ivil Appeal Nos
1852  4772 of 1989
From the Judgment and Order dated 2551988  11111988 of the Punjab and Haryana High Court in RSA Nos
2404 of 1987 and 2246 of 1988
666 AS Sohal and GK Bansal for the Appellants
Atul Nanda Francis Victor SK Mehta NP Subhash G Jindal and NA Siddiqui for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY  J
These appeals against the decision of the High Court of Punjab  Haryana raise a short issue concerning limitation governing the suit for declara tion by a dismissed employee that he Continues to be in service since his dismissal was void and inoperative
The High Court has observed that if the dismissal of the employ ee is illegal void or inoperative being in contravention of the mandatory provisions of any rules or conditions of service there is no limitation to bring a suit for declara tion that the employee continues to be in service
The facts giving rise to these appeals as found by the Courts below may be summarised as follows CA No 185289 The respondent in this appeal was ap pointed as an ad hoc sub inspector in the District Food and Supply Department of Punjab State
He absented himself from duty with effect from 29 September 1975
On 27 January 1977 his services were terminated
On 18 April 1984 he insti tuted the suit for declaration that the termination order was against the principles of natural justice terms and conditions of employment void and inoperative and he con tinues to be in service
The State resisted the suit con tending inter alia that the plaintiff s services were terminated in accordance with the terms and conditions of his ad hoc appointment and the suit was barred by time
The trial court accepted the plea of limitation and dismissed the suit but on appeal the Additional District Judge Jullundhar decreed the suit
He observed that the termina tion order though simpliciter in nature  was passed as a measure of punishment
The plaintiff s services were termi nated for unauthorised absence without an enquiry and he should have been given an opportunity to explain his conduct by holding proper enquiry
On the plea of limitation learned Additional District Judge held that no limitation is prescribed for challenging an illegal order
Since the
order of termination was bad the suit was not barred by time
In the second appeal preferred by the State the High Court agreed with the View following its earlier decisions
CA No 477289 The respondent in this appeal was a Railway 667 Police Constable
He was appointed on 14 November 1977
On 15 March 1979 he was discharged from service for some misconduct
On 15 June 1979 his appeal was rejected by AIG Railways Patiala Punjab
On 30 November 1979 his revision petition was dismissed by the Inspector General of Police Punjab
On 12 February 1985 he brought a suit seeking declaration that the order discharging him from service and confirmed in the appeal and revision was illegal ultra vires unconstitutional and against the principles of natu ral justice and he continues to be in service as constable
The trial court dismissed the suit
The appeal preferred by the plaintiff was accepted by the Additional District Judge who decreed the suit as prayed for
He has inter alia stated that the plaintiff was discharged from service in contraven tion of the mandatory provisions of the rules and as such it has no legal effect
There is no period of limitation for
inStituting the suit for declaration that such a dismissal order is not binding upon the plaintiff
While affirming that principle the High Court dismissed the second appeal in limine
These are not the only cases in which the Punjab and Haryana High Court has taken the view that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that the dismissal or discharge was void or inoperative
The High Court has repeatedly held that if the dismissal discharge or termination of services of an employee is illegal uncon stitutional or against the principles of natural justice the employee can approach the Court at any time seeking declaration that he remains in service
The suit for such reliefs is not governed by any of the provisions of the Limitation Act See i State of
Punjab vs Ajit Singh and ii State of Punjab vs Ram Singh 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 limita tion has not been set up as a defence Section 2J defines the expression period of limitation to mean the period of limitation prescribed in the Schedule for suit appeal or application
Section 2J also defines prescribed period to mean the period of limitation computed in accordance with the provisions of the Act
The Court s function on the presentation of plaint is simply to examine whether on the assumed facts the plaintiff is within time
The Court has to find out when the 668 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 fail 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 residu ary 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
According to the third column in Article 113 time commences to run when the right to sue accrues
The words right to sue ordinarily mean the right to seek relief by means of legal proceedings
Generally the right to sue accrues only when the cause of action arises that is the right to prosecute to obtain relief by legal means
The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is insti tuted See i Mt Bole vs Mt Koklam and Ors AIR 1930 PC 270 and ii Gannon Dunkerley and Co vs The Union of India  In the instant cases the respondents were dismissed from service
May be illegally
The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal
They have not been paid their salary from that date
They came forward to the Court with a grievance that their dismissal from service was no dis missal in law  According to them the order of dismissal was illegal inoperative and not binding on them
They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in
service
For the purpose of these cases we may assume that the order of dismissal was void inoperative and ultra vires and not voidable
If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically
It need not be set aside
The aggrieved party can simply seek a declaration that it is void and not bind ing upon him
A declaration merely declares the existing state of affairs and does not quash  so as to produce a new state of affairs
But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court
In Smith vs East
Elloe Rural District Council  at 769 Lord Redcliffe observed 669  An order even if not made in good faith is still an actcapable of legal consequences
It bears no brand of invalidity upon its fore head
Unless the necessary proceedings are taken at law to establish the cause of inva lidity and to get it quashed or otherwise upset it will remain as effective for its ostensible purpose as the most impeccable of orders
 Apropos to this principle Prof Wade states the principle must be equally true even where the brand  of invalidity  is plainly visible for their also the order can effectively be resisted in law only by obtaining the deci sion of the Court See Administrative Law 6th Ed
p 352
Prof Wade sums up these principles The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances
The order may be hypothetically a nullity but the Court may refuse to quash it because of the plain tiff s lack of standing because he does not deserve a discretionary remedy because he has waived his rights or for some other legal reason
In any such case the void  order remains effective and is in reality valid
It follows that an order may be void for one purpose and valid for another and that it may be void against one person but valid against another Ibid p 352 It will be clear from these principles the party ag grieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him
He must approach the Court within the prescribed period of limitation
If the statutory time limit expires the Court cannot give the declaration sought for
Counsel for the respondents however has placed strong reliance on the decision of this Court in State of M Pv
Syed Quamarali The High Court has also relied upon that decision to hold that the suit is not governed by
the limitation
We may examine the case in detail
The respondent in that case was a sub inspector in the Central Province Police Force
He was dismissed from service on 22 December 1945
His appeal against that order was dismissed by the Provincial Government Central Prov inces and Berar on 9 April 1947
He brought the suit on 8 December 1952 on allegation that the order of dismissal was contrary to the para 24 1 of the Central Provinces and 670 Berar Police Regulations and as such contrary to law and void and prayed for recovery of Rs47245 on account of his pay and dearness allowance as sub inspector of police for the three years immediately preceding the date of the insti tution of the suit
The suit was decreed and
in the appeal before the Supreme Court it was urged that even if the order of dismissal was contrary to the provisions oflaw the dismissal remained valid until and unless it is set aside and no relief in respect of salary could be granted when the time for obtaining an order setting aside the order of dismissal had elapsed
It was observed 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 dismissalhad 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 orderhad to be set aside by a court before it became invalid must therefore be rejected
 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 not 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 dis missal was rejected by the Provincial Government on 9 April 1947
He brought the suit which has given rise to the appeal before the Supreme Court on 8 December 1952
The right to sue accrued to 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
The Allahabad High Court in Jagdish Prasad Mathur and Ors
vs United Provinces Government AIR 1956 All 114 has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void is gov erned by Article 120 of the Limitation Act
A similar view has been taken by Oudh Chief Court in Abdul Vakil vs Secre tary of State and Anr AIR 1943 Oudh 368
That in our opinion is the correct view to be taken
A suit for declara tion 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  Haryana 671 High Court in
these and other cases iState of Punjab vs Ajit Singh
and ii State of Punjab vs Ram Singh is not correct and stands overruled
In the result we allow the appeals set aside the judgment and decree of the High Court and dismiss the suit in each case
In the circumstances however we make no order as to costs
VPR Appeals allowed


Summary:
The appellant a public limited company was the lessee of wo cinema houses  West End  and  Capitol  situated within the Poona cantonment area
 By a notification dated June 17 1948 the Bombay Government with the sanction of the Governor General in Council imposed certain taxes in the cantonment of Poona including an entertainment tax of Rs 10 per show on the appellant s cinema houses and Rs 5 per show on others
The appellant who paid the tax under protest brought the suit out of which the present appeal arose for a declaration that the 64 imposition of the said tax by the respondent was illegal for a permanent injunction restraining it from levying the tax and for the refund of Rs 45802 paid as tax by the appellant
The trial Court decreed the suit but the High Court on appeal by the respondent reversed the decision of the trial Court and dismissed the suit  Under section 601 of the 11 Of 1924 read with section 73 xiv Of the Bombay Municipal Boroughs Act 1925 Bom
XVIII of 1925 the respondent had the power to impose any other tax which the Bombay Provincial Legislature could impose on the province
The question therefore was whether the Bombay Legislature had the power to impose the tax in question
It was contended on behalf of the appellant that although the Provincial Legislature had undoubtedly the power under section 100 of the Government of India Act 1935 read with Entry 50 in Sch
VII thereto to make law with respect to  taxes on luxuries including taxes on entertainments amusements betting and gambling  the said entry contemplated a law imposing taxes on persons who enjoyed the luxuries entertainments or amusements and not on persons who provided them
Such a tax if levied on the latter would be one on profession trade or calling as contemplated by Entry 46 of the said Schedule and could not exceed Rs 100 per annum under section 142A of the Government of India Act 1935 and Rs 250 per annum under article 2762 of the Constitution
Held that the contention must be negatived
It is well settled that in construing an entry conferring legislative powers the widest possible construction according to their ordinary meaning must be given to the words used
There could be no reason therefore in construing Entry 50 to differentiate between the giver and the receiver of the luxuries entertainments or amusements and both must be held to be amenable to the tax
Navinchandra Mafatlal vs The Commissioner of Income tax Bombay City  referred to
Although an entertainment tax was regarded as a tax on expenditure there was no warrant for holding that Entry 50 contemplated only a tax on moneys spent on luxuries entertainments or amusements
What it had in view were these matters and not either the giver or the receiver of them as the real objects of legislation
The impugned tax was distinguishable from a tax on a pro fession or calling
It was a tax imposed on an actual show and not on a profession or calling whether there was an exercise of it or not