-respondent filed a suit for declaration that order dated 30.8.1983 as modified by order dated 8.5.1986 passed by the General Manager, Punjab Roadways, Ferozepur imposing upon him penalty of withholding one increment with cumulative effect was illegal, null and void. The suit was filed an 4.6.1990. The suit was opposed, inter alia, on the ground that it was barred by limitation. As a consequence of that preliminary objection taken in the written statement, trial court framed an issue being Issue No.2, "Whether the suit of the plaintiff is within limitation". The trial court under that issue concluded that the order imposing penalty of stoppage of increment was passed in contravention of mandatory provisions of the rules and the principle of natural justice and such an order is null and void and it is open to the Government servant to ignore such an order and claim arrears of pay and allowances which became due to him and were not given to him on account of a void order. It was further concluded that for claiming arrears of pay, limitation for filing the suit is three years and that the right to claim wages arises, at the end of every month because wages are payable monthly and this right continues to arise to the Government servant up to the age of superannuation. The trial court further concluded that the right to salary cannot be interrupted by a void order. As a consequence of the above, the trial court concluded that the suit was not barred by time and the plaintiff was entitled to pay and allowances for the period of three years preceding the date of filing of the suit. The suit was ultimately decreed by judgment and decree dated 17.5.1994. Appeal there-against was dismissed by learned Addl. District Judge by judgment and decree dated 28.11. 1995. It is how this second appeal has been filed by the defendant-State.
2. Shri J.S. Brar, learned DAG Punjab vehemently, submitted that the view taken by the courts below is contrary to law and the suit filed by the plaintiff deserves to be dismissed. According to the learned counsel, order of penalty even if held to be void, is required to be set aside within a period of three years in view of the judgment of the Supreme Court in State of punjab and Ors.
v. Gurdev singh and Ashok Kumar, A.I.R.1992 S.C. 111, and it can not be held that the plaintiff has a continuing cause of action accruing to him every month for claiming wages. Mr. Brar further submitted that the courts below have erred in granting the relief by placing reliance on The State of Punjab v. Parkash Singh, 1993(3) Service Cases Today 394.
3. Learned counsel for the respondent on the other hand, vehemently submitted that the Judgment and decree passed by the courts below is perfectly, justified and this Court in Parkash Singh's case (supra) has clearly held that the employee is entitled to wages for a period of three years preceding the date of the suit even if the order is illegal and void. It was further submitted that the order of penalty passed in the year 1983 as modified in the year 1986 has been held to be illegal and void by the courts below and therefore, the suit has been rightly decreed.
4. I have gone through the judgments cited by the counsel for the parties. In Gurdev Singh and Ashok Kumar's case (supra), services of the employee were terminated on 27.1.1977 on account of his absence from duty. He filed a suit on 18.4.1984, for declaration that the order of termination was against the principle of natural justice, terms and conditions of employment, void and inoperative and he continued to be in service. On an objection taken by the State, a question arose, whether the suit was barred by time. The trial court accepted the plea of limitation and dismissed the suit but on appeal, learned Additional District Judge, Jalandhar decreed the suit. He observed that the order of termination though simplicitor in nature was passed as a measure of punishment. Services were terminated without any enquiry and he should have been given an opportunity to explain his conduct by holding a proper enquiry. On the plea of limitation, learned Addl. District Judge held that no limitation was prescribed for challenging an illegal order and since the order of termination was bad, the suit was not barred by time. In second appeal, the High Court agreed with the view taken by the learned Addl. District Judge. It was in this situation, the Supreme Court observed;
"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."
xxx xxxx xxx "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."
5. The apex Court went on to observe that a party aggrieved by an invalidity of the order has to approach the Court for the relief of declaration that the order against him is inoperative and not binding upon him and that a party must approach the Court within the prescribed period of limitation and that if the statutory time limit expires, the court cannot give declaration sought for. In the end while allowing the appeal it was held 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 and Haryana High Court in these and other cases (State of Punjab v. Ajit Singh, (1988)1 S.L.R. 96 and (ii) State of Punjab v. Ram Singh, (1986)3 S.L.R. 379) is not correct and stands overruled.
6. The above conclusion and observations of the Supreme Court in the cases aforesaid clearly go to show that even illegal or void order is governed by the provisions of Article 113 of the Limitation Act and the suit must be instituted within a period of three years and if the statutory time limit expires, the Court cannot grant declaration sought for. It thus concluded that the suit filed in the aforesaid cases was barred by time.
7. In the wake of the above, the courts below in the facts and circumstances of this case were not justified in granting the relief especially when the challenge to the order of penalty was made after the expiry of period of limitation as prescribed under Article 113 of the Limitation Act, the order having been passed in 1983 as modified on 8.5.1986 and the suit filed in April 1990.
8. The courts below, however, placing reliance on Parkash Singh's case (supra) decreed the suit and granted wages to the plaintiff for a period of three years preceding the date of institution of the suit. In the case relied upon by the courts below, K.P. Bhandari, J. (as his Lordship then was), granted relief to Parkash Singh in the same manner as has been granted by the courts below in the present case. Relief was however granted in the above reported case by observing that a government servant can ignore an order which is null and void and claim arrears of pay and allowances which became due end were not given to him on account of a void order and that for claiming arrears of pay, limitation for filing a suit is three years. According to the learned Judge, right to claim wages arises at the end of every month because wages are payable every month. This observation in my view was made after holding that the order of penalty was void and is not to be taken note of, No other conclusion is possible from the reading of the said judgment. A reading of Gurdev Singh's case (supra) clearly goes to show that the judgment of the Supreme Court in Parkash's Singh's case (supra) was not brought to his Lordship's notice and had it been so done, the view taken therein may have been entirely different.
9. In the absence of an order of penalty, a right accrues to the workman or the government employee at the end of every month the wages being paid monthly and it is open to the workman/employee to claim wages for a period of three years preceding the date of the suit. However, a question arises, whether the employee can claim wages for period of three years preceding the date of the suit without getting the order of penalty set aside, may be illegal or a void order. The answer in my view has to be in the negative. The Supreme Court in Gurdev Singh's case (supra) has in unequivocal terms concluded that even a void order is required to be set aside and it cannot be just ignored and the employee can claim wages at any point of time by filing a suit, for a period of three years preceding the date of the suit. The view taken by the courts below would be perfectly justified if the wages had not been paid to an employee in the absence of any order of penalty but once an order of penalty whatever it may, i.e. a wrongful or illegal order is passed, right to receive wages by a government servant comes to an end. He cannot claim wages thereafter by just ignoring this order till such time the order of penalty is got declared illegal or void from a court of competent jurisdiction in appropriate proceedings and within the period of limitation as prescribed under Article 113 of the Limitation Act. The right to receive wages has been put to an end by the order of penalty and the right of the government employee to receive wages is also put to an end by an order may be an illegal order. Once this right is put to an end by an order, wages cannot be paid to the employee till such time the said order is declared to be illegal or void. If the order of penalty is not set aside within the period of limitation, it continues to be a good order and binding on the government employee and, therefore he cannot claim wages for any period at any point of time without getting the said order set aside. The order of penalty, may be illegal or otherwise can only be set aside within a period of three years from the date the cause of action accrued to the government employee. In the present cases cause of action accrued to the plaintiff when the order of penalty was initially passed on 30.8.1983 and later on 8.5.1986 when the order of penalty was modified. Therefore, the suit to get these orders declared as illegal and void ought to have been filed within a period of three years from the latter date viz. 8.5.1986 as by virtue of this order right to receive salary by the employee on the expiry of one month was put to an end. The order of penalty still stands, it having hot been set aside within the period of limitation. Once that is so, it was not open to the courts below to grant relief as has been granted in the present case.
10. In view of the above observations and following the view taken by the Supreme Court in Singh's case (supra), it is held that the suit filed by the plaintiff was barred by time and the courts below erred in decreeing the said suit and granting the relief as noticed above. This appeal is consequently allowed and the judgment and decree dated 28.11.1995 is set aside and as a consequence thereof, suit of the plaintiff also stands dismissed. In the peculiar facts and circumstances of this case, there will be no order as to costs.