REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 21, 2010 Darshan Singh .....Appellant VERSUS The State of Punjab ....Respondent CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Gurcharan Singh, Advocate, for the appellant. (in R.S.A. No.2175 of 1992) Mr. Punit Jindal, Advocate, for the appellant. (in R.S.A. No.2176 of 1992). Mr. Praveen Chander Goyal, Addl.A.G., Punjab, for the State. **** RANJIT SINGH, J. Both Regular Second Appeal Nos.2175 of 1992 (Darshan Singh Vs. The State of Punjab) and 2176 of 1992 (Mohinder Singh Vs. The State of Punjab) are being disposed of together as common question of law is involved in these appeals. Both the appellants while working as Conductors were REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 2 }: terminated and had challenged their respective order of termination. FACTS-R.S.A. NO.2175 OF 1992 Appellant Darshan Singh, who was appointed as Conductor on 9.9.1970, had proceeded on sanctioned leave upto 6.11.1978. He had then applied for extension of leave as he could not resume duty. As per appellant, Darshan Singh, he was not informed about non- sanction of his leave and under bonafide belief that it stood extended and sanctioned, he continued to avail his leave. However, when he came back to rejoin duty he was informed that he had already been terminated on 28.12.1978. The appellant would plead that this order was communicated to him and he had accordingly challenged the same on the ground that no charge sheet was issued to him and no enquiry was held, which was essential legal requirement under the Punjab Civil Services (Punishment and Appeal) Rules. Respondent-Department appeared and raised an objection about the maintainability of the suit on the ground that it was barred by limitation. Plea also was that the civil Court at Jalandhar did not have the jurisdiction to try the suit and that it was bad for non-joinder of necessary parties. The order of termination was justified by pointing out that the same was passed after following rules of natural justice wherein the appellant was informed through registered letters that he was being treated as absent from duty. He was also given an opportunity before passing the order, it is claimed. On the basis of pleadings, following issues were framed:- “1. Whether the impugned order dated 28.12.1978 is illegal and void” OPP 2. Whether suit is barred by limitation? OPP REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 3 }: 3. Whether Civil Court at Jalandhar has no jurisdiction? OPP 4. Whether notice u/s 80 C.P.C. has not been served upon defendant? OPP 5. Whether suit of plaintiff is bad for non-joinder of necessary parties? OPP 6. Relief.” The suit was decreed on 29.8.1991, aggrieved against which the State had filed appeal, which was allowed on the ground that the suit was barred by limitation and even if the order was void, the suit could only be filed within the period of limitation as prescribed. Appellant, Darshan Singh, has, thus, filed Regular Second Appeal No.2175 of 1992. FACTS-R.S.A. NO.2176 OF 1992 Services of appellant Mohinder Singh were terminated on 8.8.1977. As per the appellant, he had also proceeded on a sanctioned leave upto 12.5.1977 and could not join back on the expiry of the said leave period. His plea also was that he did not receive any intimation about rejection of his prayer for extending the leave and that the order of termination was never communicated to him. Appellant Mohinder Singh had, thus, challenged his termination on similar grounds that he was never charge sheeted, no enquiry was held etc. and that the punishment awarded was harsh. The respondent Department had filed a reply, raising a plea that the suit was barred by limitation and that no notice under Section 80 CPC was served before filing the suit. Respondents would plead that the appellant had abandoned his job of his own REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 4 }: accord by remaining willfully absent from duty. As per the stand in the reply, the appellant had not proceeded on any sanctioned leave and rather he was absent w.e.f. 13.5.1977 without any leave, information or prior permission. It was, thus, submitted that the question of sanctioning or non-sanctioning the leave did not arise in this case as no leave application was ever submitted by the appellant. In fact, appellant had been directed to resume duty through a registered letter dated 24.5.1977 but he failed to do so. Thereafter, a show cause notice was issued to him through a registered letter dated 13.6.1977 to explain the reasons of his absence. He was also called to resume duty through publication of notices in the news paper like Tribune and Akali Patrika of dated 12.7.1977 and 13.7.1977 and in Nawan Zaman dated 14.7.1977. Despite all this, the appellant did not resume duty and accordingly action had followed. On the basis of pleadings, following issues were framed:- “1. Whether the order dated 8.8.87 of the defendant is illegal, void and is liable to be set-aside? OPP 2. Whether the plaintiff is entitled to declaration prayed for? OPP 3. Whether the suit is within limitation? OPP 4. Whether a valid notice under Section 80 C.P.C. has been issued before filing the suit?OPP 5. Relief.” The Trial Court dismissed the suit on merits as well as on the ground that the suit was barred by limitation by observing that the limitation would be attracted in this case as the order passed by the REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 5 }: punishing authority was neither void nor illegal. The Court also viewed that no injustice had been done to the appellant as he himself had voluntarily abandoned his post and did not avail opportunities afforded to him to explain his conduct. It was also observed that the appellant did not join his duties despite notice through publication. Thus, there was no equity in his favour. The appellant accordingly filed an appeal against the same. The Appellate Court, however, took a different view and held that the impugned order was liable to be struck down as the termination could not have been ordered with retrospective effect and that the authorities could not pass an order effecting the civil rights. It was also observed that the order was passed in violation of the procedural requirements laid down in Rule 8 of the above Rules. Accordingly, the finding by the Trial Court, upholding the order was set-aside. However, the finding of the Trial Court that the suit was barred by limitation was affirmed by the first Appellate Court. Appellant, Mohinder Singh has accordingly filed Regular Second Appeal No.2176 of 1992. The questions of law that would arise in these case s is as to whether the suits were barred by limitation and that whether the plea of limitation would apply to those cases even where the order is void? Both the appellants were non-suited in view of the law laid down by the Hon'ble Supreme Court in the case State of Punjab and others Vs. Gurdev Singh, (1991) 4 SCC 1. Mr.Gurcharan Singh, learned counsel appearing in R.S.A. No.2175 of 1992, has very fairly and forthrightly submitted that in view of the law laid down in Gurdev Singh's case (Supra), he would REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 6 }: have nothing much to say. Mr.Puneet Jindal, appearing in R.S.A. No.2176 of 1992, however, still insisted on making submission and has urged that the impugned order was never communicated to the appellant and hence, the limitation could be counted from the date the order was either so communicated or it came to the knowledge of the appellant. He would also submit that even if limitation was to apply, the suit could be decreed by granting arrears restricting these to 38 months prior to the date of filing of the suit and the suit in entirety could not have been dismissed. In support, he has referred to Raghubir Jha Vs. State of Bihar and others, 1986 (Supp.) Supreme Court Cases 372 and State of Punjab and others Vs. Kulbir Singh, (1977) 11 Supreme Court Cases 394. In Gurdev Singh's case (supra), the Hon'ble Supreme Court has clearly held that suit for declaring the order of dismissal from the service of an employee even if it is ultra-vires, unconstitutional and against the principles of natural justice and, thus, void would be subject to limitation period prescribed under Article 113. It is further observed that the period of three years would start running from the date of passing of the order or where the departmental appeal or revision filed, then from the date of dismissal of such appeal or revision. While taking this view, the Hon'ble Supreme Court has over-ruled the contrary view expressed by this Court in cases like State of Punjab Vs. Ajit Singh, (1988) 1 SLR 96 and State of Punjab Vs. Ram Singh, (1986) 3 SLR 379. Supreme Court noticed that this Court has been taking a view that there is no limitation for instituting the suit for declaration by dismissed or discharged employee on the ground that dismissal or discharge was REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 7 }: void or inoperative. Over-ruling the view, the Supreme Court has observed:- “6. 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 or 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 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 prescribed 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 of 1908) is a residuary article for cases not covered by any other provisions in the Act. It REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 8 }: 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.Bolo v. Mt. Koklan and (ii) Gannon Dunkerley and Co. Ltd. V. Union of India) AIR 1930 PC 270 and AIR 1970 SC 1433.” The Court then went on to consider the case by assuming that order of dismissal was void, inoperative and ultra-vires and not voidable and has held:- “........but none the less the impugned dismissal order has atleast a de facto operation unless and until it is declared to be void, or nullity by a competent body or a Court.” The observation of Lord Radcliffe in Smith V. East Elloe Rural District Council, (1956) 1 All ER 855, which are to the following effect, are also noticed:- “An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity on its fore-head. Unless the necessary REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 9 }: proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.” The reliance placed on the case of State of M.P Vs. Syed Qamarali, (1967) 1 SLR 228 (SC), where it was held that the suit is not governed by limitation, is also examined. In Syed Qamarali's case (supra) the Court has observed as under:- “We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under Section 7 could be exercised, is totally invalid. The order of dismissal had therefore no legal existence and it was not necessary for the respondent to have the order set aside by a court. The defence of limitation which was based only on the contention that the order had to be set aside by a court before it became invalid must therefore be rejected.” In regard to above observations in Syed Qamarali's case (supra), the Hon'ble Supreme Court observed as under in Gurdev Singh's case (supra):- “12.These observations are of little assistance to the plaintiffs in the present case. This Court only emphasized that since the order of dismissal was invalid being contrary to para 241 of the Berar Police Regulations, it need not be set aside. But it may be noted that Syed Qamarali brought the suit within the period of limitation. REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 10 }: He was dismissed on December 22, 1945. His appeal against the order of dismissal was rejected by the Provincial Government on April 9, 1947. He brought the suit which has given rise to the appeal before the Supreme Court on December 8, 1952. The right to sue accrued to Syed Qamarali when the Provincial Government rejected his appeal affirming the original order of dismissal and the suit was brought within six years from that date as prescribed under Article 120 of the Limitation Act, 1908.” The Hon'ble Supreme Court approved the ratio of law laid down in Jagdish Prasad Mathur Vs. United Provinces Government, AIR 1956 All 114 and Abdul Vakil Vs. Secretary of State, AIR 1943 Oudh 368, where it was viewed that that the order of dismissal, even if void is governed by Article 120 of Limitation Act. The contrary decision by this Court in the cases of Ajit Singh and Ram Singh (supra) were over-ruled being not correct view. There is, thus, no scope of debate that even the void order etc. would be governed by limitation. The reliance placed on Kulbir Singh's case (supra) by counsel for the appellant (Mohinder Singh), appears a bit misplaced as the Hon'ble Supreme Court in this case has followed Gurdev Singh's case (supra). The issue in this case was only with regard to the arrears of salary, which arose in execution proceedings and the plea that the arrears would be allowed for the entire period from the date of termination was not approved and it was held that it has to be confined to the period falling within limitation for such suit. While REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 11 }: taking this view, reliance was placed on Gurdev Singh's case (supra) as can be noticed from the following observations:- “The view of the High Court that a distinction has to be made between an order of termination which is illegal and an order which is null and void and that the question of limitation does not arise in cases where the order of termination is null and void cannot be sustained in view of the decision of this Court in State of Punjab v. Gurdev Singh, wherein this Court has laid down that a suit for declaration that an order of dismissal or termination from service passed against the dismissal employee is wrongful, illegal and ultra vires is governed by Article 113 of the Limitation Act, 1963 and it cannot be said that there is no limitation for instituting the suit for declaration in such cases. The claim of the respondent for salary could, therefore, be confined to the period falling within the period of limitation prescribed for such a suit, i.e. Three years and two months prior to the date of filing of the suit and the High Court could not give a direction for payment of salary for the entire period from the date of the passing of the order of termination of the services of the respondent.” The issue of limitation to challenge the void order was not directly under consideration in the case of Kulbir Singh (supra). In Raghubir Jha's case (supra), it is observed that limitation is to be counted from the date of communication of the revisional order but this aspect also would be of no assistance as from the pleadings, REGULAR SECOND APPEAL NO.2175 OF 1992 :{ 12 }: nothing is made out as to on which date the order came to the knowledge of the appellant for him to take support from the observation made in this case. The submission that this order was never communicated to appellant Mohinder Singh, can not be accepted as he had challenged the said order by filing a suit, which was instituted on 18.8.1987 but was numbered as 181 of 1990. The falsity of this plea is clearly made out from the cross-examination of appellant Mohinder Singh, where he admitted that he had been doing some job during all these years. The Court had, thus, rightly observed that the appellant perhaps was better placed and was earning better and had, thus, voluntarily not joined the duties. Since the appellant had been sent registered notices and thereafter notices were published in the newspapers as well, he can not be heard to say that he had not learnt about the orders. The appellant would be deemed to be served through publication. In addition, it may have to be considered if the communication of the order is essential for the dismissal order to be effective or it becomes effective the moment the same is passed. The appellant would have no justification to not to report for duty for over a period of ten years and work somewhere else and then come back to claim that the order of termination was never conveyed to him. No justification, thus, is seen to interfere in the impugned order. Both the Regular Second Appeals are, therefore, dismissed. May 21, 2010 ( RANJIT SINGH ) khurmi JUDGE