R.S.A. No. 2966 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2966 of 1985 Date of Decision: 23.07.2010 1. State of Punjab through Collector, District Ludhiana, Ludhiana. 2. Director, Industries Department, Punjab, Chandigarh. 3. The Senior Technical Officer, Government Industrial Development-cum-Service Centre (Engineering Goods). ... Appellants Versus Khushi Ram Sharma, Workshop Coolie/Helper, Government Industrial Development-cum-Service Centre (Engineering Goods), Ludhiana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Kartar Singh Sidhu, Deputy Advocate General, Punjab, for the appellants. Mr. S.K. Sharma, Advocate, for the respondent. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgement and decree, dated 07.06.85, rendered by the Court of Additional District Judge, R.S.A. No. 2966 of 1985 2 Ludhiana, vide which, it accepted the appeal and decreed the suit of the plaintiff, against the judgement and decree dated 20.12.82, rendered by the Court of Sub Judge 1st Class, Ludhiana. 2. The facts, in brief, are that, the plaintiff, who was initially appointed, as a daily wager, in the Government Industrial-cum-Service Centre (Engineering Goods) Ludhiana, and was promoted, as workshop coolie, on 30.12.69. He performed his duties, to the satisfaction of the authorities. After lapse of one year, in service, he started contributing towards the provident fund. It was stated that, one day, the plaintiff, was directed by H.L. Monga, Incharge, to do his domestic work, to which, he flatly refused, as a result whereof, his services, were terminated, vide order dated 07.07.73. It was further stated that, the order impugned, was discriminatory, in nature, and, against the provisions of Articles 14 and 16 of the Constitution of India. It was further stated that, even Narinder Singh, and, Shiv Nath, who were juniors to the plaintiff, were still working, in the aforesaid centre. It was further stated that, the order impugned,was against the principles of natural justice, as no opportunity of being heard, was afforded, to the plaintiff, before passing the same. It was further stated that, the order impugned, was passed, by way of punishment, without following the proper procedure, as contemplated, under the Punjab Civil Services (Punishment and Appeal) Rules, 1970. It was further stated that, since the plaintiff, was promoted, against the vacant post of workshop coolie, and, worked as such, for three years, he stood automatically confirmed, R.S.A. No. 2966 of 1985 3 as contemplated under the Rules. The defendants, were many a time asked, to treat the order impugned, as illegal, null and void, but, to no avail. Ultimately, a suit for declaration, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the suit was not maintainable. It was further pleaded that the suit was barred by limitation. It was further pleaded that the suit was bad for mis-joinder of parties. It was further pleaded that no notice, under Section 80 of the Code of Civil Procedure, was given. It was stated that, the plaintiff, used to work, as a daily wager, and, as such, he was not at all holding any post, defined under the Statutory Rules. It was further stated that, the appointment dated 30.12.69, to the post of workshop coolie, was a temporary arrangement, on adhoc basis, and, as such, the services of the plaintiff, were liable to be terminated without notice. It was further stated that, the plaintiff, was working, in the Heat Treatment Section, and, had nothing to do with H.L. Monga, who was not the Incharge thereof. It was further stated that, the order impugned, was passed, as per Rules. It was further stated that, Narinder Singh, was appointed, as peon, on 30.12.69, and, the plaintiff, was also appointed, as workshop coolie, on that date. It was further stated that, the services of an adhoc appointee, could be terminated without any notice and without assigning any reason, whatsoever. It was further stated that, the provisions of Punjab Civil Services (Appeal and Punishment) Rules, 1971, were not applicable, in R.S.A. No. 2966 of 1985 4 this case. It was further stated that the order was not passed by way of punishment. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether termination orders dated 07.07.73 and Director's order dated 03.06.80, are illegal, unconstitutional and void as alleged? OPP (ii) Whether the appeal as required under law was filed by the plaintiff? If not its effect? OPP (iii) Whether the suit is not maintainable under the law? OPD (iv) Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD (v) Whether the Civil Court has no jurisdiction to try the suit? OPD (vi) Whether the suit is barred by limitation and principle of delay and latches? OPD (vii)Whether no valid notice under Section 80 CPC has been served upon defendant? OPD (viii)Whether Narinder Singh, Shri Nath and Sukhdev Singh are junior to the plaintiff? If so, its effect? OPP (ix) What is the effect of promotion and appointment made by office order No. 28, as alleged in para No. 9(1)? OPP (x) Relief. 5. After hearing the Counsel for the parties, and, on going through the record of the case, the trial Court, dismissed the suit of the R.S.A. No. 2966 of 1985 5 plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff (now respondent), which was accepted, by the Court of Additional District Judge, Ludhiana, vide judgement and decree dated 07.06.85. 7. Feeling dissatisfied, the instant Regular Second Appeal, has been filed by the appellants. 8. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law, arise in this appeal, for the determination of this Court:- (i) Whether the first Appellate Court, recorded perverse findings, on misreading and misappreciation of evidence, and law, on the point, that the suit, filed by the plaintiff, on 31.10.80, challenging the order of his termination dated 07.07.73, was within limitation? (ii) Whether the first Appellate Court, recorded perverse findings, on misreading and misappreciation of evidence, that the Punjab Civil Services (Punishment and Appeal) Rules, 1970, were applicable, to the plaintiff/respondent, who was initially appointed, as daily wager and was posted, as a workshop coolie by way of temporary arrangement? (iii) Whether the first Appellate Court, recorded perverse findings, that the order dated 07.07.73, terminating the services of the plaintiff, was stigmatic, and, without affording him an opportunity of being heard and explaining his position, his services, could not be terminated? R.S.A. No. 2966 of 1985 6 10. The Counsel for the appellants, submitted that, the plaintiff/respondent, was initially appointed, as a daily wager. He further submitted that, subsequently, vide order exhibit PX, he was promoted, by way of a temporary arrangement, as a workshop coolie. He further submitted that, ultimately, on 07.07.73, the services of the plaintiff/respondent, were terminated, being no longer required. He further submitted that, the plaintiff/respondent, did not file any appeal or revision, against the order dated 07.07.73, but, only filed a representation, which was not provided by any provision of law, and, as such, the suit, having been filed by him, on 31.10.80, was palpably barred by time. He further submitted that, since the services of the plaintiff/respondent, were never regularized, and, he throughout remained a daily wager, he had no right to any post, and, as such, the provisions of the aforesaid Rules, were not applicable, to him. He further submitted that, the order impugned, exhibit DW3/1, did not cast any stigma, as the services of the plaintiff/respondent, as workshop coolie (on adhoc basis), were terminated, being no longer required by the Centre. He further submitted that, the trial Court, was right, in holding, that the suit, was barred by time, and, that the order, was not stigmatic, nor any legal right, was conferred, upon the plaintiff, to hold any post, but, the first Appellate Court, was wrong, in setting aside the same. He further submitted that the judgement and decree of the first Appellate Court, being illegal, are liable to be set aside. He also placed reliance, on State of Punjab Vs. Gurdev Singh, AIR, 1991 (SC), 2219, R.S.A. No. 2966 of 1985 7 and, Union of India and others Vs. Nand Lal Raigarh, 1996(3), RSJ, 107 (SC), in support of his contentions. 11. On the other hand, the Counsel for the respondents, submitted that, no doubt, initially, the plaintiff/respondent, was appointed, as a daily wager, but, subsequently, he was promoted as workshop coolie, against a vacant post, vide order P1. He further submitted that, after the completion of three years of service, his probation period automatically expired, and, he became a regular employee, and, as such, the provisions of the aforesaid Rules, were applicable, to him. He further submitted that, the order exhibit DW3/1, vide which, his services, were terminated, was illegal, as no inquiry, was held, against him, nor he was given an opportunity of being heard and explaining his position, before passing the same. He further submitted that, the plaintiff, filed an appeal and the comments of the concerned Officer were also called for. He further submitted that the cause of action, accrued to the plaintiff, to file the suit, after the dismissal of his appeal, and, as such, his suit was within limitation. He further submitted that the judgement and decree of the first Appellate Court, being legal and valid, are liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal deserves to be accepted, for the reasons to be recorded, hereinafter. Admittedly, the plaintiff/respondent, was initially appointed, as a daily wager. There is no order, on the file, to the effect, R.S.A. No. 2966 of 1985 8 that his services, at any point of time were regularized. He throughout remained, as a daily wager/adhoc employee. Vide order, copy whereof, is P1, the plaintiff, was promoted, as workshop coolie, purely by way of temporary arrangement, as Gaalif and Bharati Lal, two worshop coolies, were promoted, by way of leave arrangement, as Satpal and Veer Bahadur, skilled workers, proceeded on leave. Since the plaintiff, was only a daily wager, no right, was conferred upon him, to hold a particular post. He could even not be considered, as a temporary employee. Had his services, been regularized, the matter, would have been different. Thus, the order, copy whereof, is DW3/1, by no stretch of imagination, could be said to be casting any stigma, on the plaintiff. Since his services, were not required, as a daily wager workshop coolie, the same,were terminated with immediate effect. The alleged mis- conduct of the plaintiff, if any, was not the foundation of the order, copy whereof, is DW3/1. The same may, at the most, be said to be a motive. The trial Court, was, thus, right in holding that, since the plaintiff, was merely a daily wager, no statutory right vested, in him, to hold any post, under the contract of service or under the service Rules. The employer, had every right, to terminate his services. The trial Court, was also right, in holding, that the order, was not stigmatic, in any way. The first Appellate Court, was, thus, wrong in holding, that the plaintiff, acquired right, to remain in service, and, his services, could not be terminated, except without holding an inquiry. The findings of the first Appellate Court, in this regard, being perverse, are R.S.A. No. 2966 of 1985 9 liable to be set aside. 13. The Counsel for the respondent, however, placed reliance, on K.C. Joshi Vs. Union of India, 1985, AIR (SC), 1046, and, Moti Ram Deka etc. Vs. General Manager, NEF, Railways, Maligaon, Pandu etc., AIR, 1964 (SC), 600, in support of his contentions, that since the plaintiff, completed three years of service, he automatically became a regular employee, and, as such, his services, could not be terminated, except, in accordance with the provisions of the relevant Rules. The facts of the aforesaid cases, clearly go to show, that the same, are distinguishable, from the facts of the instant case. In those cases, the employees, were not daily wagers. They were regular employees, and, their services, had been terminated, by way of punishment, without holding any inquiry. It was, under these circumstances, that the orders, passed therein, terminating the services of the employees, were held to be illegal. No help, therefore, can be drawn, by the Counsel for the respondent, from these cases. The submission of the Counsel for the respondent, therefore, being without merit, must fail, and the same stands rejected. 14. Now coming to the question of limitation, it may be stated here, that the first Appellate Court, was palpably wrong, in holding, that the suit, was within limitation. The order, terminating the services of the plaintiff, was passed, on 07.07.73, and the suit, was filed, on 31.10.80. No statutory remedy of appeal, against the order of termination, if available, was availed of, by the plaintiff. He only filed R.S.A. No. 2966 of 1985 10 one representation, which did not fall within the statutory remedy, available to him, if any. No doubt, the plaintiff, claimed that, he filed a number of representations, but, copies thereof, were not placed and proved, on the record. Representation dated 12.12.78, copy whereof, is P11, was submitted by the plaintiff. Vide P12, he was intimated, that the same stood rejected. P11, was also not an appeal, but, a representation. The period of limitation could not be counted from the date of rejection of representation copy whereof is P11. The period of limitation started running, from the date of passing the order dated 07.07.73. In State of Punjab Vs. Gurdev Singh's case (supra), relied upon, by the Counsel for the appellants, it was held, that even if, an order, is totally illegal and void, the same, can only be challenged, within the period of limitation and not beyond the same. Similar principle of law, was laid down, in Union of India and others' case (supra). Since the period of limitation started running w.e.f. 07.07.73, when the order impugned, was passed, terminating the services of the plaintiff, he could file the suit, within a period of three years and two months (two months' notice period, under Section 80 CPC). The principle of law, laid down, in these cases, is fully applicable, to the facts of the instant case. The suit of the plaintiff, was, thus, palpably barred by time. The trial Court, was right, in holding so, but, the first Appellate Court, was wrong, in holding, that the suit, was within limitation. The findings of the first Appellate Court, in this regard, being perverse are liable to be reversed. R.S.A. No. 2966 of 1985 11 15. The Counsel for the respondent, however, placed reliance, on Mst. Rukhmabai Vs. Lala Laxminarayan and others, AIR, 1960 (SC), 335, State of Punjab Vs. Prem Bhandari, 1994(2), SCT, 140, Raghubir Jha Vs. State of Bihar and others, AIR, 1986, (SC), 508, and, State of U.P. Vs. Ram Murt, 1978(2), SLR, 497, to contend, that the suit, was within limitation. The careful perusal of the facts of the aforesaid cases, goes to show, that the same, are clearly distinguishable, from the facts of the instant case. In the aforesaid cases, either the statutory remedy of appeal or revision, had been availed of, and, the suit, had been filed, within the period of limitation, from the date of decision of the appeal or revision, or, from the date, when the right to sue accrued, in favour of the plaintiff. The ratio of law, laid down, in the cases, relied upon, by the Counsel for the respondent, and referred to in this paragraph, therefore, is of no help, to the respondent. The submission of the Counsel for the respondent, thus, being without merit, must fail, and the same stands rejected. 16. No other point, was urged, by the Counsel for the parties. 17. In view of the above discussion, it is held, that the first Appellate Court, on account of complete misreading and misappreciation of evidence, and law, on the point, recorded perverse findings, that the suit, was within limitation, and, that the plaintiff, was a regular employee, and, as such, his services, could not be terminated, except in accordance with the provisions of the Rules aforesaid, and, that the order was stigmatic. The findings of the first Appellate Court, R.S.A. No. 2966 of 1985 12 thus, being perverse, warrant interference, and, are liable to be set aside. 18. The substantial questions of law, extracted above, are answered, in favour of the appellants. 19. For the reasons recorded above, the appeal, is accepted with costs. The judgement and decree of the first Appellate Court, are set aside, whereas, the judgement and decree of the trial Court, are restored. 23.07.2010 (SHAM SUNDER) Amodh JUDGE