IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.3203 of 2005 Date of Decision: 27.5.2009 Rajan, Ex.Constable. ....... Appellant through Shri R.S.Bajaj,Advocate. Versus State of Punjab and others. ....... Respondents through Shri N.S.Virk, Additional Advocate General, Punjab. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgments and decrees dated 5.3.2003 and 24.5.2005 passed respectively by the Civil Judge (Junior Division), Jalandhar (hereinafter referred to as `the trial Court') and the Additional District Judge, Jalandhar (described hereinafter as `the First Appellate Court') whereby the suit and the appeal of the plaintiff-appellant were dismissed. The appellant filed a suit for declaration against the defendants- respondents. It was pleaded that he was appointed as Constable in Punjab Police on 10.9.1993 and was discharged from service on 23.7.1996 within a span of three years pursuant to the provisions of Rule 12.21 of the Punjab Police Rules,1934 (for short, `the Rules'). It was further pleaded that he had filed an appeal against the order of discharge which was dismissed on R.S.A.No.3203 of 2005 -2- .... 28.5.1999 and a revision preferred thereafter was also dismissed on 31.12.1999 by the competent authorities. The appellant had alleged that the order of discharge was erroneous and was liable to be set aside because the enquiry pursuant to which it was passed was not fair and proper and was against the Rules, especially Rule 16.24 and Article 311 of the Constitution of India. He further alleged that no notice was served upon him before passing the order of discharge and that the orders passed in the appeal and revision were null & void being non-speaking. Upon notice, the respondents appeared and contested the suit. It was pleaded that the no notice under Section 80 of the C.P.C. had been given and that the suit was barred by limitation. The order of discharge was stated to be valid and it was averred that the entire procedure of law had been followed by the enquiry officer on the basis of which the same was passed. They further averred that there was no violation of the principles of natural justice. On the basis of the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the order dated 24.7.96 passed by Commandant, 4th IRB, Jalandhar Cantt., order dated 28.5.1999 passed by DIG/ IRB and order dated 23.9.99 passed by IGP/IRB are illegal, null and void?OPP 2. Whether the plaintiff is entitled to declaration as prayed for?OPP 3. Whether the suit of the plaintiff is within time?OPP R.S.A.No.3203 of 2005 -3- .... 4. Whether the suit is not maintainable in the present form?OPD 5. Whether the notice under Section 80 CPC was not legal and valid?OPD 6. Relief. After appraisal of the material before it, the trial Court concluded that the proper procedure had been followed before passing the order of discharge and, therefore, upheld the same. Consequently, the suit was dismissed. In appeal, the First Appellate Court reversed the findings of the trial Court on issue nos. 1 and 3 and held that since no notice was given to the appellant before passing the order of discharge, it was illegal and violative of the principles of natural justice, but dismissed the suit on the point of limitation. The respondents have not filed any appeal challenging the findings of the First Appellate Court on issue no.1 which was to the effect that proper opportunity of hearing had not been given to the appellant before passing the order of discharge. In the Regular Second Appeal which has been filed by the appellant, learned counsel for the appellant has argued that the First Appellate Court has wrongly dismissed the suit on the point of limitation. It was contended that the order of discharge was passed on 24.7.1996 against which an appeal was preferred which was dismissed on 28.5.1999 and his revision was also dismissed on 23.9.1999. The instant suit was filed in R.S.A.No.3203 of 2005 -4- .... October,1999. Learned counsel for the appellant argued that the suit was filed immediately after the dismissal of the revision and consequently, it cannot be said that the suit was barred by limitation. In support of his contentions, he placed reliance on a judgment of the Supreme Court in Union of India Versus Nandlal Raigar, 1996(3) Service Cases Today 449 (S.C.). According to him, the question of law which arises for consideration of this Court is as under:- “Whether the suit could be dismissed on the ground of limitation when the appellate and revisional authorities had entertained the appeal and revision against the order of discharge?” On the other hand, learned counsel for the respondents contended that the suit has justifiably been dismissed on the ground of limitation because the period prescribed under the Limitation Act,1963 (for short, `the Act') is three years and since the order of discharge had been passed on 24.7.1996 and the suit was filed in October,1999, the findings recorded by the First Appellate Court were completely in accordance with law and do not warrant any interference. I have thoughtfully considered the rival contentions and have gone through the impugned judgments. The only question that has been raised before this Court is as to whether the suit was barred on the ground of limitation. No other contention has been raised. The order of discharge was passed on 24.7.1996 pursuant to the provisions of Rule 12.21 of the Rules, which is extracted hereunder:- R.S.A.No.3203 of 2005 -5- .... “12.21 Discharge of inefficients.- A constable who is found unlikely to prove an efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. There shall be no appeal against an order of discharge under this rule.” A perusal of the afore-quoted rule clearly reveals that against an order of discharge, there is no provision of appeal. Once the statute or the relevant rules provide a complete bar to a challenge being made in appeal to an order which has been passed thereunder, then in that eventuality, in the subsequent appeal or revision, even if entertained, the orders passed would be without jurisdiction. Entering upon proceedings by authorities, who lack jurisdiction, can not lend any legitimacy to them and can not have an impact of enlarging the period of limitation which is provided under Article 113 of the Act which is also extracted below:- “ THE SCHEDULE PERIODS OF LIMITATION FIRST DIVISION – SUITS Description of suit Period of Time from which limitation period begins to run. PART- I to IX xx xx xx xx xx xx xx PART-X – SUITS FOR WHICH THERE IS NO PRESCRIBED PERIOD. 113. Any suit for Three years When the right to sue R.S.A.No.3203 of 2005 -6- .... which no period accrues. of limitation is provided else- where in this Schedule. xx xx xx xx xx xx xx” In Union of India Versus Nandlal Raigar (supra), upon which learned counsel for the appellant had placed reliance, their Lordships of the Apex Court observed as under:- “2. The only question is: whether the suit is within limitation? Article 113 of the Limitation Act,1963 prescribes three years when the right to sue accrues for the purpose of enforcing the right. Since the right to sue had accrued to the respondent on May 9,1973 and the date of dismissal of the departmental appeal is August 26,1974, the latter date would provide limitation and would be considered to be the date from which the running of the limitation began, Viz. August 26,1974. Once the limitation starts running its due course, on expiry of three years from that date, the right to seek remedy to the respondent is lost. The High Curt has upheld the judgment of the appellate Court on the finding that from the inception the order of dismissal was not made in accordance with law and as the respondent had not filed by cross-objection against those findings recorded by the trial Court,it would not be open to him to object to the decree for reinstatement. We find no force in the reasoning of the High Court or the appellate Court. It is true R.S.A.No.3203 of 2005 -7- .... that this Court in State of Madhya Pradesh v. Syed Qamarali (1967 SLR 228), had held in paragraph 20, relied upon by learned counsel for the respondent, that once the order of dismissal is found to have no legal existence, it was not necessary for the respondent to have the orders set aside by a court. It would be seen that in that case the respondent was prosecuted for the offence and he was acquitted on merits. The order of dismissal was founded upon the very same misconduct which was subject-matter of the prosecution. Since the respondent therein was acquitted on merits, there was no foundation for dismissal of the respondent from service. Under those circumstances, the order was considered to be non- existent and, therefore, it was held that he was not required to file a separate suit for setting aside the order of dismissal. The ratio of the said decision has no application to the facts in a case where the department enquiry was conducted and he was found to have committed misconduct as provided under the Rules. The limitation, therefore, would begin to run from the date of dismissal from service. If the dismissed delinquent employee does not avail of the remedy by impugning the order of dismissal within limitation, then it would not be open to him to challenge in the suit that the order of dismissal is in violation of the Rules, that he could ignore the order and then file the suit at any time at his pleasure. If that contention is given R.S.A.No.3203 of 2005 -8- .... acceptance, startling consequences would follow. Under these circumstances, this Court did not intend to lay down that even in a case of dismissal after due enquiry and where the order is allowed to become final, it would be ignored by the delinquent employee and contended that the limitation does not stand as a bar to him. Moreover, the interpretation given by this Court is based upon paragraph 241 of the Police Regulations. The ratio therein would be considered to be applicable to the facts in that case.” A reading of the above reproduced observations of the Supreme Court do not enhance the case of the appellant at all. In fact, these observations are to the extent that pursuant to the provisions of Article 113 of the Act, the period of limitation is three years from the date when right to sue arises, which has been taken to be the date of dismissal of the appeal. But, as observed earlier, if the statute itself debars the remedy of appeal, then such an order passed by an authority with an assumed jurisdiction would not lend sanctity and legitimacy to the proceedings and bend the period of limitation to the date of passing of an order with an inherent lack of jurisdiction. In the instant case, as noticed above, there was no provision for an appeal or revision against the order of discharge and, therefore, the mere answering of such an appeal or revision which have been preferred erroneously, would not extend the period of limitation in favour of the appellant. R.S.A.No.3203 of 2005 -9- .... The question of law, therefore, stands answered above against the appellant and in favour of the respondents. Consequently, this appeal is dismissed being devoid of any merit. May 27,2009 ( Mahesh Grover ) “SCM” Judge