SA/446/1982 1/26 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 446 of 1982 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= DISTRICT PANCHAYAT - Appellant Versus VASANTGAURI WIFE OF BABUALA DAVE & 1 - Defendants ========================================================= Appearance : MR DEEP D VYAS for Appellant : 1, MRS SANGITA PAHWA WITH MR PM THAKKAR for Defendant : 1, NOTICE SERVED for Defendant: 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 28/08/2008 CAV JUDGMENT 1. The appellant, District Panchayat, original defendant No. 1 in Regular Civil Suit No. 242 of SA/446/1982 2/26 JUDGMENT 1973 assailed the order dated 16.8.1982 passed by the Appellate Court in Regular Civil Appeal No. 34 of 1978 reversing the judgment and order passed by learned Trial Court and decreeing the suit in favour of plaintiff – present respondent No. 1 and declaring that the impugned order passed by the Administrative Officer, Rajkot bearing No. 1747 dated 9.8.1971 was void, inoperative and without jurisdiction and that the plaintiff continued in service of defendant No. 1 at 60% of emoluments instead of full wages. 2. Facts in brief deserve to be set out in order to appreciate the controversy. 3. The plaintiff, as per his say, was a transferred Government servant to Panchayat on formation of the Panchayat. The plaintiff was working as Primary Teacher at relevant time. The plaintiff proceeded on half day leave on 13.1.1971 and as he was not found in the school, the concerned School Inspector, who visited the school, orally informed the authority not to permit the plaintiff to resume his duties without further orders. The Administrative Officer, in his letter dated 22.1.1971 to the T.D.O instructed that the plaintiff be asked to give an undertaking that he would be regularly attending the school before he was permitted to resume his duties. The Administrative Officer under his SA/446/1982 3/26 JUDGMENT letter No. 1747 dated 9.8.1971 terminated the plaintiff's service and ordered recovery of Rs.31.62/-. The plaintiff therefore, contended that the impugned order, terminating his service was bad in law, inoperative and not binding upon him and same was void-ab-initio. The order was passed without any inquiry is violative of Article 311 of the Constitution and therefore, the same was bad. The plaintiff's leave application dated 24.1.1969 had not been taken into consideration. The plaintiff was prevented from attending the duties on account of ailment of his daughter. The plaintiff, therefore issued notice under Section 320 of the Gujarat Panchayat Act but as nothing happened thereafter, he was constrained to issue one more notice under Section 80 of the Code of Civil Procedure and ultimately, he was constrained to file suit being Regular Civil Suit No. 242 of 1973 challenging the order No. 1747 dated 9.8.1971 passed by Administrative Officer, Rajkot. 4. The defendant No. 1 i.e. present appellant resisted the suit by filing written statement at Exh. 16 interalia contending that the plaintiff's suit was not bonafide and was barred by provisions under Section 320 of Gujarat Panchayat Act. It was also contended by defendant No. 1 in the said suit that plaintiff had also not given mandatory notice as required SA/446/1982 4/26 JUDGMENT under Section 320 of the Gujarat Panchayat Act and therefore, on that count also the suit was barred. The defendant No. 1 has categorically denied that the plaintiff was on deputation in defendant No. 1 Panchayat and that but the plaintiff was not a permanent employee and he was only a temporary employee serving in defendant no. 1 and not on deputation from Government and therefore, under Section 311 of the Constitution of India, inquiry was not necessary. According to defendant No. 1, the plaintiff had availed of unauthorized leave and he remained absent without getting the leave sanctioned and therefore, such a temporary employee, who remained on unauthorized leave for long, can be terminated without any inquiry. The defendant No. 1 did not want to avail of service of the plaintiff and ultimately on the ground of general unsuitability the plaintiff was discharged from service by order of termination simplicitor and not by way of punishment and so also the provisions of Article 311 of the Constitution did not apply. 5. The defendant No. 2 – State of Gujarat filed written statement at Exh. 17 stating therein that the plaintiff was never on deputation to the Panchayat nor was the plaintiff a civil servant. The defendant No. 2 denied the legality and validity of the service of notice under Section 80 of the C.P.C and ultimately, the SA/446/1982 5/26 JUDGMENT defendant no. 2 prayed that the plaintiff was not entitled to any of the relief prayed by him in the plaint. 6. The trial Court framed issues at Exh. 18. The trial Court ultimately, came to the conclusion that the plaintiff's suit was barred under the provisions of Section 320 of the Gujarat Panchayat Act and dismissed the suit on 18.4.1978. 7. Being aggrieved and dissatisfied with the aforesaid judgment and decree dated 18.4.1978, the original plaintiff preferred the Regular Civil Appeal No. 34 of 1978 before the learned Second Extra Assistant Judge, Rajkot District, Gondal. The appellate Court after framing 5 issues allowed the appeal as stated hereinabove and decreed the suit and granted declaration as prayed for vide order dated 16.8.1982. The original defendant No. 1 preferred the present appeal assailing the same. 8. This Court (Coram: G.T. Nanavati, J.)(As His Lordship then were) on 20.1.1983 framed the following substantial question of law and admitted the Appeal. “Whether the lower appellate Court has committed an error in holding that the suit of the plaintiff is not barred by SA/446/1982 6/26 JUDGMENT limitation under Section 320 of the Gujarat Panchayat Act, 1961 and Section 62 of the Bombay Primary Education Act, 1947? The respondent No. 1 expired during the pendency of the Appeal and therefore, vide order dated 9.10.2007, his heirs and legal representatives were ordered to be taken on record. 9. Learned counsel appearing for the appellant has submitted that the suit was clearly time barred and therefore, the appellate Court ought not to have interfered with the judgment and order of the trail Court dismissing the suit. The counsel for the appellant has further submitted that close reading of provisions of Section 320 of the Gujarat Panchayat Act as well as the provisions of Section 62 of the Bombay Primary Education Act, 1947, would certainly go to show that the suit filed by the plaintiff was clearly time barred. He submitted that the plaintiff was terminated on 9.8.1971 and the plaintiff has filed Regular Civil Suit on 3.9.1973 and therefore, admittedly the suit was filed beyond the period of limitation prescribed under Section 320 of the Gujarat Panchayat Act as well as under Section 62 of the Bombay Primary Education Act. As the suit was beyond the time of limitation, the trial Court has rightly rejected the suit and appellate court ought not SA/446/1982 7/26 JUDGMENT to have interfered in the same. He also submitted that the substantial question of law as to whether the suit was filed beyond the period of limitation deserves to be decided in favour of the appellant, as the facts speak for themselves in the present case and submitted that order of appellate Court deserves to be quashed and set aside and the appeal deserves to be allowed. 10.Ms. Pahwa, learned counsel appearing for respondent has resisted the appeal and relying upon Section 63 of the Bombay Primary Education Act and Section 320 of the Gujarat Panchayat Act, submitted that the suit can be said to be within time as the aforesaid sections would have no applicability as action impugned was void-ab- initio and cannot be said to be an action taken in furtherance of the provisions of the Act. It is submitted that since the dismissal order was passed on 9.8.1971, plaintiff gave notice to District Panchayat on 26.12.1971, the said notice was served on panchayat on 3.1.1972. The said notice was within six months from the date of cause of action. The suit filed by plaintiff is within limits prescribed as per Section 320 of the Gujarat Panchayat Act, 1961. It is submitted that as per Section 320(2) of Gujarat Panchayat Act to the Panchayat and as per Section 320(3) of the said Act, every such cause of action shall be commenced within 6 months SA/446/1982 8/26 JUDGMENT after accrual of cause of action. It is submitted that Sub.Section 3 of Sec. 320 of the Act contemplates commencement of “such” action within 6 months. It is submitted that such word has to necessarily have connection with Section 320(2) of the Gujarat Panchayat Act. It is therefore, submitted that action of giving notice is commencement of action as contemplated under Section 320(2) of the Act. It is submitted that thus, as per Sec. 320 (3) notice has to be given within six months of accrual of cause of action. It is submitted that since notice is given within 6 months of dismissal the action have commenced within prescribed period as provided in Sec.320 (3) of the Act and therefore, suit was filed in the limitation. It is submitted that suit of the plaintiff is filed within the period of limitation as provided in Sec. 62(1) of Bombay Primary Education Act, 1947. It is submitted that sec. 62(1) of the Act say that no suit shall commence without giving one month previous notice in writing or after six months from the date of action complained of. It is submitted that word or contemplates any one action either one month previous notice or in absence of said notice, 6 months for institution of proceedings. It is submitted that in the present case since 1 month previous notice is already given, provision of period of 6 months do not apply. It is therefore, submitted that plaintiff has filed the suit SA/446/1982 9/26 JUDGMENT within the limit prescribed under Section 62 of the Act. Assuming without admitting that plaintiff has not filed the suit within the limits prescribed as per Sec. 320 of the Gujarat Panchayat Act and Sec. 62 of Bombay Primary Education Act then also since the action of dismissal was without notice and inquiry and is not done under act or not have purported to have been done under the Gujarat Panchayat Act, 1961 and Bombay Primary Education Act, 1947 and therefore, Sec. 320 of the Gujarat Panchayat Act and Sec. 62 of Bombay Primary Education Act would not apply in the present case. 11.It is submitted that plaintiff is dismissed on 8.9.1971 without prior notice or holding inquiry, impugned order is said set to have made as discharge simplicitor but from the written statement it comes out that it is made because of absence of plaintiff and therefore, same is penal in nature. It is submitted that the plaintiff could not have been dismissed without holding inquiry under the provisions of Gujarat Panchayat Act or Bombay Primary Education Act. The plaintiff submits that the action challenged is not made under the Act or purported to have been made under the Act. She has relied on the following judgments : (i)AIR 1966 SC 249 (Constitutional Bench) (ii)AIR 1971 SC 97 SA/446/1982 10/26 JUDGMENT (iii)AIR 1972 SC 2510 (iv)1984 GLH(UJ) 32 12.It is submitted that the plaintiff has filed the suit for declaration that the dismissal order is void and inoperative. It is submitted that for the said action Art. 113 of the Limitation Act, 1963 is applicable. The plaintiff submits that for suit for declaration to the effect that dismissal order was void, no specific period of limitation was provided in any of the articles under the Limitation Act, 1963. It is submitted that earlier in Limitation Act, 1908 where there was no limit provided vide Art.120 limit for the period 6 months was provided. In the Limitation Act, 1963 the earlier Art. 120 of Limitation Act, 1908 has been numbered as Art. 113 of Limitation Act, 1963. It is submitted that Hon'ble Supreme Court has already considered the said aspect and has held that the suit for declaration of dismissal order Art. 113 of the Limitation Act, 1963 and Art. 120 of the Limitation Act, 1908 would apply. It is submitted that to substantiate the aforesaid argument, two judgments of the Hon'ble Supreme Court is relied (i) AIR 1992 SC 111 and (ii) AIR 1971 SC 97 and submitted that the substantial question as framed by this Hon'ble Court is requested to be answered accordingly and appeal is required to be dismissed. SA/446/1982 11/26 JUDGMENT 13.This Court has heard learned counsel for the parties at length and perused the records and proceedings. 14.The substantial question of law with regard to limitation in filing the suit in question could be addressed after adverting to the provisions of Section 320 of the Gujarat Panchayat Act and Section 62 of the Bombay Primary Education Act. Section 320 of the Gujarat Panchayat Act and Section 62 of the Bombay Primary Education Act, 1947 read as under. “Section 320 : Bar of action against panchayat etc. and previous notice before institution (1) No action shall be brought against any panchayat, conciliation panch or Nyaya Panchayat or any member, officer, servant or agent of a panchayat, [any member of a committee of a panchayat], conciliation panch or Nyaya Panchayat, acting under its direction, in respect of anything in good faith done under this Act or any rule or bye-law. (2) No action shall be brought against any panchayat, conciliation panch or Nyaya Panchayat or any member, officer, servant or agent of such panchayat [any member of a SA/446/1982 12/26 JUDGMENT committee of a panchayat], conciliation panch, or Nyaya Panchayat acting under its direction for anything done or purporting to have been done by or under this Act, until expiration of one month next after notice in writing has been left or delivered at the office of the panchayat, conciliation panch or Nyaya Panchayat, and also at the residence of the member, officer, servant or agent thereof against whom the action is intended to be brought, the notice shall, state the cause of action, the nature of the relief sought; the amount of compensation claimed and the name and place abode of the person who intends to bring the action. (3) Every such action shall be commenced within six months after the accrual of cause of action and not afterwards. (4) If any panchayat, conciliation panch, Nyaya Panchayat or person to whom the notice under Sub-section (2) is given shall, before an action is brought, tender sufficient amount to the plaintiff, and pay into Court the amount so tendered, the plaintiff shall not recover more than the amount so tendered; the plaintiff shall also pay all costs incurred by the defendant after such tender. SA/446/1982 13/26 JUDGMENT Section 62 of Bombay Primary Education Act, 1947: (1) No suits, prosecution or other legal proceedings shall be commenced against any school board or authorized municipality or a servant thereof or any person acting under the orders, of the said board or municipality for anything done; or purporting to have been done in pursuance of this Act, which entitles or requires a school board, authorized municipality, members, officer, servant as such or other person no acting to exercise any powers or perform duties without giving to such school board authorized municipality, member, officer, servant or person one month's previous notice in writing of the intended action and of the cause thereof, or after six months from the date of the Act complained of. (2) In the case of any such suit for damage if tender of sufficient amount shall have been made before the action was brought, the plaintiff shall not recover more than the amount as tendered, and shall pay all costs incurred by the defendant after such tender.” Thus, the period of limitation as prescribed in SA/446/1982 14/26 JUDGMENT these sections is clearly six months and admittedly the suit has to be filed within the period of limitation as prescribed therein. 15.The Counsel for the respondent-plaintiff has submitted that as the impugned order was passed on 09.08.1971 and the plaintiff issued notice to the District Panchayat on 26.12.1971, i.e. within a period of six months, and to State Government on 22.09.1972 and Suit was filed on 03.09.1973 and the Panchayat received the Notice on 03.01.1972 the suit could be said to have been filed in time prescribed in Section 320 of the Panchayat Act 1961 as the Section 320(3) provides fix months time for bringing such action against the Panchayat and action of giving notice to the Panchayat is commencement of such action as stipulated under Section 320(3) and hence suit could not be said to be time barred under provisions of Section 320 of the Panchayat Act. 16.This Court is unable to accept the submission of the Counsel for the plaintiff that issuance of notice within period of six months from the date of accrual of the cause of action would amount to commencement of bringing action as envisaged under Section 320 (3) of the Panchayat Act 1961. The plain and simple reading of the provisions of Section 320 of the Panchayat Act 1961 clearly shows that ‘commencement of such action’ means SA/446/1982 15/26 JUDGMENT instituting of suit or any other proceedings in Court or other appropriate forum established under law against the Panchayat or its officers. Therefore this Court may not have to dwell upon it more elaborately however as the specific contention is taken it deserves to be dealt with and answered. The correct meaning and purport of the phraseology “No action shall be brought” occurring in the beginning of Section 320 (1) and 320 (2) and “Every such action” employed in sub-section (3) of Section 320 of the Panchayat Act 1961 deserve to be set out for appreciating this contention. The Legislature has not used word “action” in isolation to convey its common parlance dictionary meaning of “move” “act” “gesture” “deed” or “doing” but the Legislature has used the phraseology “No action shall be brought” hence the meaning and purport of the wordings “to bring action” as understood and conveyed in common parlances deserve to be invoked for interpreting the provision. To Bring Action means to initiate legal proceedings in Court of law. In the seventh edition of Oxford Advanced Learner’s Dictionary of Current English the word “actionable”, one of adjectives of word “action”, is defined as “giving somebody a valid reason to bring case to court” thus to bring action has attained definite connotation in legal lexicon to mean filing case in Court of law or taking legal action in appropriate forum constituted by and under the law of the land. SA/446/1982 16/26 JUDGMENT The second edition of The Law of Lexicon defines word “actionable” as “subject to, or affording ground for, an action or suit at law; as slander is actionable.” Thus in view of this mere action of issuance of notice to the opponent within six months of the accrual of the cause of action without initiating suit or any proceedings in Court would not amount to “commencing of such action “ as contemplated under provisions of Section 320(3) of the Panchayat Act 1961. 17.The next contention of the Learned Counsel for the plaintiff that suit of the plaintiff is filed within the period of limitation as provided in Sec. 62(1) of Bombay Primary Education Act, 1947. It is submitted that sec. 62(1) of the Act say that no suit shall commence without giving one month previous notice in writing or after six months from the date of action complained of. It is submitted that word “or” contemplates any one action either one month previous notice or in absence of said notice, six months for institution of proceedings. It is submitted that in the present case since one month previous notice is already given, provision of period of 6 months do not apply. It is therefore, submitted that plaintiff has filed the suit within the limit prescribed under Section 62 of the Act. 18.This Court is unable to accept this submission SA/446/1982 17/26 JUDGMENT also on the ground that the provisions of Section 62 of the Bombay Primary Education Act 1947 clearly provides for compliance with two conditions namely any action to be brought only after expire of period of one month from the date of issuance of Notice and secondly action to be initiated only within a period of six months. A close perusal of the entire provision of Section 62(1) of the Bombay Primary Education Act 1947 would clearly show that the word “or”is required to be read as conjunctive rather than disjunctive so as to make both the requirement of essential and not alternative or optional as sough to be canvassed by the learned counsel for the plaintiff. It would be most expedient to refer to similarly cast provisions of Section 120 of the Major Port Trusts Act 1953 which read as under: “120. Limitation of proceedings in respect of things done under the Act : “No suit or other proceeding shall be commenced against a Board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this Act until the expiration of one month after notice in writing has been given to the Board or him stating the cause of action, or after six months after the accrual of the cause of action.” SA/446/1982 18/26 JUDGMENT The Division Bench of this Court in case of UNION OF INDIA AND OTHERS VS. M/S. CARDA MYLIAN SPINNING COMPANY LTD. AND OTHERS, reported in 1985 GLH.724 in para-5 held as under: “para-5 : The Legislature has clearly provided that no suit or any proceedings against the Board or any member of employee thereof can be commenced after lapse of six months from the accrual of cause of action. Before filing such suit or proceeding, notice in writing stating cause of action is required to be given. It further states that no suit or proceedings, notice in writing stating cause of action is required to be given. It further states that no suit or proceedings can be commenced before expiry of one month after notice. When we examine the scheme of the Section it becomes obvious that the Section has been enacted as a measure of public policy with the object of ensuring that before a suit or proceeding is instituted against the Board or any member or employee thereof, it is afforded an opportunity to scrutinize the claim in respect of which the suit or proceeding is proposed to be commenced and if it be found to be a just claim, to take immediate action and thereby avoid unnecessary litigation and save public time and money by settling the SA/446/1982 19/26 JUDGMENT claim without driving the person, who has issued the notice, to institute the suit or proceeding involving considerable expenditure and delay. Therefore, the Section requires that before expiry of one month after notice in writing is given, a suit or proceeding cannot be initiated. Section 120 further provides for a period of limitation of six months for commencing a suit or proceeding against the Board or any member or employee thereof. Therefore, it is apparent that the word 'or' is used in conjunctive sense as a substitute for the word 'and' meaning thereby that no suit or proceedings shall be commenced..... until the expiration of one month after notice in writing .... stating the cause of action and after six months after the accrual of cause of action.