R.S.A.No. 1673 of 2008(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1673 of 2008(O&M) Date of Decision:July 31, 2009 Devender Kumar Pal ---Appellant versus State of Haryana and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Yogesh Chaudhary,Advocate, for the appellant *** SABINA J. Plaintiff – Devender Kumar Pal had filed a suit for declaration with consequential relief of mandatory injunction. Civil Judge ( Junior Division), Karnal vide judgment and decree dated 27.11.2006 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by Additional District Judge (Fast Track Court), Karnal vide judgment and decree dated 7.11.2007. Hence, the present appeal. The facts of the case as noticed by the learned Additional District Judge(Fast Track Court), in paras 2 to 4 of its judgment read as under:- R.S.A.No. 1673 of 2008(O&M) {2} “The facts giving rise to the present appeal are that the appellant-plaintiff filed a suit for declaration with consequential relief of permanent injunction to the effect that the order dated 23.1.1992 passed by defendant No. 2 and the endorsement No. 7/11/84-ENF-5/4239-41 dated 26.3.1996 issued by defendant No. 2, order dated 14.2.1997 passed by the Financial Commissioner and Secretary Co-operative Department, Haryana Chandigarh and endorsement No. 478-C- 497/4062 dated 26.2.97 issued by defendant No. 2 are illegal, void, arbitrary, nonest, void, ab-initio, mala fide, against the principle of natural justice and not binding upon the legal rights of the plaintiff and further a decree for declaration to the effect that the plaintiff be deemed to be in service from the date of joining in the year 1964 till 30.6.97, the date of retirement on superannuation and the plaintiff is entitled to re-fixation of his pay and other service benefits along with arrears of pay with interest and a consequential relief of mandatory injunction directing the defendants to take the plaintiff in service back from the date when he was illegally and unlawfully removed from service and re-fix the pay of the plaintiff and consequential benefits of service with arrears of pay along with interest @ 24% per annum from the due date till the date of realization of the amount. It has been alleged that the plaintiff was appointed by the then State of Punjab in the year 1964 through Subordinate Services Selection Board, Punjab. Initially the plaintiff was posted as Industrial Sub Inspector R.S.A.No. 1673 of 2008(O&M) {3} Handloom Co-operative Societies at Ambala. In the year 1984 the services of the plaintiff were transferred at Kurukshetra and he was posted as Sub Inspector Co-operative Societies (M/s) at Kurukshetra vide order dated 8.2.1984 against the vacant post. The plaintiff had hardly worked on the said post for about seven months at Kurukshetra, he was placed under suspension vide order dated 10.9.84 by the Defendant No. 3 Shri Sagta Ram, the then Deputy Registrar, Co-operative Societies, Kurukshetra. The plaintiff submitted a detailed representation to the higher authorities against the illegal and unlawful act of the defendant No. 3 at Kurukshetra and the said complaint of the plaintiff came to the knowledge of defendant No. 3 who got prejudice against the plaintiff and started causing harassment and with a motive to take revenge of the complaint of the plaintiff against him. The plaintiff received a letter dated 29.10.1984 from defendant No. 2 and he was asked to verify the contents of the complaint and then accordingly the plaintiff submitted an affidavit duly attested in support of the allegations levelled in the said complaint by the plaintiff against the defendant No. 3. It has been alleged that the plaintiff was getting salary of Rs. 200/- less per month since 1.4.1976, which caused financial harassment and mental torture due to the illegal and unlawful act of the defendant No. 3. The plaintiff received a memo No. 5447 dated 17.12.1984 under Rule 7 of Punjab Civil Services Punishment and Appeal Rules, 1952 along with the statement of allegations. It has been R.S.A.No. 1673 of 2008(O&M) {4} further alleged that the charge sheet itself is illegal and is liable to be cancelled on the grounds that it was issued under Rule 7 of the Punjab Civil Services Punishment and appeal Rules, 1952, but at that time the punishment and Appeal Rules, 1952 were repelled by the Gazette notification of the government. The charge sheet was issued by the defendant No. 3 without application of mind and without considering the status of the plaintiff in the office. Earlier also the defendant No. 3 suspended the plaintiff on 16.7.1982 and during that period also the plaintiff was not given subsistence allowance during the period he remained under suspension and thus the family of the plaintiff put at the stage of starvation due to illegal and unlawful act of the defendant No. 3. The plaintiff was astonished to see the letter dated 20.7.1985 issued by the defendant No. 3 whereby a show cause notice was given to him proposing the penalty of removal from service. The plaintiff submitted a detailed reply to the show cause notice on 11.8.1985 and further requested the defendants No. 1 and 2 to release the subsistence allowance for the period during which he remained under suspension. The subsistence allowance was paid to the plaintiff for the period 9.84 to 4.85 vide letter No. 2415 dated 27.6.1985. The plaintiff vide representation dated 27.6.86 requested the defendants to give him personal hearing and the defendant No. 2 gave a personal hearing to the plaintiff on 25.8.86 vide his letter dated 7.8.86. However, the plaintiff was further surprised to see letter dated 25.9.91 whereby a R.S.A.No. 1673 of 2008(O&M) {5} show cause notice was served upon him proposing the punishment of removal from service of the plaintiff. It has been further alleged that the appeal in an other criminal case against the plaintiff was decided by the learned Addl. Sessions Judge, Kurukshetra on 5.7.1992 and the plaintiff was acquitted of the Criminal Charge. This fact was brought to the notice of the appellate authority by the plaintiff but was not considered. It has been alleged that the appeal was rejected by Shri S.K.Miglani, Financial Commissioner and Secretary Co-operative Department Haryana in an arbitrary manner since the appellate authority itself was not in a position to decide the matter on merits at that time because he was upset due to his family circumstances. The defendants also did not consider the length of service of the plaintiff since 1964 to 1996 i.e. 32 years as a good career and honest person in Government Service. The plaintiff against submitted a representation to the Financial Commissioner to and Secretary Co-operative Department Haryana Chandigarh who issued letter dated 14.2.1997 clarifying the earlier order dated 6.3.96. This order dated 14.2.1997 was issued by Smt. Rajni Rajdhan I.A.S. Financial Commissioner and Secretary Co-operative Department Haryana, Chandigarh. The plaintiff issued a legal notice under Section 80 C.P.C. to the defendants on 25.9.2001 through registered post, but no reply was received, hence he left with no other option but to file the suit. The defendants appeared through counsel and filed R.S.A.No. 1673 of 2008(O&M) {6} joint written statement taking preliminary objections that the suit is not maintainable in the present form and at that the suit is time barred. On merits it has been submitted that the plaintiff had committed serious irregularities and was charge sheeted on the charges of (a) Embezzlement of Rs. 1634/- from the funds of Karnal Co-operative society (b) misuse of post ( c) willful absence from duties (d) insubordination (e) Negligence in performance of duties (f) To make direct correspondence to the higher authorities which is violation of Government Servant Conduct Rules and (g) disobedience. It has been alleged that after thorough inquiry and giving personal hearing and full opportunity to the plaintiff, all the allegations were found to have been proved and hence the plaintiff was removed from service, after observing all required formalities. It has been alleged that the version of the plaintiff that he was getting less salary of Rs. 200/- per month since 1.4.76 is wrong as the period from 5.10.70 to 25.5.76 was not treated as a period spent on duty for the purpose of pay, leave, pension, increment or any other official purpose. It was submitted that at the time of issuing charge sheet i.e. as on 17.12.1984, the defendant No. 3 was competent to issue charge sheet to the plaintiff and the case of the plaintiff was thoroughly inquired into and decisions were taken on merits by defendants No. 1 and 2 impartially, after giving full opportunity to the plaintiff. It has been alleged that the plaintiff was given many opportunities by the R.S.A.No. 1673 of 2008(O&M) {7} Inquiry Officer but the willfully did not participate in the inquiry proceedings and the Inquiry Officer completed the inquiry on the basis of the record. The appeal of the plaintiff was rejected by the Financial Commissioner and Secretary to Government of Haryana, Co-operative Department in a judicious manner keeping in view the facts and circumstances of the case and after giving opportunity to the plaintiff. It has been alleged that the order of dismissal of the plaintiff dated 23.1.1992 issued on 23.7.1992 were sent to his place of posting at Raipur Rani and not a Karnal. Further orders dated 26.3.1986 and 14.2.1997 were sent to the plaintiff c/o Shri Sadhu Ram Postman, Head Post Office, Karnal because this temporary address was available and these orders have also been served on the plaintiff on the above temporary address. Hence it was prayed that there was no ground to file the suit at Karnal which is liable to be dismissed.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the order dated 23.1.92 passed by defendant No. 2 and order dated 14.2.1997 passed by Financial Commissioner and Secretary are illegal, null and void and not binding on the rights of the plaintiff? OPP (2)Whether the plaintiff is entitled to be deemed to in service from the date of joining in the year 1964 till 3-0.9.97, the date of retirement on superannuation? OPP (3)Whether the plaintiff is entitled to re-fixation of his pay and R.S.A.No. 1673 of 2008(O&M) {8} other service benefits with interest 25% OPP (4)Whether the suit is time barred? OPD (5)Relief After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Admittedly services of the plaintiff were dismissed on 23.1.1992. Plaintiff preferred an appeal and the same was rejected by the Financial Commissioner and Secretary to Government Haryana, Cooperation Department vide order dated 14.2.1997. However, plaintiff filed a suit on 11.12.2001 beyond the period of limitation. Hon'ble the Apex Court in the case of The State of Punjab and others v. Gurdev Singh Ashok Kumar 1991(5) SLR 1 has held as under:- “ 4. First of all, to say that the suit is not governed by the law of Limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed “period of Limitation” must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence. Section 2 (J) defines the expression “period of limitation” to mean the period of limitation prescribed in the Schedule for suit, appeal of application. Section 2 (J) also defines “prescribed period” to mean the period of limitation computed in accordance with the provisions of the Act. The Court's function on the presentation R.S.A.No. 1673 of 2008(O&M) {9} of plaint is simply to examine whether, on the assumed facts, the plaintiff is within time. The court has to find out “when the right to sue” accrued 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 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 and others(AIR 1930 P.C. 270) and (ii) Gannon Dunkerley and Co. v. The Union of India (AIR 1970 S.C. 1433). 11. The Allahabad High Court in Jagdish Prasad R.S.A.No. 1673 of 2008(O&M) {10} Mathur and ors. vs. United Provinces Government (AIR 1956 All 114) has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void, is governed by Article 120 of the Limitation Act. A similar view has been taken by Oudh Chief Court in Abdul Vakil vs. Secretary of State and anr. (AIR 1943 Oudh 368). That in our opinion is the correct view to be taken. A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act. The decision to the contrary taken by the Punjab & Haryana High Court in these and other cases (State of Punjab v. Ajit Singh (1988(1) SLR 96) and (ii) State of Punjab v. Ram Singh (1986(3) SLR 379) is not correct and stands overruled.” In these circumstances, both the courts below had rightly held that the suit of the plaintiff was time barred and had rightly dismissed the same. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 31, 2009 PARAMJIT