RSA No.1083 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1083 of 1987 Date of decision 29.10.2009 Sukhdev Raj ... Appellant Versus State of Punjab and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR Present: None for the appellant Mr. Rajesh Garg, Addl. Advocate General, Punjab 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. This is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings recorded by both the Courts below. The learned Additional District Judge, Gurdaspur vide his order dated 22.11.1986 has upheld the view taken by the learned Civil Judge, Batala in his judgement and decree dated 4.10.1985 partially accepting the claim made by the plaintiff-appellant in the suit. Before referring to substantive questions of law which have been raised few facts may first be noticed. The plaintiff- appellant has been working as a bus conductor. He filed a civil suit no. 177 of 1983 on 4.6.1983 seeking declaration to the effect that he was entitled to his first and second increment which fell due on 17.9.1974 and 17.9.1975. He challenged (a) order dated 6.5.1976 whereby his three increments were stopped with cumulative effect;(b) order dated 30.3.1979 whereby his two increments were stopped with cumulative effect (c) order dated 18.11.1980 whereby his one increment was stopped with cumulative effect; d) order RSA No.1083 of 1987 2 dated 20.11.1981 whereby his one increment was stopped with cumulative effect; e) order dated 20,.11.1981 whereby one increment of the plaintiff was stopped with cumulative effect; f) order dated 15.4.1982 whereby one increment of the plaintiff was stopped with cumulative effect; and g) order dated 16.9.1982 whereby two increments of the plaintiff were stopped with cumulative effect. The learned Civil Judge framed an issue regarding limitation and held that orders dated 6.5.1976 and 30.3.1979 ( 'a' and 'b') stopping three and two increments with cumulative effect respectively were beyond the period of limitation. The other five orders passed on or after 18.11.1980 were found to be within limitation. The learned Civil Judge found that the period of limitation for challenging such orders is three years and the suit having been filed on 4.6.1983 was hopelessly time barred in respect of those two orders. In respect of the orders passed after 18.11.1980 there was no dispute between the parties with regard to the period of limitation. The learned Civil Judge rejected the argument that an order which is void in the eyes of law could be challenged at any time and no period of limitation is deemed to be provided to challenge such orders. The reasoning adopted by the learned Civil Judge is discernible from the following part of para 8 of the judgement which reads thus: “...... The ld. counsel for the plaintiff has submitted that since these orders are void they can be challenged at any time regardless of the law of limitation because a void order is non existent and the limitation does not run against any such order. To support his argument he has relied upon Food Corporation of India v. Garib Singh 1985 Punjab Acts and precedents, 86. I RSA No.1083 of 1987 3 have gone through this ruling but am unable to agree with the ld. counsel for the plaintiff that the orders passed in the case under disposal can be placed at par with the order dealt in the abovesaid decision. That was a case where the services of a Chaukidar were terminated for delinquency. Under the relevant Service Rules viz. the Staff Regulations, 1971 applicable to the official, termination of service was a major penalty under clause (vii) of Regulation 54. Clause 1 of Regulation 58 provides that 'no order imposing any of the penalties specified in clauses (v) to (ix) of Regulations 54 shall be made except after an enquiry is held, as far as may be, in the manner provided in that Regulation and Regulation 59. Obviously it was a major punishment in that case and for that the procedure laid down was to hold regular enquiry before that punishment could be inflicted upon the delinquent chaukidar. In the instant case I am not dealing with major punishment as provided in 1970 Rules. For the stoppage of increments with cumulative effect being only minor punishment rule 10 of the 1970 Rules provides for the procedure for the imposition of such a penalty on the Government employee. I have not been shown as to how there is any infraction of any provision thereof in order to say that the impugned orders dated 6.5.1976 and 30.3.1979 were void.” The other argument of the plaintiff-appellant that those orders were were not communicated as per the provisions of Rule 22 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970 (for brevity 'the 1970 Rules') RSA No.1083 of 1987 4 was also rejected. It has been specifically found that the order dated 6.5.1976 was endorsed to the plaintiff- appellant as is evident from the endorsement on the order (Ex.P.6). The learned Civil Judge also referred to the fact that the plaintiff-appellant was under suspension prior to the passing of the order dated 6.5.1976 and in pursuance of the order he had been reinstated while a punishment of stoppage of increment with cumulative effect was inflicted upon him. It was in pursuance of the aforesaid document that the plaintiff-appellant had resumed his duty. Therefore, the claim made by the plaintiff-appellant that the order was not communicated to him was rejected. Moreover, Rule 22 of the 1970 Rules merely prescribes a procedure for serving of an order on a government employee. The learned Civil Judge also upheld the punishment of stoppage of two increments inflicted vide order dated 16.9.1982. The plaintiff-appellant was found to have not issued tickets to five passengers from whom he had received a sum of Rs. 4.30 on 3.11.1981 when he was on duty as Conductor on Bus No. PUG 1742 plying on route to Batala- Sri Har Gobindpur. The checking staff made a report which is available at page 177 of the trial Court file. The plaintiff- appellant was placed under suspension and enquiry was conducted against him under rule 8 of the 1970 Rules which contemplates imposition of major penalty. The only argument of the plaintiff- appellant before the learned Civil Judge was that it was a case of no evidence because the witnesses examined before the Enquiry Officer who had checked the bus did not check the cash of the plaintiff- appellant at the relevant time nor the statement of any passenger was recorded during checking. The learned Civil Judge placed reliance on a judgement of a Full Bench of this Court rendered in the case of State of Haryana v. Ram RSA No.1083 of 1987 5 Chander 1976 SLJ 689 wherein it was held that the enquiry officer would be justified in acting upon the evidence of the Ticket Checker who had stated that the tickets were not issued to several passengers and they had made statement in the presence of the Conductor that they paid fare to him. Therefore examination of passengers themselves as witnesses was not essential and finding of guilt recorded by the enquiry officer could not be considered to be pure hearsay because it would be based on the evidence of the Checker that he found passengers travelling without tickets and also on the statement made by the passengers to the Checker at the time of checking. Therefore the aforesaid order of punishment was also upheld. Likewise, order dated 30.3.1979 was endorsed to the plaintiff- appellant and the claim made by him that the order was communicated to him only four months prior to the institution of the suit was rejected. On appeal under Section 96 of the Code, the learned Addl. District Judge upheld the view taken by the learned Civil Judge by adopting the same reasoning as was adopted by the learned civil Judge. The ld. Additional District Judge referred to Article 58 of the Limitation Act, 1963 which provides a period of three years for challenging an order by way of declaratory suit. Feeling aggrieved the plaintiff- appellant has approached this Court. In respect of the order dated 16.9.1982 the view taken by both the Courts below deserved to be accepted because the strict rule of Evidence Act, 1872 do not apply to domestic enquiry. In the case of State of Haryana v. Rattan Singh 1977(2) SCC 491 it has been specifically held that the statement of the Ticket Checker before the Enquiry Officer that the Conductor did not issue tickets to the ticketless passengers despite payment RSA No.1083 of 1987 6 of fare to him would be relevant and cannot be discarded on the principle of hear-say evidence. Moreover, the sufficiency of evidence is not within the domain of judicial scrutiny and it has been left to the discretion of the Enquiry Officer or at the best of appellate Authority. The statement of law is discernible from para 4 of the judgement which reads thus: “4. It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender or independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunals cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the RSA No.1083 of 1987 7 respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record................ .” Therefore, no substantive question of law would arise in respect of the orders dated 20.11.1981, 20.11.1981, 15.4.1982 and 16.9.1982 ( 'D' to 'G') However, I find that two substantive questions of law would arise for determination in respect of other orders which are as under: (A) Whether imposition of stoppage of increments with cumulative effect is a major punishment ? (B)Whether the orders dated 6.5.1976, 30.3.1979 and 16.9.1982 are void and no period of limitation would apply to void orders ? Re: Question No. (A) It has remained undisputed that the service condition of the plaintiff- appellant are governed by the 1970 Rules. Rule 5 of the 1970 Rules as it stood in the year 1983 reads as under: Major Penalties. RSA No.1083 of 1987 8 (v) reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government employees will earn increments of pay during the period of such reduction will or will not have the effect of postponing the future increments of his pay; (vi)to (ix) xx xx xx xx xx” The aforesaid rule came up for consideration of Hon'ble the Supreme Court in the case of Kulwant Singh Gill v. State of Punjab 1990(6) SLR 73 wherein it has been held that the stoppage of increment with cumulative effect would not be covered by the language used in Rule 5(iv) which uses the expression 'withholding the increment of pay'. According to the view expressed by their Lordships, stoppage of increment with cumulative effect causes a permanent loss of salary and affects pension. Therefore it has to be regarded as a major punishment which could be imposed after holding a regular departmental enquiry as contemplated by Rule 8 of the 1970 Rules. The view of their Lordship is discernible from para 4 of the judgement which reads thus: “4. Withholding of increments of pay simplicator undoubtedly is a minor penalty within the meaning of Rule (iv). But sub-rule (v) postulates reduction to a lower stage in the time-scale of pay for a specified period with further directions as to whether or not the Government employee shall earn increments of pay during the period of such reductions and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay. It is an independent head of penalty and it could be imposed as RSA No.1083 of 1987 9 punishment in an appropriate case. It is one of the major penalties. The impugned order of stoppage of two increments with cumulative effect whether would fall within the meaning of Rule 5(v) ? If it so falls Rules 8 and 9 of the Rules require conducting of regular enquiry. The contention of Shri Nayar, learned counsel for the State is that withholding two increments with cumulative effect is only a minor penalty as it does not amount to reduction to a lower stage in the time-scale of pay. We find it extremely difficult to countenance the contention. Withholding of increments of pay simpliciter without any hedge over it certainly comes within the meaning of Rules 5(iv) of the Rules. But when penalty was imposed withholding two increments i.e. for two years with cumulative effect, it would indisputably means that the two increments earned by the employee were cut off as a measure of penalty for ever in his upward march of earning higher scale of pay. In other words the clock is put back to a lower stage in the time-scale of pay and on expiry of two years the clock starts working from that stage afresh. The insidious effect of the impugned order by necessary implication, is that the appellant employee is reduced in his time-scale by two places and it is in perpetuity during the rest of the tenure of his service with a direction that two years' increments would not be counted in his time-scale of pay as a measure of penalty. The words are the skin to the language which if pealed off its true colour or its resultant effects would become apparent. When we broach the problem from this RSA No.1083 of 1987 10 perspective the effect is as envisaged under Rule 5(v) of the Rules................. “ It is thus undoubtedly true that the stoppage of increment with cumulative effect imposed vide orders dated 6.5.1976, 30.3.1979 and 16.9.1982 are major penalties within the meaning of Rule 5 of the rules. But the question then is whether an enquiry was held before inflicting the aforesaid punishment and whether the enquiry was in accordance with Rule 8 of the 1970 Rules. A perusal of the memorandum of appeal shows that various pleas have been raised with regard to holding of enquiry. It has been alleged that there was violation of rule 8.4, 8.16, 8.18 and 8.23 of the 1970 Rules. It has firstly been claimed that Enquiry Officer did not assess the evidence on record nor he assigned any reason for reaching the conclusion. Secondly it has been alleged that the impugned orders were non- speaking and cryptic which showed complete non- application of mind on the part of the punishing authority. However, a perusal of enquiry file at pages 55 to 71 would show that a regular departmental enquiry was conducted against the plaintiff- appellant. He was found to be on duty on Bus No. PUB 2393 which was plying on route No.35. The plaintiff- appellant was discharging the duty as a Conductor and it was checked by Inspector Harbhajan Singh on 17.10.1975. The Chief Inspector Mukhtiar Singh and Inspector Kashmir Singh found that 10 passengers were without ticket and the Conductor had charged fare @ Rs. 4/-. In the regular departmental enquiry the plaintiff- appellant was given a charge sheet. Likewise a regular enquiry was held before inflicting punishment vide order dated 30.3.1979 as per the requirement of Rule 8 of the 1970 Rules. The aforesaid order is available on the enquiry file as RSA No.1083 of 1987 11 Ex.P.6 at pages 81/151. Before inflicting the punishment a report by the Central Flying Squad was submitted against the plaintiff- appellant for initiating disciplinary action as he was found to have indulged in mal- practices of not issuing tickets after charging fare from the passengers. It was in pursuance of checking of Bus No.PUM 9971 enroute from Batala -Kadian. Thereafter a show cause notice was given alleging that one of the passengers was traveling without ticket although the plaintiff- appellant had collected fare from him. The show cause notice was duly replied which was rejected and the punishment of stoppage of two increments with cumulative effect was imposed. Once it is settled that stoppage of increment with cumulative effect is a major penalty then it follows that the same could be inflicted only after following detailed procedure laid down under Rule 8 of the 1970 Rules. The issuance of memo and seeking reply is a procedure which is contemplated by Rule 7 of the 1970 Rules which is followed when minor punishment is required to be inflicted. Therefore, the order dated 30.3.1979 cannot be sustained on that ground and the same could be declared as illegal. The result of the aforesaid discussion is that stoppage of increment with cumulative effect is a major punishment as has been held by Hon'ble the Supreme Court in Kulwant Singh Gill's case (supra). Accordingly order dated 6.5.1976 and 16.9.1982 are sustainable and the order dated 30.3.1979 cannot be sustained. The finding of the trial Court as well as that of the appellate Court in respect of orders dated 6.5.1976 and 16.9.1982 are affirmed whereas the findings in respect of order dated 30.3.1979 are reversed. Re: Question “B” RSA No.1083 of 1987 12 The other substantive question of law raised in the instant appeal is whether orders dated 6.5.1976, 30.3.1979 and 16.9.1982 could be regarded as void orders so as to conclude that no period of limitation would apply. Void orders are still born orders and infact are not orders in the eyes of law but are purported orders. It may include an order which has been passed in flagrant violation of the principles of natural justice or orders which are passed by an authority who had no jurisdiction. By no stretch of imagination it could be concluded that the orders dated 6.5.1976, 30.3.1979 and 16.9.1982 are orders passed by an authority which had no jurisdiction. Orders dated 6.5.1976 and 16.9.1982 have been passed after holding regular departmental enquiry as contemplated by Section 8 of the Rules. There is no ground pleaded in the memorandum of appeal that those orders have not been passed by an authority not competent to do so. On that score in in discussion under Question “A”, these orders have been upheld by affirming the findings recorded by both the Courts below. However, order dated 30.3.1979 suffers from a procedural lapse committed by the appointing authority in as much as the order has not been passed after following detailed procedure of holding enquiry as per the requirement of Rule 8 of the 1970 Rules. But even then such an order cannot be regarded as void order as the order does not suffer from any jurisdictional error. If it is presumed that for the sake of arguments if the aforesaid order is presumed to be void order it cannot be concluded that Article 58 of the Schedule appended to the Limitation Act would not apply. The matter is no longer res-integra and it has been held that even void orders are required to be challenged within the period of limitation. In that regard reliance may be placed on a judgement of Hon'ble the Supreme Court in the case of State of RSA No.1083 of 1987 13 Punjab v. Gurdev Singh (1991) 4 SCC 1. Reversing the view taken by this Court that a suit for declaration by a dismissed or discharged employee could be filed at any time it has been held that law of limitation woul apply even to void and ultra vires order. The Courts function on the presentation of a 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 specific article prescribing the period of limitation, it must fall within the residuary article which is applicable to every variety of suits not otherwise provided for. It prescribes a period of three years from the time when the right to sue accrues. The word 'right to sue' ordinary would mean a right to seek relief by means of a legal proceedings which accrues only when cause of action arises. Therefore the suit must be instituted when the right asserted in the suit is infringed. In paras 7 and 10 of the judgement Hon'ble the Supreme Court has laid down that even for void orders if the suit is to be filed then the period of limitation prescribed by the Schedule appended to the Limitation Act is applicable. The observations of their Lordships reads thus: “7. In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on the. They wanted the Court to declare that their RSA No.1083 of 1987 14 dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declares the existing state of affairs and does not 'quash' so as to produce a new state of affairs.” “10. 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.” The judgement of the Constitution Bench in the case of State of M.P. v. Syed Qamarali (1967)1 SLR 228 has