Regular Second Appeal No.1223 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1223 of 1994 Date of Order: 30th September , 2008 Ander singh, A.S.I(Retd.) ...Appellant Versus State of Haryana ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. K.G.Chaudhary, Advocate for the appellant. Mr. Ajay Chaudhary, DAG, Haryana. RAJIVE BHALLA, J (Oral). The appellant, challenges judgments and decrees dated 29.11.1991 and 10.02.1994 passed by Sub Judge 2nd Class, Karnal and by Additional District Judge, Karnal, respectively dismissing the suit and his appeal.. The appellant was enrolled as a Constable in the Punjab Police on 10.07.1948. On 09.07.1983, he was compulsorily retired from service with effect from 10.07.1983. The appellant alleges that a writ petition filed before the Hon’ble High Court, challenging his compulsorily retirement, was disposed of on 18.01.1990, with a direction to the respondents to decide his representation. As the representation was rejected on 23.01.1990, the appellant filed the present suit, praying that the order of compulsorily retirement, be set aside. The respondents resisted the suit and raised a preliminary objection that as the order was communicated to the appellant on 10.07.1983, the suit was barred by limitation. On merits, it was denied Regular Second Appeal No.1223 of 1994 -2- that the order of compulsorily retirement violated any provisions of law, the principles of natural justice or the provisions of Punjab Police Rules, 1934. On the basis of the pleadings, the learned trial Court framed the following issues:- 1. Whether the order dated 09.07.1983 passed by the Superintendent of Police, Karnal whereby the plaintiff was retired from the service at the age of 55 years is illegal, malafide, and against the rules of natural justice?OPP 2. Whether the adverse remarks entered in the Annual Confidential Reports of the plaintiff for the period from 05.08.1982 to 31.03.1983 be expunged? OPD 3. Whether the suit is time barred?OPD 4. Whether the plaintiff has no cause of action? OPD 5. Relief. After a perusal of the pleadings, an appraisal of the evidence and the arguments addressed by counsel for the parties, the learned trial court decreed the suit by holding that the order of compulsorily retirement was illegal and void and as there was no limitation for filing a suit to challenge a void order the suit could not be dismissed as barred by time. The State of Haryana filed an appeal. The Additional District Judge, Karnal, affirmed the finding that the impugned order was void, but accepted the appeal, reversed the trial Court's judgment and dismissed the suit by holding that the suit was barred by limitation. The first appellate Court relied upon a judgment State of Punjab and others v. Gurdev Singh Ashok Kumar A.I.R. 1991 S.C. 2219 to hold that if the order of compulsorily retirement was void, the suit filed on 28.07.1990 was barred by limitation. Regular Second Appeal No.1223 of 1994 -3- Counsel for the appellant submits that as a void order does not exist in law it can be ignored and any challenge to its validity cannot be dismissed as barred by time. As the first appellate Court affirmed the trial courts finding that the order of compulsorily retirement was void it should not have dismissed the suit as barred by limitation. Reliance for the above submission is placed upon a judgment of the Hon’ble Supreme Court of India reported as State of Madhya Pradesh v. Syed Qamarali 1967 S.L.R. 228. It is further submitted that even otherwise the suit is not barred by time. The appellant filed a writ petition, which was disposed of vide order dated 18.01.1989, directing the respondent to decide the appellant’s representation. The representation was decided on 20.12.1989 and the suit was filed on 28.07.1990. The suit, therefore, could not be dismissed as barred by time. Counsel for the respondent, on the other hand submits that even as held by the Hon’ble Supreme Court in Gurdev Singh Ashok Kumar’s case(supra), a void order, has to be challenged, before a Court of competent jurisdiction, within the prescribed period of limitation. The judgment in State of Madhya Pradesh v. Syed Qamarali (1967) 1 S.L.R. 228 relied by counsel for the appellant was considered in Gurdev Singh Ashok Kumar’s case (supra) and was distinguished on facts. It is, therefore, asserted that the first appellate Court rightly accepted the appeal and dismissed the suit as barred by limitation. I have heard counsel for the parties and perused the judgments and decrees. The question of law that arises for consideration and as framed by the counsel for the appellant is:- “1. Whether there is a period of limitation for impugning a void order? 2. Whether the first appellate Court committed an error in Regular Second Appeal No.1223 of 1994 -4- reversing the trial Court’s judgment by holding that the suit was barred by limitation?” The facts, having been narrated herein above do not merit repetition except to the extent that the order of compulsorily retirement was served upon the appellant on 10.07.1983 but the suit was filed on 29.07.1990. In State of Punjab and others v. Gurdev Singh Ashok Kumar A.I.R. 1991 S.C. 2219 (supra) while considering a similar, if not an identical controversy, the Hon’ble Supreme Court held that a void order has defacto operation and must, therefore, be declared to be void or a nullity by a Court of competent jurisdiction or otherwise it would continue to operate. A party aggrieved by such an order would, therefore, have to approach a Court for a relief of declaration that the order is ineffective and not binding upon his rights within the period of three years as prescribed under Article 113 of the Limitation Act. The first appellate Court based its opinion that the suit was barred by limitation on the above judgment. The submission by counsel for the appellant that a void order may be ignored as it has no legal existence and may, therefore, be impugned before a court of law at any time, was considered and rejected in State of Punjab and others v. Gurdev Singh Ashok Kumar (supra). The judgment referred to by counsel for the appellant namely State of Madhya Pradesh v. Syed Qamarali (supra) was considered in State of Punjab and others v. Gurdev Singh Ashok Kumar and was distinguished on facts. Another argument, that the decision on the representation decided pursuant to the High Court's order dated 20.12.1989 gives rise to a fresh cause of action, is misconceived. The appellant filed a writ petition without disclosing that two earlier representations had already been rejected. This cynical and dishonest ploy Regular Second Appeal No.1223 of 1994 -5- used by the appellant to surreptitiously obtain an order from the High Court must be deprecated and would not revive the period of limitation that had already expired. In view of what has been stated herein above and in view of the aforementioned answer to the substantial questions of law framed by counsel for the appellant, I find no reason to interfere with the judgment and decree passed by the Additional District Judge, Karnal, the appeal is consequently dismissed with no order as to costs. September 30, 2008 (RAJIVE BHALLA) nt JUDGE