R.S.A.No. 437 of 2000 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 437 of 2000 (O&M) Date of decision: 6.1.2011 Atma 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 Sub Judge-II Class, Jalandhar vide judgment and decree dated 29.11.1994. In appeal, the said judgment and decree were set aside by the Additional District Judge, Jalandhar vide judgment and decree dated 1.6.1999. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the Additional R.S.A.No. 437 of 2000 (O&M) 2 District Judge, Jalandhar, in para Nos. 3 and 4 of impugned judgment, are as under:- “3. The case of the Plaintiff is that the was working as a constable in Jalandhar District and was allotted number 496. the services of the Plaintiff were terminated by the order of the Senior Superintendent of Police , Jalandhar vide order No. 2238-44/Steno dated 20.10.1987. there order of defendant No. 3 is illegal, malafide, against the Principles of natural justice, void and is not binding on the plaintiff vis- a-vis on the grounds that the Plaintiff was not served with any charge-sheet or show cause notice nor any enquiry was conducted that the enquiry has not been done with an ulterior motive. The impugned order has been passed without compelling with the provisions of 16.24 and 16.38 of the Punjab Police Rules. The Punishing Authority violated the provisions of 16. 19 of the Police Rules. The Plaintiff was never given an opportunity of being heard. The Punishing authority acted with a biased mind and played the role of both prosecutor and Judge. The plaintiff was acquitted by the court of Sh. S.K. Chopra, Add. Judge , Designated court, District Jail, Nabha that in pursuance of the receipt of the Judgement of the court of Sh. S.K. Chopra, the plaintiff through his counsel sent a legal notice under section 80 CPC along with the representation of the plaintiff thereby calling upon the defendants to set-aside the R.S.A.No. 437 of 2000 (O&M) 3 impugned order and to accept the appeal of the plaintiff. The defendants did not bother about the notice and ultimately aggrieved against the act of the defendant, the plaintiff filed a writ petition in the Hon'ble High Court of Punjab and Haryana registered as CWP. No. 1848/ 1991 and the same was decided on 4.2.1991 with a direction that the representation/ appeal pending before the Deputy Inspector General should be dispose off within period of six months. That i n pursuance of the order of the Hon'ble High Court in the above said representation, defendant No. 3 passed an order dated 26.7.1991 which is wrong, bad void and not binding on the Plaintiff inter-alia on the grounds that the order is contrary to the direction of the Hon'ble High Court that the order is a non- speaking order and was passed in an arbitrary manner. No personal hearing was given to the plaintiff before passing the impugned order. 4. Defendants No. 1 to 3 filled a joint written statement seriously contesting the claim of the plaintiff. They have challenged the suit being barred by time not maintainable in the present form, bad for want of legal and valid notice under section 80 CPC and the plaintiff being without any cause of action. It has been pleaded that the plaintiff had links with hardcore’s terrorist and absconders like Jaspal singh and Sukhdev Singh residents of Fattu Dhinga District Kapurthala and was helping these anti social and anti R.S.A.No. 437 of 2000 (O&M) 4 national element . The plaintiff has been dismissed from service under Article 311(2)(b) of the Constitution of India as it was to reasonably practicable to hold regular department enquiry or to serve any show cause notice to charge-sheet. They have denied the allegations on which the plaintiff has sought to assail the order dated 20.10.1981 vide which his services were terminated by defendant No. 3, Senior Superintendent of Police, Jalandhar. It has been pleaded that the plaintiff never filed any representation except the representation dated 11.2.1991 which he filed before defendant No. 2 and it was rejected being time barred. The representation dated 11.2.1991 submitted by the plaintiff has been rightly and legally decided vide order dated 26.7.1991 passed by defendant No. 2. They have also denied the allegations of sub para (a) to (g) of para No. 8 on the basis of the plaintiff has sought ot impugn the order dated 26.7.1991 passed by the Deputy Inspector General of Police. They have admitted the receipt of notice as pleaded in para No. 12 of the plaint but have challenged its legality and validity. On the pleadings of the parties, following issues were framed by the trial Court:- (1) Whether the suit of the plaintiff is time barred ? OPD (ii) Whether the present suit is not maintainable ? R.S.A.No. 437 of 2000 (O&M) 5 OPD (iii) Whether the plaintiff is entitled to the declaration? OPD (iv) 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 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 20.10.1987 (Ex.P-3). 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 20.10.1987 Ex.P-3. The suit filed by the plaintiff was hopelessly barred by limitation. The suit could have been filed by the plaintiff within three R.S.A.No. 437 of 2000 (O&M) 6 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 criminal case would not extend the period of limitation. Moreover a perusal of the order Ex.P-3 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 arguments 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 R.S.A.No. 437 of 2000 (O&M) 7 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 second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE January 06, 2011 anita