RSA No.810 of 1989 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.810 of 1989 Date of decision: December 09, 2010. State of Haryana, through Collector, Hissar ...Appellant(s) v. Ram Singh s/o Nathu Ram ...Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri K.C. Bhatia, Additional Advocate General, Haryana for the appellant(s). Shri R.N. Singal, Advocate, for the respondent. Kanwaljit Singh Ahluwalia , J. (Oral): Present appeal has been preferred by the State of Haryana – defendant to the suit filed by Ram Singh – respondent. Plaintiff-respondent, Ram Singh, filed a suit for declaration that he is in continuous service of the State and is entitled to all benefits as if there is no order of termination or dismissal. In the plaint, it was stated that Ram Singh, plaintiff was appointed on 11.1.1979 as T-Mate in the pay scale of Rs.35-1-45 on regular basis in the office of Sub Divisional Officer, Canal Lining Mechanical Sub Division No.13-, Hissar. It was further pleaded that he continued in service till 31.5.1982 when he was placed under suspension and an enquiry was ordered against him. The grievance was made that neither the authorities RSA No.810 of 1989 -: 2 :- have revoked the suspension nor conducted any enquiry and not even an order of termination or dismissal has been passed. It is stated that no charge sheet or list of allegations was served or supplied upon the plaintiff- respondent, enquiry was not conducted, no opportunity of hearing was afforded and no show cause notice was issued regarding any proposed action. The State of Haryana filed reply and stated that plaintiff was never appointed on regular basis. He was a work-charge employee. He continued to work upto 17.12.1982. His services were terminated by the Executive Engineer, Canal Lining Mechanical Division No.5, Hissar and there was serious allegation against the petitioner that he has driven government truck in an unauthorized manner and he was caught red handed while causing pilferage of the cement in the truck on 15.12.1982. He admitted his guilt before the Executive Engineer and therefore, his services were terminated on 17.12.1982 after enquiry was conducted. The trial Court, after completion of the pleadings, had formulated the following issues:- 1. Whether the plaintiff continues to be in the service of the defendant and is entitled to all benefits whatsoever? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the Civil Court has no jurisdiction? OPD 4. Whether the suit of the plaintiff is time-barred? OPD 5. What is the effect of not giving the legal notice as required? OPD 6. Whether the suit is bad for non-joinder of necessary parties?OPD RSA No.810 of 1989 -: 3 :- 7. Relief. Dharam Pal PW1 produced the record regarding the service of the plaintiff-respondent. He has stated that no appointment letter was issued to the plaintiff. He has further stated that plaintiff-respondent was caught red handed and a letter Ex.P-1 was issued to him. A perusal of Ex.P-1 reveals that the same was addressed to SDO, Canal Lining Mech. Sub Division No.13, Hissar by Executive Engineer, Canal Lining Mech. Division No.5, Hissar to the effect that Executive Engineer, Inspection and Central Division, Hissar had found truck bearing No.HRL-1294 standing at Bahbalpur Cement Store and in the same four cement bags were loaded and they were taken away from the government store and explanation of the Junior Engineer was sought. This letter further stated that till further orders, plaintiff-respondent, who was posted as Cleaner, should not be allowed to drive any vehicle. Plaintiff-respondent himself appeared as PW2 and stated that neither any charge sheet was issued nor any enquiry was held, therefore, he was wrongly removed from service. A perusal of Ex.P2 reveals that SDO has submitted his enquiry report. This is a carbon copy of the report. The report states that plaintiff-respondent was posted as a Cleaner; he was having a driving licence; he could drive the vehicle in public interest; however, he has misused the truck. DW1 Bhagwan Dass Gupta has proved Ex.D4 statement of the plaintiff-respondent, recorded by him. It is stated that in this statement, the plaintiff-respondent had admitted his guilt. On issue No.1, a finding was returned by the trial Court that principles of natural justice were not followed; enquiry report Ex.D2 and termination order, on the basis of the report Ex.D3, were not supplied to the RSA No.810 of 1989 -: 4 :- plaintiff-respondent. He was deprived to represent his case before the Enquiry Officer and, thus, the termination order is illegal. Regarding issues No.2 and 3, no argument was advanced by the plaintiff-respondent. On issue No.4, a plea was raised by the appellant-defendant that the suit is barred by limitation as it was filed after five years of the termination. This issue was decided in favour of the defendant and against the plaintiff- respondent and it was held that the suit is barred because of limitation. Aggrieved against the same, the plaintiff-respondent filed an appeal. The first appellate Court reversed the finding on issue No.4 and relied upon State of Punjab through Collector, Patiala and others v. Jagdish Ram Mittal, 1988 SLJ 840, to hold that principles of natural justice were not followed; no show cause notice was served upon the plaintiff; no enquiry was held, therefore, the order of termination was void. It was concluded that since no enquiry was conducted, no limitation can be prescribed and, thus, the appeal was accepted and decree, as prayed, was granted. According to Counsel for the State, following substantial question of law arises for consideration of this Court:- “Whether in view of the provisions of Limitation Act, suit was barred by limitation or not?” Having formulated the above stated question, Counsel for the State has placed reliance upon State of Punjab and others v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219 to state that the case squarely falls under residuary Article 113 of the Limitation Act, and the period of limitation will be three years to challenge the order of termination. Counsel for the State has laid emphasis on following portion of the above stated judgment:- “4. ... The Court has to find out when the "right to sue" accrued RSA No.810 of 1989 -: 5 :- to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall 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 of 1908) is a residuary 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 instituted (See : (i) Mt. Bole v. Mt. Koklam, AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. v. -Union of India, AIR 1970 SC 1433).” Even though the residuary Article 113 is invoked against the plaintiff-respondent, this Court cannot become oblivious of the fact that the principles of natural justice have not been followed in stricto senso. It is RSA No.810 of 1989 -: 6 :- the categoric case of the plaintiff-respondent that he was suspended from the service; no charge sheet was served upon him, no enquiry was held and no order of termination was passed and served upon him. The appellant- defendant has failed to prove service of termination order upon the plaintiff- respondent. Furthermore, the order of termination has been passed on the basis of the statement allegedly suffered by the plaintiff-respondent before Bhagwan Chand JE. Only photo copy of the statement has been exhibited as Ex.D4. Even Bhagwan Dass Gupta has stated that this statement was made by the plaintiff-respondent, no enquiry was held and no opportunity was given to the plaintiff-respondent to cross examine Bhagwan Dass Gupta before the Enquiry Officer to prove that no such statement was made by him. Shri Singal has stated that mere passing of order of termination is not sufficient, that order should be conveyed to the employee also. Reliance has been placed upon Union of India and others v. Dinanath Shantaram Karekar and others, 1998(3) RSJ 714, wherein it was held that the actual service of the order upon the employee must be proved. In view of the above discussion, there is no merit in the present appeal and the answer to the substantial question formulated is that period of limitation shall commence from the day order of termination was served upon the employee. From facts, it emerges that the said order was not served upon the plaintiff-respondent. Hence, there is no merit in the present appeal. Same is dismissed. [Kanwaljit Singh Ahluwalia] December 09, 2010. Judge kadyan