R.S.A.No. 3639 of 2005 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3639 of 2005 (O&M) Date of decision: 6.1.2011 Gurdev Singh Ex.Constable ......Appellant Versus State of Punjab and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.D.S.Nalwa, Advocate, for the appellant. Mr.Satish Bhanot, Addl.A.G.Punjab. **** SABINA, J. Plaintiff had filed a suit for declaration, which was decreed by the Civil Judge (Jr.Divn.) Jalandhar vide judgment and decree dated 21.8.1998. In appeal, the said judgment and decree were set aside by the Additional District Judge, Jalandhar vide judgment and decree dated 9.2.2002. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the Civil Judge R.S.A.No. 3639 of 2005 (O&M) 2 (Jr.Divn.) Jalandhar, in para Nos. 2 and 3 of impugned judgment, are as under:- “2.Briefly stated the facts of the case as made out from the pleadings are that the plaintiff was working as Head Constable in Jalandhar District and was allotted No.1815. He was permanent employee of defendant and was entitled to protection under Punjab Police Rules 1934 and Article 311 of the Constitution of India. The services of the plaintiff were terminated by the orders of SSP Janaldhar vide order No.1651-58/860 dated 17.8.87. The plaintiff had alleged that this order is liable, malafide against the provisions of law and no charge sheet was given to him, no enquiry was conducted and no show cause notice was given to the plaintiff. The impugned order has been passed without complying with the provisions of Rule 16.24 and 16.38 of Punjab Police Rules. The punishing authority violated the provisions of Rule 16.19 of Police Rules which provides that the police officer charged with criminal offence shall be placed under suspension from the date on which he is sent for trial. Thus, the order passed by the punishing authority by not placing the plaintiff under suspension till the decision of the trial, but straightway terminate of his service is void. The plaintiff was acquitted by the court of Shri S.K.Chopra, learned R.S.A.No. 3639 of 2005 (O&M) 3 Additional Judge designated Court, District Jail, Nabha vide his judgment dated 2.8.1990. In pursuant of the judgment, plaintiff sent legal notice calling upon the defendant to set aside the impugned order and accept his appeal, but the defendant did not bother, hence, the plaintiff filed civil writ petition which was heard by the Hon'ble Mr.Justice K.P.Bhandari and Hon'ble Mr.Justice M.R.Agnihotri and they were pleased to direct that the revision/appeal pending before the DIG of Police should be disposed of within a period of six months. In pursuance of the orders of Hon'ble High Court, the defendant No.2 passed an order dated 25.7.1991 which is also void on the ground that it is contrary to the directions of Hon'ble High Court and the order is non- speaking order and the Appellate Authority could not take the ground of limitation for dismissing the appeal because vide order dated 4.2.1992 of Hon'ble High Court, the appeal of the plaintiff was deemed to be within limitation. Hence, the present suit. 3. Notice of the suit was given to the defendant who put in appearance and filed written statement contesting the suit of the plaintiff. They have taken the preliminary objections that the suit is time barred and is not maintainable in the present form and the plaintiff has R.S.A.No. 3639 of 2005 (O&M) 4 no cause of action to file the present suit. On merits, it is admitted that the plaintiff was working as Head Constable and was allotted No.1815. They have alleged that the work and conduct of the plaintiff was highly objectionable as he has links with hard core terrorists. The plaitiff was dismissed from service under Article 311 (2) (b) of the Constitution of India vide order No.1651-58 dated 17.8.87 passed by defendant No.3 which is the legal order. It is averred that since the plaintiff had links with anti social elements. He was helping their unlawful activities in Punjab. It was not practicable to hold departmental enquiry or serve charge sheet or show cause notice. As the plaintiff was dismissed from service under Article 311 (2) (b) of constitution of India, there was no need to comply with the provisions of Rule 16.24 and 16.38 of Punjab Police Rules. They have further alleged that plaintiff was acquitted from case Fir No.105/87 by the Court of Shri S.K.Chopra. Learned Additional Judge, designate Court because the witnesses did not depose against him, because they apprehended danger to their lives and as such, he was given benefit of doubt the plaintiff did not file any appeal except the representation dated 11.2.1991 which was rejected by the defendant No.2 being time barred. It is further alleged tht defendant R.S.A.No. 3639 of 2005 (O&M) 5 No.2 has fully honoured the directions of the Hon'ble High Court while deciding the representation of the plaintiff within a period of six months and only representation dated 11.2.1991 was received in the office of defendant No.2 and they have prayed for dismissal of suit with costs. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to be declaration as prayed for ? OPP 2. Whether the suit is time barred? OPD 3. Whether the suit is not maintainable in the present form ? OPD 4. Whether no cause of action has accrued to the plaintiff ? OPD 5. Relief.” Learned counsel for the appellant has submitted that the suit filed by the plaintiff-appellant was not barred by limitation as the plaintiff-appellant had filed the suit within three years of his acquittal by the criminal court. The services of the appellant could not be terminated without holding a departmental enquiry. Learned State counsel, on the other hand, has submitted that the suit filed by the plaintiff was barred by limitation. Plaintiff was indulging in anti social activities and due to this reason, the impugned R.S.A.No. 3639 of 2005 (O&M) 6 order was passed without holding a departmental enquiry. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The impugned order was passed by the punishing authority on 17.8.1987 (Ex.P-1). The plaintiff was dismissed from service and it was held that it was not reasonably practical to hold an enquiry in a manner provided under the Rules as the plaintiff was indulging in anti social and anti national activities. The plaintiff has filed a suit on 20.4.1992 challenging the order dated 17.8.1987 Ex.P-1. The suit filed by the plaintiff was hopelessly barred by limitation. The suit could have been filed by the plaintiff within three years of the passing of the impugned order. It has been held in, State of Punjab Vs. Gurdev Singh Ashok Kumar 1991(5) S.L.R. 1, as under:- “ It will be clear from these principles, 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.” Once the limitation for filing a suit has begun to run, the same does not stop. The fact that the plaintiff was acquitted in the R.S.A.No. 3639 of 2005 (O&M) 7 criminal case would not extend the period of limitation. Moreover a perusal of the order Ex.P-1 reveals that the plaintiff was removed from service on the allegation that he was associating with desperate anti social and anti national elements in their unlawful activities. Hence, the argument raised by learned counsel for the appellant that the plaintiff could file the suit within three years from his acquittal in the criminal case is without any basis. Since the suit of the plaintiff was barred by limitation, learned Additional District Judge had rightly dismissed the suit of the plaintiff. Plaintiff has also failed to prove that he had filed an appeal in September 1990 against the impugned order. Moreover, as per Rule 16.30 of the Punjab Police Rules, an appeal could have been filed within a month from the passing of the impugned order. Learned counsel for the appellant has pleaded parity with the case of Harbhajan Singh, whose suit was decreed by the trial Court and appeals were dismissed by the lower appellate Court and by this Court and thereafter, the Special Leave petition was dismissed by the Apex Court. However, in the said case, the point qua limitation was not raised by the State, whereas, in this case, the point qua limitation has been duly agitated by the State. No substantial question of law arises in this regular R.S.A.No. 3639 of 2005 (O&M) 8 second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 06, 2011 anita