Patna High Court
Rabindra Nath Biswas vs General Manager, N.F. Rly. And Ors. on 11 April, 1986
Equivalent citations: AIR1988PAT138, AIR 1988 PATNA 138, (1987) 2 CIVLJ 321, (1987) BLJ 508, (1988) 1 CURCC 196, 1986 BBCJ 674
JUDGMENT S. Ali Ahmad, J.
1. This second appeal arises out of a suit filed by the plaintiff-appellant for a declaration that the order dated 8-1-1964 passed by defendant No. 2 dismissing the plaintiff from service with effect from 15-1-1964 is illegal, void and without jurisdiction. Another prayer that has been made is that the order dated 3-2-1964 passed by defendant No. 1 dismissing the departmental appeal was also illegal and without jurisdiction.
2. Admittedly the plaintiff was an employee of N. F. Railway and was posted at Katihar. A departmental enquiry was initiated against him by an order dated 25th September, 1962. The allegation was that by introducing himself as a clerk of Katihar district office the plaintiff got encashed some bogus substitute salary bills. On that account, it was said that the plaintiff had defrauded the railway administration. A departmental enquiry was conducted in which the plaintiff was found guilty. A second show cause notice was, therefore, given to him to explain as to why he should not be dismissed from service. The plaintiff-appellant submitted his explanation but the same was not accepted and the plaintiff was dismissed by order dated 8-1-1964 passed by defendant No. 2. His appeal also was dismissed on 3-2-1964. The plaintiff thereafter filed the suit for the relief aforementioned on the ground that the enquiry itself was violative of the principle of natural justice inasmuch as he wanted to examine in his defence some witnesses, who were in the employment of the railway. But the railway administration did not allow those persons to be examined as witnesses. The other ground for attack was that he was not supplied with necessary papers during the domestic enquiry and that also caused prejudice to him. It may be mentioned that the suit was filed on 12-2-1966 but the Union of India was not made a party. The General Manager and others filed written statements stating that the suit was bad for non-impleading the Union of India. Their further case was that the plaintiff had earlier moved the High Court of Assam and Nagaland at Gauhati in Civil Rule No. 112 of 1964 and the writ application was dismissed by the learned Judges. On merit their case was that the principle of natural justice was complied with and there was no infraction of any rule. After this written statement was filed the plaintiff filed an application on 14-6-1967 praying to implead the Union of India by amending the plaint. After hearing both sides the learned Munsif allowed the amendment petition and impleaded the Union of India as a party defendant to the suit by order dated 27-6-1967. Although the Union of India was allowed time to file written statement, but it appears that no separate written statement was filed on their behalf.
3. The trial Court on a consideration of the evidence held that the suit was barred by the principle of res judicata. It also found that the departmental enquiry did not suffer from any defect. It, therefore, dismissed the suit. Thereafter an appeal was taken to the District Judge, Purnea, which was heard by the Subordinate Judge, Katihar. The learned Subordinate Judge disagreeing with the trial Court held that the departmental enquiry was not fair, but it agreeing with the trial Court held that the suit was barred by the principle of res judicata. It was held that the suit was barred by limitation. It, therefore, dismissed the appeal. Thereafter this second appeal has been fifed.
4. There is no dispute that Article 58 of the Limitation Act, 1963 is applicable to the suit and the period of limitation is three years from the day when the right to sue first accrued. Although the order of dismissal was passed on 8-1-1964 but the appeal against that order was dismissed on 3-2-1964. Therefore, the suit should have been filed within three years from 3-2-1964 plus two months, the period of requisites for notice under Section 80 of the Code of Civil Procedure. The suit giving rise to this appeal was filed on 12-2-1966. Therefore, the suit was filed within time. The controversy arises about the Union of India which was added as a party-defendant on 27-6-1967. The Court of appeal below has held that since the Union was added as a party defendant after the period of limitation had expired, the suit must be held to be barred against it. Further the Court has held that if the suit is to be dismissed against the Union of India then the plaintiff cannot get a decree against the other defendants.
5. Mr. Ojha appearing on behalf of the defendant-respondents has vehemently and strongly supported this view and has also drawn my attention to the case of the State of Kerala v. The General Manager, Southern Rly., AIR 1976 SC 2538 and the case of Ranjeet Mal v. General Manager, Northern Rly., New Delhi, AIR 1977 SC 1701. I do not think, these cases can be of any help to Mr. Ojha. The suit, as I have stated earlier, was filed in the year 1966 after the present Limitation Act had come into force. The proviso to Section 21(1) of the Act says that where the Court is satisfied that the omission to include a party was due to mistake made in good faith then it may direct that the suit as regards that party shall be deemed to have been instituted on any earlier date. The Supreme Court in the case reported in AIR 1976 SC 2538 (Supra) nowhere says that the amendment cannot be allowed by the trial Court. I may also mention here that the case before the Supreme Court arose out of a suit that was filed prior to enforcement of the present Limitation Act and in the old Limitation Act there was no provision like Section 21(1) Proviso of the Act. Mr. Ojha then urged that while allowing the Union of India to be added as a party, the trial Court did not purport to exercise its power under the proviso to Section 21(1) of the Limitation Act. According to him, neither any prayer in terms of the provision was made nor the order allowing amendment said that the suit against the added defendant will be deemed to have been instituted on any earlier date. He is right. The order does not say so. But that does not mean that the trial Court did not intend to allow amendment in view of the proviso to Section 21(1) of the Limitation Act. Further it appears that the trial Court and also the parties thought that the amendment was being made in terms of the proviso to Section 21(1) of the Act. This I say because no argument seems to have been advanced by the defendants in the Court below that the suit was barred by limitation although there was specific issue on the question of limitation. The trial Court while disposing of this issue in paragraph 9 of its judgment held that the suit was filed within three years from the dismissal of the departmental appeal. The Court of appeal below, therefore, in my opinion, was wrong in holding that the appeal was barred by limitation. I may, however, add that if the trial Court thought that the amendment was made without taking help of proviso to Section 21(1) of the Limitation Act then it had ample power to rectify that mistake and it should have said that the suit will be deemed to have been instituted against the newly added defendant on the day when the suit was filed.
6. The next ground on which the suit has been dismissed is one of res judicata. It is well settled that an order of dismissal of a writ application in limine will not operate as res judicata but it is also well settled that if, while dimissing the writ application in limine, a reasoned order has been given, then the facts decided by that reasoned order will operate as res judicata. Ext. J is the order passed by the Assam and Nagaland High Court. A perusal of this order shows that the petitioner had challenged the order dated 8-1-1964 by which he was dismissed from service. The attack was on the ground that the copy of statement of witnesses recorded during the preliminary enquiry was not given to the petitioner, namely, the appellant and also that the enquiring officer was biased. These two grounds were negatived. It was held that on account of non-supply of the statement of witnesses no prejudice was caused to the Appellant. Likewise the fact that the enquiring officer was biased against the appellant was also turned down. In this case, the lower appellate Court has given two findings; (i) that non-supply of the statement of witnesses did cause prejudice to the appellant, and (ii) that the appellant wanted to examine some persons who were in employment of the Railways as defence witnesses, but the Railways did not allow them to be produced for examination before the enquiring officer. On these two grounds the Court of appeal below has held that the enquiry was not fair. In my opinion, the first question regarding prejudice on account of non-service of the copy of statement to the plaintiff clearly operates as res judicata. This finding, therefore, cannot be sustained. But the other finding that the Railways did not allow its employees to be produced for giving evidence in support of the plaintiff stands as there was no adjudication on this issue. This ground is sufficient to hold that the domestic enquiry was not fair. Once it is held that the domestic enquiry was not fair then there is no difficulty in holding that the order of dismissal dated 8-1-1964, which later merged in the order dated 3-2-1964 is illegal and void. I may also mention that the only attack before the Assam and Nagaland High Court was on the order of dismissal dated 8-1-1964 and the appellate order dated 3-2-1964 was not the subject matter before the High Court. Therefore, on this ground also it cannot be said that the present suit is barred by res judicata.
7. For the reasons stated above, the appeal is allowed, the judgments and decrees of the Courts below are set aside and the suit, as prayed for, is decreed. On the facts of this case, the parties will bear their own costs.