R.S.A. No. 1128 of 1993 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1128 of 1993 Date of decision: 22.05.2009 Jangir Singh ....appellant versus The State of Punjab ....respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Ajay Pal Singh, Advocate, for the appellant. Mr. R.L. Gupta, Addl. A.G., Punjab. *** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 15.1.1993 passed by the learned lower appellate Court dismissing the suit filed by the plaintiff/appellant for declaration to challenge the order withholding clearance of efficiency bar, by holding the suit to be barred by limitation. R.S.A. No. 1128 of 1993 -2- The plaintiff filed a suit by pleading that he was working as Accountant in the office of Manager, Government Handicrafts Centre, Sangrur, when an order was passed by the Director of Industries on 16.12.1980, declining his case for crossing efficiency bar w.e.f. 1.7.1978. The plaintiff/appellant was denied the raise of his pay from Rs.700/- to Rs.725/-. The challenge was also to the order dated 14.7.1987 passed by the Joint Director Administration Industries, Punjab, vide which his case regarding crossing of efficiency bar w.e.f. 1.7.1978 was ordered to be deferred for one year more. The orders were said to be illegal, without authority, ultra vires the rules and powers, therefore, nullity. The plaintiff sought declaration that he was entitled to cross efficiency bar w.e.f. 1.7.1978 at the stage of Rs.700/- and also at the stage of Rs.850/-. He also prayed for consequential relief. The plaintiff was working in the pay scale of Rs.570-15-600- 20-700/25-850/30-1000-40-1080 w.e.f. 1.1.1978. On revision of pay his basic pay was fixed at Rs.680/- per month w.e.f. 1.1.1978. The plaintiff/appellant was allowed one special increment w.e.f. 8.2.1978 for not taking part in the general strike and his pay was raised to Rs.700/- per month w.e.f. 8.2.1978. On 1.7.1978 the plaintiff/appellant was due to cross efficiency bar, but no orders were passed. It was only on the representation made by the plaintiff/appellant that order dated 16.12.1980 was passed by the Director of Industries, Punjab, informing him that office after consideration of representation was unable to allow him to cross efficiency bar. After passing of order dated 16.12.1980, the plaintiff/appellant R.S.A. No. 1128 of 1993 -3- was chargesheeted for mis-conduct on 15.7.1982. The mis-conduct alleged was that for the years 1964-65, 1965-66, 1966-67, 1973-74, 1974-75, 1975-76 and 1976-77 his work was not found satisfactory and also that during the year 1978-79, he had not obeyed the orders of the head office. The reading of the chargesheet itself showed that this was a totally frivolous chargesheet, issued for extraneous consideration. The plaintiff/appellant submitted detailed reply to the chargesheet. Finding the explanation to be unsatisfactory, inquiry officer was appointed to hold inquiry. The plaintiff/appellant participated in the inquiry. The inquiry officer conducted last hearing on 15.7.1983. Thereafter no inquiry was held nor the plaintiff/appellant was supplied with inquiry report, and that no action was proposed on the said inquiry. The plaintiff/appellant thereafter was served with a show cause notice for pre-mature retirement, and in pursuance thereto he was finally ordered to retire on 2.8.1988. It is the case of the plaintiff/appellant that he had preferred separate appeal against said order of pre-mature retirement. This Court for the present is not concerned with the order of pre-mature retirement, as it is not subject matter of dispute in this suit. On 14.7.1987 another order was passed stopping the plaintiff/appellant from crossing the efficiency bar for another one year. The said order was also impugned by claiming it to be in continuation of order previously passed in the year 1980. In the written statement number of objections were taken, including that the suit was barred by limitation, and that the order being administrative in nature, could not be subject to judicial scrutiny by the R.S.A. No. 1128 of 1993 -4- civil Court. It was also the case set up by the defendant/respondent that the order had been passed after going through the record, as the plaintiff did not have 50% good reports, therefore, his case for crossing efficiency bar was rightly rejected. On the pleadings of the parties, the learned trial Court was pleased to frame the following issues: - "1. Whether the order No. P- 2/24/62/DIC/19497-C dated 16.12.80 of the Director of Industries, and dated 14.7.87 of Joint Director are illegal, void, without authority etc? OPP 2. Whether the suit is within limitation? OPP 3. Whether the suit is bad for non-joinder of necessary parties? OPD 4. Whether the notice under Section 80 CPC is not legal? OPD 5. Whether the plaintiff is entitled to declaration prayed for? OPP 6. Relief." On appreciation of evidence, specially annual confidential reports, which read as under: - "Sr. No. Year Category 1. 1966-67 Deserve promotion 2. 1967-68 Deserve encouragement & good 3. 1968-69 Co-operative/Good 4. 1969-70 Satisfactory/Average 5. 1970-71 Fair/Average 6. 1971-72 Average 7. 1972-73 Fair/Good & Fit for promotion 8. 1973-74 Good/Average 9. 1977-78 Good/Average R.S.A. No. 1128 of 1993 -5- 10. 1978-79 Good/Average 11. 1979-80 Average 12. 1980-81 Average 13. 1981-82 Average 14. 1982-83 Average 15. 1983-84 Good 16. 1984-85 Good/Average 17. 1985-86 Honest/Good/Average 18. 1986-87 Good/Average" Learned trial Court held that the impugned orders dated 16.12.1980 and 14.7.1987 were illegal, and without authority of law. The learned trial Court decided issue No. 2 in favour of the plaintiff/appellant, in view of law laid down by the Hon'ble Supreme Court in Madras Port Trust Vs. Hymaushu International, 1979 S.C. Weekly Reporter 45, wherein the attitude of the Government and public authorities of raising technical plea of limitation for defeating the legitimate claim was deprecated. The learned trial Court also held that the challenge was to order dated 14.7.1987, which dealt with the case of the plaintiff for crossing of efficiency bar, therefore, it could not be said that the suit was time barred. Issues No. 4 and 5 were not pressed, therefore, decided against the defendant/respondent. On issue No. 5 it was held that the plaintiff was entitled to injunction. Consequently, the suit filed by the plaintiff was decreed. In appeal, the learned lower appellate Court has been pleased to reverse the judgment and decree passed by the learned trial Court for two reasons. Firstly, that the suit filed in the year 1988 to challenge the R.S.A. No. 1128 of 1993 -6- order dated 16.12.1980 Ex. P-19 was barred by limitation as cause of action had accrued to the plaintiff/appellant on 16.12.1980, whereas suit was filed eight years thereafter. The learned lower appellate Court further held that in view of the judgment of the Hon'ble Supreme Court in State of Punjab Vs. Gurdev Singh Ashok Kumar, AIR 1991 Supreme Court 2219 even void orders were required to be challenged within a period of three years and held that the suit to be barred by limitation. The learned lower appellate Court further held that withholding of efficiency bar was not a quasi- judicial but purely administrative order, therefore, it was not permissible for the Court to go behind the order of administrative nature, and held that the suit framed was not competent. The judgment and decree passed by learned trial Court was ordered to be set aside and the suit filed by the plaintiff/appellant stands dismissed. The learned counsel appearing on behalf of the appellant contends that the appeal raises the following substantial questions of law: - "1. Whether the arbitrary administrative order involving civil consequences can be gone into by the civil Court? 2. Whether an order of lower Court which is perverse on the face of it is liable to be set aside in regular second appeal? 3. Whether the order dated 14.7.1987 is in violation of Rule 4.8. Note 3 of the Punjab Civil Services Rules?" In support of the substantial questions of law, the learned counsel for the appellant contends, that the judgment and decree passed R.S.A. No. 1128 of 1993 -7- by the learned lower appellate Court is on the face of it perverse, in holding that the suit filed by the plaintiff/appellant to be time barred. The learned lower appellate Court had failed to notice that the order of stoppage of efficiency bar was reviewed on 14.7.1987 though it was required to be reviewed annually. Furthermore, once the order dated 14.7.1987 was the subject matter of challenge, the learned lower appellate Court could not hold the suit to be time barred, therefore, the finding recorded by the learned lower appellate Court cannot be sustained. It is also the contention of the learned counsel for the appellant that the order stopping the crossing of efficiency bar by holding that the plaintiff/appellant did not have 50% good reports, is on the face of it perverse, as the annual confidential reports brought on record show that more than 50% of the reports of the plaintiff/appellant were good. The learned lower appellate Court has further failed to notice, that it was not open to the plaintiff/appellant to challenge the order dated 16.12.1980 in view of the fact that he was chargesheeted on a specific charge which were subsequently not proved. The learned counsel for the appellant also contends that the learned lower appellate Court fell in error in holding that the administrative order could not be gone into by the civil Court, by ignoring that the administrative order impugned affected his civil right. The order on the face of it was perverse being outcome of mis-reading of confidential reports, therefore, could not be sustained in law. On consideration, I find force in the contentions raised by the learned counsel for the appellant. The reason given in the order R.S.A. No. 1128 of 1993 -8- declining the crossing of efficiency bar was, that the plaintiff/appellant did not have 50% good reports, which was factually incorrect as the ACRs reproduced above would show that the plaintiff/appellant had more than 50% good reports and further there was no adverse entry in his annual confidential reports. In totality of the circumstances, the orders impugned were illegal, therefore, are not sustainable in law. The civil suit was maintainable. The learned lower appellate Court committed an error in holding, that the suit filed by the plaintiff/appellant was barred though it was proved that by order dated 14.7.1987, his efficiency bar was stopped for one year. Once that order is held to be illegal then it was incumbent upon the authorities to have considered his case from due date. In any case, the suit could not be said to be barred by limitation, as held by the learned lower appellate Court. The finding of the learned lower appellate Court, that the administrative order cannot be challenged in civil Court, is also not sustainable in law. If the administrative order affecting the civil rights is patently illegal and arbitrary, in that event the jurisdiction of the civil Court to interfere is not barred. The only bar is, in a case where there is material on record which has been considered by the competent authority and opinion from which cannot be said to be perverse or arbitrary, then the civil Court cannot substitute its opinion. The civil Court can hold an order, which is arbitrary, on the face of it or is perverse to be sustainable in law, even though administrative in nature. The substantial questions of law raised are answered in favour R.S.A. No. 1128 of 1993 -9- of the appellant. The appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set aside and that of learned trial Court is restored, but with no order as to costs. (Vinod K. Sharma) Judge May 22, 2009 R.S.