R.S.A. No. 931 of 1993 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 931 of 1993 (O&M) Date of decision: 08.02.2010 Sohan Lal ....Appellant Versus The State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Akshay Bhan, Advocate, for the appellant. Mr. N.S. Virk, Addl. A.G., Punjab. VINOD K. SHARMA, J.(ORAL) CM No. 13373-C of 2009 CM allowed, reply is taken on record. CM No. 8913-C of 2009 For the reasons stated in the application, CM is allowed and the delay of 64 days in filing the application is condoned. CM No. 8914-C of 2009 For the reasons stated in the application, CM is allowed, order dated 28.04.2009 is recalled and the appeal is restored to its original number. RSA No. 931 of 1993 This is plaintiff/appellant's regular second appeal against the judgment and decree dated 21.11.1992, passed by the learned lower appellate Court, vide which the suit filed by the plaintiff/appellant to challenge the order of his dismissal, stands dismissed. The plaintiff/appellant was involved in a criminal case and was R.S.A. No. 931 of 1993 (O&M) -2- suspended. On acquittal, by the Criminal Court, the plaintiff/appellant was reinstated in service and posted at Ludhiana, where he joined. The plaintiff/appellant was thereafter transferred to Ropar. The plaintiff/appellant chose not to join his new place of posting and was, therefore, treated absent from duty. On account of mis-conduct i.e. absence from duty, the plaintiff/appellant was dismissed from service vide order dated 31.07.1978. Though it was not disclosed in the plaint, it seems the appellant had preferred a departmental appeal against the order of his dismissal. The appellant without disclosing the fact of pendency of appeal challenged the order of his dismissal dated 31.7.1978 by claiming it to be passed against the principles of natural justice, as well as against the Service Rules. The learned trial Court decreed the suit, as the defendant/respondents failed, to prove the issuance of notice to the appellant. The proceedings held against the appellant, were said to be in violation of principles of natural justice. The order of dismissal was, thus, held to be bad in law. The State of Punjab preferred an appeal before the learned lower appellate Court. The learned lower appellate Court held, that as per admitted facts, impugned order was dated 31.7.1978, whereas the appellant had filed suit to challenge the order in the year 1988. The suit was, therefore, held to be barred by limitation. The judgment and decree passed by the learned trial Court was set aside, and the suit of the plaintiff/appellant was ordered to be dismissed. R.S.A. No. 931 of 1993 (O&M) -3- The learned trial Court had treated the order dated 31.7.1978 to be void and held that there was no limitation to challenge a void order. The learned lower appellate Court, in view of the judgment of the Hon'ble Supreme Court laying that even void orders are required to be challenged within three years, held the suit to be barred by limitation. Mr. Akshay Bhan, learned counsel, appearing on behalf of the appellant, contends that the appeal raises the following substantial question of law: - “Whether in view of the clear admission by DW1 that the final order of dismissal of the appellant was only passed on 24.5.1989 i.e. on dismissal of his departmental appeal, the suit could be held to be time barred?” In support of the substantial question of law, the learned counsel for the appellant contended, that once it was proved that the order dated 31.7.1978 was challenged by the plaintiff/appellant by availing statutory remedy of appeal, which was only dismissed on 24.5.1989, the suit could not be said to be barred by limitation, as held by the learned lower appellate Court. The contention of the learned counsel for the appellant further was, that the learned appellate Court should have seen the subsequent events to record a finding that the suit was not barred by limitation. It could at best be said to be pre-mature, as the appellate order dated 24.5.1989 could not have been challenged by the appellant in the year 1988. On consideration, I find no force in the contentions raised by the learned Counsel for the appellant. It is not in dispute that the plaintiff/appellant had only challenged the order dated 31.7.1978, and R.S.A. No. 931 of 1993 (O&M) -4- did not challenge the order dated 24.5.1989, in spite having knowledge of the order. The plaintiff/appellant neither disclosed the fact of filing of appeal in the suit. The only challenge in suit was to order dated 31.7.1978. The learned lower appellate Court was, therefore, right in holding that the suit filed by the plaintiff/appellant was barred by limitation, as at no stage, the plaintiff/appellant agitated against or challenged the order dated 24.5.1989. The facts, which are not pleaded and the order which is not challenged by the plaintiff/appellant, could constitute subsequent event to be taken note of by the learned appellate Court, while adjudicating the civil suit against the impugned order. The civil Court does not sit in appeal over the orders passed by authority on administrative side. The substantial question of law is answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge February 08, 2010 R.S.