R.S.A. No. 1108 of 1992 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1108 of 1992 (O&M) Date of decision: 21.03.2009 State of Punjab and others ....Appellants Versus Harcharan Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. R.L. Gupta, Addl. A.G., Punjab, for the appellants. Mr. S.K. Sharma, Advocate, for the respondent. ***** VINOD K. SHARMA, J C.M. No. 2185-C of 2008 This application has been filed by the plaintiff/respondent under Section 41 Rule 27 of the Code of Civil Procedure for permission to lead additional evidence. By way of additional evidence, the respondent intends to place on record the application dated 10.3.2008 addressed to SSP, Patiala, vide which he had requested to know about the date of his coming from Ropar and deputation from Patiala to Chandigarh. He also wishes to place on record the certificate Annexure R-11 and certificate from Inspector General of Police, U.T., Chandigarh, Annexure P-12 as well as certificate of the Accounts Branch of S.P., Ropar, as Annexure R-13. The object of leading additional evidence is to prove that the R.S.A. No. 1108 of 1992 (O&M) -2- respondent was not working under the Superintendent of Police, Ropar, from 7.9.1978 to 10.8.1984 and 1.6.1978 to 5.9.1978 and, thus, he has not seen his work and conduct for the said period. However, on consideration of matter, I find no force in this application. The suit filed by the plaintiff is prima facie barred by limitation and, thus, not maintainable and, therefore, these documents by way of additional evidence are not relevant to the decision of the case. Consequently, the application is dismissed. R.S.A. No. 1108 of 1992 This regular second appeal by the State of Punjab is directed against the judgments and decree passed by the learned Courts below vide which the suit filed by the plaintiff/respondent for declaration to challenge the order dated 9.7.1984 of his pre-mature retirement, to be illegal, null and void, ultra vires, unconstitutional and against the principles of natural justice stands decreed. The plaintiff/respondent brought a suit on the pleadings that he joined Police Department as member of the Disciplined Force. On passing of lower school examination, he was promoted to the rank of Head Constable, and subsequently as Assistant Sub Inspector of Police. He also claimed to have obtained various commendation certificates. It was also pleaded by the plaintiff/respondent that he was allowed to cross efficiency bar w.e.f. 26.6.1974 and was transferred to Union Territory, Chandigarh, on 1.6.1975 on deputation. It was the case of the plaintiff that his record remained satisfactory throughout. The Superintendent of Police, Ropar, defendant No. 3 retired the plaintiff pre-maturely on 2.7.1984, inspie of his good record, and pre-mature retirement on the R.S.A. No. 1108 of 1992 (O&M) -3- basis of uncommunicated confidential reports was said to be illegal. It was further pleaded that defendant No. 3 i.e. S.P., Ropar, had no power or authority to retire the plaintiff, and also that on crossing of efficiency bar, all adverse entries stood condoned. On notice, the suit was contested by taking preliminary objections that the suit was not maintainable and that the suit was not properly valued for the purposes of Court fee and jurisdiction. The suit was also said to be pre-matured and also time barred. The jurisdication of the Civil Court to entertain the suit was also challenged. On merits, it was pleaded that the record of the plaintiff/respondent was not good and his efficiency bar was withheld for one year on 24.6.1976 and secondly w.e.f. 1.6.1986 by the Senior Superintendent of Police, Sangrur, thirdly w.e.f. 1.6.1983 and 1.6.1984 by the Superintendent of Police, Ropar, defendant No. 3, and he was retired from service due to his bad record. It was also the case set up that the plaintiff was arrested in a criminal case on 13.9.1980, and he was placed under suspension and his service record was not satisfactory throughout. A stand was taken that defendant No. 3 Superintendent of Police, Ropar, was competent to retire the plaintiff pre-maturely. The replication was filed in which the averments made in the plaint were reiterated and that of written statement were denied. On the pleadings of the parties, the following issues were framed: - “1. Whether the suit is not maintainable in the present form? OPD. 2. Whether the suit is not properly valued? OPD. 3. Whether no valid and legal notice under Section R.S.A. No. 1108 of 1992 (O&M) -4- 80 CPC has been served upon the defendants before filing the suit? OPD. 4. Whether the suit is premature? OPD. 5. Whether the suit is time barred? OPD. 6. Whether this Court has no jurisdiction to entertain and decide this suit? OPD. 7. Whether the plaintiff is entitled to the declaration prayed for? OPP. 8. Relief.” The learned trial Court took issue No. 7 first and noticed that besides supporting the averments made in the plaint, the plaintiff/respondent tendered Ex. P-1 to Ex. P-8 in evidence. Ex. P-1 was the impugned order dated 3.7.1984, whereas Ex. P-2 was order of D.I.G. Dated 8.8.1985 vide which the representation filed by the plaintiff was rejected. Ex. P-3 was the character roll of the plaintiff. Ex. P-4 was confidential file. Ex. P-5 was notice under Section 80 CPC. Ex. P-6 was promotion order of plaintiff to the post of Head Constable. Ex. P-7 was representation filed by the plaintiff to D.I.G., Patiala Range, against his retirement. Ex. P-8 was registered postal receipts. Whereas defendants tendered into evidence documents Ex. D-1 to Ex. D-5 regarding withholding of efficiency bar of the plaintiff. The learned trial Court was pleased to observe that as per the evidence brought on record, ACR for the period 1.4.1984 to 10.8.1984 recorded by the S.P., Chandigarh, was good. The learned trial Court observed that it also showed that the plaintiff/respondent was sent back to Ropar by S.S.P., Chandigarh, on 10.8.1984, whereas order of retirement is dated 3.7.1984. The learned trial Court, therefore, held that at time of passing of the order dated 3.7.1984, whole of service record of R.S.A. No. 1108 of 1992 (O&M) -5- the plaintiff/respondent was not with S.P., Ropar, defendant No. 3. It was also noticed by the learned trial Court that no adverse entry was communicated to the plaintiff. The ACRs for the period 1.4.1980 to 15.1.1981 and 1.4.1979 to 31.3.1980 showed that honesty of the plaintiff was good. The learned trial Court in order to record this finding, relied upon the judgment of the Hon'ble Supreme Court in H.C. Gargi Vs. State of Haryana, 1986(3) S.L.R. 57. The learned trial Court also held that once it was proved on record that the plaintiff was allowed to cross efficiency bar w.e.f. 15.11.1976 vide order dated 1.6.1985, then adverse entries prior to the said date could not be taken into consideration for retiring a person pre-maturely. In support of this finding, reliance was placed on the judgment of this Court in K.K. Vaid Vs. State of Haryana, 1990 (1) S.L.R. 1. The learned trial Court also noticed that DW-1 Mohinder Singh admitted that the file on the basis of which the plaintiff/respondent was pre-maturely retired was not traceable. The learned trial Court noticed that the plaintiff/respondent was promoted by D.I.G., Patiala Range, Patiala, on the post of ASI and, therefore, the retirement order could not be sustained. The learned trial Court also held that once the plaintiff/respondent was promoted to the post of ASI by DIG, Patiala, the impugned order passed by the SSP could not be sustained and support to this finding was taken from the judgment of this Court in Man Singh Vs. State of Haryana, 1973(1) S.L.R. 365. Thus issue No. 7 was decided in favour of the plaintiff. Issues No. 1 to 4 were not pressed. On issue No. 5, the learned trial Court held that the order of R.S.A. No. 1108 of 1992 (O&M) -6- rejection of plea of the plaintiff/respondent against pre-mature retirement was conveyed to him on 16.9.1985. The learned trial Court further held that orders dated 3.7.1984 and 8.8.1985 were void orders and, therefore, there was no limitation to challenge the same. Consequently, this issue was decided against the appellant/defendants. The plea of the appellant/defendants that the civil Court did not have jurisdiction was rejected, as the order on appeal was passed by DIG, Patiala Range, Patiala, and thus, it was held that as part of cause of action arose at Patiala, the civil Court had the jurisdiction. Thus, the suit was decreed and declaration with consequential relief as prayed was granted in favour of the plaintiff and against the defendant/appellants. The learned lower appellate Court found as a fact that in the service record of the plaintiff for the last five years there was no bad entry and, therefore, he could not be retired compulsorily, in view of the law laid down by the Hon'ble Supreme Court in Brij Mohan Singh Chopra Vs. State of Punjab AIR 1987 S.C. 948. The findings of the learned trial Court were affirmed. However, it may be noticed that findings on issue No. 5 were not challenged by the appellant before the learned lower appellate Court. Mr. R.L. Gupta, learned Additional Advocate General, Punjab, contended that the following substantial questions of law arise for consideration in this appeal: - "1. Whether the judgments and decree passed by the learned Courts below is outcome of mis-reading of documentary and oral evidence brought on record and, thus, perverse? R.S.A. No. 1108 of 1992 (O&M) -7- 2. Whether the learned lower appellate Court mis- applied the law ragarding pre-mature retirement to decree the suit of the plaintiff/respondent?" In support of substantial questions of law, the learned Additional Advocate General, Punjab, contended that in the present case, the evidence brought on record showed that the plaintiff/respondent was compulsorily retired on 3.7.1984, whereas appeal filed by him against the order of pre-mature retirement was dismissed on 8.8.1985, and as per admitted position the order of rejection was conveyed on 16.9.1985 whereas the suit was filed by the plaintiff/respondent on 22.11.1988, therefore, it was on the face of it barred and, thus, was liable to be rejected. In support of this contention, the learned Additional Advocate General, Punjab, placed reliance on the judgment of the Hon'ble Supreme Court in State of Punjab Vs.Gurdev Singh, AIR 1992 S.C. 111 to contend that the suit for declaration that order of dismissal of an employee is illegal and goverened by Article 113 of the Constitution of India. The Hon'ble Supreme Court in State of Punjab Vs.Gurdev Singh (supra) has been pleased to lay down as under: - "The party aggrieved 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. Further, the words "right to sue" under Art. 113 oridinarily 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 R.S.A. No. 1108 of 1992 (O&M) -8- 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 instituted. When the employee is dismissed from service his right to continue in the service is infringed. 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 binding 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 untill it is declared to be void or nullity by a competent body or a Court" The learned Additional Advocate General, Punjab, thereafter placed reliance on the Division Bench Judgment of this Court in Hari Krishan Sirohi Vs. State of Haryana and others, 2002(3) RSJ 140 to challenge the finding recorded by the learned lower appellate Court that mere crossing of efficiency bar would not wipe out or remove the effect of adverse entries recorded in the confidential reports. He further contended that even uncommunicated adverse entries can be taken into consideration while passing the order of compulsory retirement. Hon'ble Division Bench of this Court in Hari Krishan Sirohi Vs. State of Haryana and others (supra) has been pleased to lay down as under: - "6. The Hon'ble Supreme Court of India in the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR R.S.A. No. 1108 of 1992 (O&M) -9- 1992 S.C. 1020 has clearly held that even uncommunicated adverse remarks can be taken into consideration while passing such an order and it would not amount to violation of principles of natural justice. While recording its subjective satisfaction, the Government can consider the entire service record and having framed the instructions that 10 years service record would be considered, we are unable to see any error in the decision taken by the respondents. This Court would not sit as a Court of Appeal over the decision of the administrative authorities. The purpose is to retain the employees having good service record and who would be of greater utility to the State Administration. 7. The other contention raised on behalf of the petitioner is also without any merit. The mere fact that the petitioner was permitted to cross the efficiency bar per se would not wipe out even remove the effect of the adverse entries recorded in the confidential reports of the petitioner. These are two different aspects and criteria for them is also different. We do not consider it necessary for us to devolve on this issue any further as the matter has already been settled by the judgment of the Hon'ble Supreme Court in the case of State of Orrisa and others Vs. Ram Chandra Das, AIR 1996 Supreme Court 2436, where the Hon'ble Apex Court held as under: - "Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the Government servant could not be ordered. The evidence does not become inadmissible or irrelavant as opined by the Tribunal. What would be relevant is whether upon that state of R.S.A. No. 1108 of 1992 (O&M) -10- record as a reasonable prudent man would the Government or competent officer reach that decision. We find that self-same material after promotion may to be taken into consideration only to deny his further promotion, if any, but that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the Government servant in service after he attained the required length of service or qualified period of service for pension." The learned Additional Advocate General, Punjab, also placed reliance on the judgment of the Hon'ble Supreme Court in State of Punjab and others Vs. Manohar Lal, AIR 1987 Supreme Court 201 to contend that the learned Courts below were not right in holding that SSP was not competent to pass an order of compulsory retirement. The contention of the learned Additional Advocate General, Punjab, is that it is Senior Superintendent of Police who is competent authority to make appointment to non-gazetted rank of Sub Inspectors etc. and, therefore, is competent authority to order pre-mature retirement. The Hon'ble Supreme Court in State of Punjab and others Vs. Manohar Lal (supra) has been pleased to lay down as under: - "6. On considering the provisions of the aforesaid rules it is quite clear and apparent that the Senior Superintendent of Police, Gurdaspur being the competent authority to make the appointment to the non-gazetted ranks of Sub- Inspectors, is also legally competent to pass the order of compulsory retirement of the plaintiff- respondent in public interest in accordance with R.S.A. No. 1108 of 1992 (O&M) -11- the provisions of Rule 3(1)(a) and (b) of the said rules. It has been tried to be contended by referring to the provisions of Rule 13.9, Sub-rule (2) by the respondent wherein it has been provided that substantive promotion to the rank of Assistant Sub-Inspector is to be made by the Deputy Inspector General of Police in accordance with the principles prescribed in Rule 13.1. that the Superintendent of Police is not the competent authority to make the impugned order. It is only the Deputy Inspector General of Police who is competent to make the order of compulsory retirement in question. This argument cannot be sustained in view of the specific provisions made in Rule 12.1. wherein it has been provided that the Superintendent of Police is competent to make the appointment to the non-gazetted ranks of Sub-Inspectors of Police and Assistant Sub-Inspector of Police. On a reading of both these provisions of the Rules 12.1. and 13.9(2) it is clear and apparent that the Senior Superintendent of Police, Gurdaspur is legally competent to make the impugned order of compulsory retirement of the plaintiff respondent from service in public interest after his attaining 50 years of age in accordance with the provisions of Rules 3(1)(a) of the Punjab Civil Services (Premature Retirement) Rules, 1975." Reliance was also placed on the judgment of Division Bench of this Court in Gurbax Singh Vs. State of Punjab and others, 2006(3) SCT 649 where again it was held that appointing authority/dismissing authority of Sub-Inspector was SSP, wherein this Court was pleased to lay down as under: - R.S.A. No. 1108 of 1992 (O&M) -12- "10. The second argument raised by Mr. Bhan too required to be rejected. Undoubtedly, certain observations in Ashok Kumar's and Ram Lal's case (supra), do not support his case. We, however, find that Ram Lal's case wa based on a concession. Moreover, a contrary view has been taken by the Hon'ble Supreme Court in Balkar Singh's case and Manohar Lal's case. In this case, the promotion had been made by the Deputy Inspector-General of Police whereas the order of dismissal/compulsory retirement had been made by the Senior Superintendent of Police. The Hon'ble Supreme Court observed that as per Rule 12.1. and 16.1. of the Punjab Police Rules, the appointing authority/dismissing authority was the Senior Superintendent of Police and merely because the Deputy-Inspector General of Police had made an order of promotion would not change the statutory rules i.e. of the Police Rules. This is what the Court said in Manohar Lal's case (supra): - "On considering the provisions of the aforesaid rules it is quite clear and apparent that the Senior Superintendent of Police, Gurdaspur being the competent authority to make the appointment to the non-gazetted ranks of Sub-Inspectors, is also legally competent to pass the order of compulsory retirement of the plaintiff-respondent in public interest in accordance with the provisions of Rule 3(1)(a) and (b) of the said rules. It has been tried to be contended by referring to the provisions of Rule 13.9, Sub- rule (2) by the respondent wherein it has R.S.A. No. 1108 of 1992 (O&M) -13- been provided that substantive promotion to the rank of Assistant Sub-Inspector is to be made by the Deputy Inspector General of Police in accordance with the principles prescribed in Rule 13.1. that the Superintendent of Police is not the competent authority to make the impugned order. It is only the Deputy Inspector General of Police who is competent to make the order of compulsory retirement in question. This argument cannot be sustained in view of the specific provisions made in Rule 12.1. wherein it has been provided that the Superintendent of Police is competent to make the appointment to the non-gazetted ranks of Sub-Inspectors of Police and Assistant Sub-Inspector of Police. On a reading of both these provisions of the Rules 12.1. and 13.9(2) it is clear and apparent that the Senior Superintendent of Police, Gurdaspur is legally competent to make the impugned order of compulsory retirement of the plaintiff respondent from service in public interest after his attaining 50 years of age in accordance with the provisions of Rules 3(1)(a) of the Punjab Civil Services (Premature Retirement) Rules, 1975." Mr. S.K. Sharma, learned counsel appearing on behalf of the respondent, on the other hand opposed the contentions raised by the learned Additional Advocate General, Punjab, qua limitation on the ground that once the finding of the learned trial Court holding the suit to be within limitation was not challenged before the learned lower R.S.A. No. 1108 of 1992 (O&M) -14- appellate Court, it is not open to the State to raise this plea in the regular second appeal. It is also the contention of the learned counsel for the respondent/plaintiff that the suit could not be said to be barred by limitation as in pursuance to the void order, the plaintiff lost his right to claim wages and, therefore, it gave recurring cause of action to the appellants. In support of this contention, reliance has been placed on the judgment of the Hon'ble Supreme Court in Madhav Laxman Vaikunthe Vs. State of Mysore, AIR 1962 Supreme Court 8(1) where the Hon'ble Supreme Court has held that the suit for arrears of salary of Government servant is governed by Article 102 of the Limitation Act, 1908. However, this judgment cannot be even remotely connected to the case in hand. The learned counsel for the repondent/plaintiff placed reliance on the judgment of the Hon'be Supreme Court in Ujagar Singh Gill Vs. U.O.I. and others 1994(1) S.C.T. 744 to contend that the cause of action to claim arrears of salary arises on the date when it is told that the salary will not be paid for entire period. It is again not understood that how this judgment is relevant to determine whether the suit filed by the plaintiff was within limitation. The learned counsel for the respondent/plaintiff thereafter placed reliance on the judgment of this Court in Malkiat Singh Vs. State of Haryana, 2008(2) SLR 192 to contend that stoppage of increments in violation of natural justice gives a concurrent cause of action every month and technial objection of limitation cannot frustrate such claims. The contention of the learned counsel for the respondent was R.S.A. No. 1108 of 1992 (O&M) -15- that once the order of compulsory retirement was bad in law, and held to be void it gave concurrent cause of action to the plaintiff. This Court in the case of Malkiat Singh Vs. State of Haryana (supra) has been pleased to lay down as under: - "11. In view of my detailed discussion on the basis of the law laid down by the Apex Court in cases Madhav Laxman Vainkunthe V. State of Mysore (supra) and P.L. Shah V. Union of India and another (supra) I am also to observe that in case of State of Punjab and others V. Gurdev Singh and Ashok Kumar (supra) the point with regard to the recurring cause of and continuous loss when the order of increment with cumulative effect is passed was not raised before the Apex Court rather the observation of the Apex Court in Gurdev Singh's case (supra) in para No. 4. "that court's function on the presentation of the plaint is imply to examine whether, on the assumed facts, the plaintiff is within time. The Court has to find to out when the "right to sue" accrued to the plaintiff helps the case of the appellant which regard to the recurring loss and continuous cause of action which arises every month when the salary is received by him. Rather I am of this opinion that the right to sue accrues to