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Judgment
(1) This civil 1st appeal (wrongly styled as letters patent appeal) is directed against the judgment and decree of a learned Single Judge of this court
passed in civil suit No. 56 of 1976 decided on November, 1, 1973.
(2) In a nutshell the facts of the case are as follows :
Plaintiff appellant was employed as a cashier in the Bombay Branch of the Government Arts Emporium. He was placed under suspension on
March 3, 1956 on charges of certain misconduct and was subsequently, by order of the General Manager Kashmir Government Arts Emporium
dated 14.7. 56, discharged from service. The appellant assailed the order of discharge on the ground that it was wrongful because he had not been
served with any charge sheet or provided any opportunity of being heard in his defence. The appellant not only claimed his reinstatement but also
the arrears of pay and allowance. The relief claimed by the appellant in the suit consisted of two declarations :
(i) that he is entitled to reinstatement on the post of cashier or some equivalent post in the Government Arts Emporium, and
(ii) that he is entitled to receive arrears of pay and allowances from March 3, 1956, till the date of his reinstatement.
(3) The respondents contested the claim of the appellant and raised certain preliminary objections. On July 22,1969, the following four preliminary
issues were raised in the case :
1) Is not the suit maintainable ? If so, why ? O. P. D.
2) Is the suit barred by Limitation ? OPD
3) Was not a valid notice issued to the defendant in the case ? O. P. D.
4) Has not adequate court fee been paid by the plaintiff on the plaint ? If so, what is the court fee payable ? OPD.
4) Vide order of the court dated January 6, 1973, Issue no. 1 was decided against the appellant The learned Single Judge opined that the appellant
should more appropriately have sued for the recovery of the probable amount which was due to him on account of arrears of pay In this view of
the matter, it was found that the suit, as framed, was not maintainable. The plaintiff was, however, afforded an opportunity to amend the plaint on
payment of costs. In pursuance of that order, the appellantplaintiff filed the amended plaint and paid court fee on the amended plaint. After proper
court fee was paid by the plaintiff, in the opinion of the learned Single Judge, issue No. 4 was rendered redundant, Issue Nos 2 and 3 then came to
be decided by the learned Single Judge by his Judgment and decree dated November 1, 1973, which is under appeal.
(5) Before the learned Single Judge no arguments we e addressed as regards issue No 3, with the result that the challenge to the validity of the
notice was given up at the trial. No arguments have been raised before us either on issue No. 3. The only issue which was contested before the
learned Single Judge, was issue No. 2. In appeal also it is the finding on this issue alone which has been challenged
(6) According to Mr. K. N. Raina, learned Counsel for the appellant, the order of discharge passed against the appellant, having been found to be
violative of the mandatory provisions of J&K Civil Servants (Removal of Doubt and Declaration of Rights) Act, 1956, was a void order &had no
effect in so far as the appellant is concerned. It is argued that since the appellant sought the relief of arrears of pay on the ground that the order of
discharge passed against him was nonest, the learned Single Judge was not right in holding that the declaration sought for by the appellant was
barred by time Mr. Raina has relied upon 1967 S. L. R 22$ and A Full Bench Judgment of Punjab & Haryana High Court reported in AIR 1969,
Punjab & Haryana 441, to canvass the proposition that it was not necessary for the appellant to have sough the declaration because a valid order
has no effect or existence in the eye of law
(7) Mr. M A Nehvi, learned counsel for the respondentdefendants has, on the other hand, urged that the suit of the plaintiffappellant could not have
succeeded without his having obtained the declaration from the court that the order was void and such a declaration could only be obtained from
the court, if the suit had been brought within six years from by the date of discharge, under Art. 1 of the Limitation Act. Reliance has been placed,
by Mr. Nehvi in this behalf on a Division Bench Judgment of the Punjab and Haryana High Court reported in A. I R 1968 Punjab & Haryana 487
and a judgment of the Madhya Pradesh High Court reported in A. I. R 1966 M P 154.
(8) The learned Single judge held that the order of discharge had been made in flagrant violation of the guarantee s given under sec. 4 of Jammu
and Kashmir Civil Servants Removal of Doubt and declaration of Rights) Act. 1956, and was a void order"". The learned Single Judge however
went on to pose a question ; Has the plaintiff come within time to get this order declared ineffective and inoperative as against him?"" The answer to
this question given by the learned Single Judge, was that the plaintiff had not come within time to get that order declared ineffective and inoperative,
because he had filed the suit beyond six years from the date of discharge and as such his claim to arrears of salary was also barred by Limitation.
To us it appears that this approach of the learned Single Judge was not correct.
(9) The question whether it is necessary for a party to get a void order declared so from a court of law came up for consideration by their
Lordships of the Supreme Court. In 1967(1) S. L. R. 228, their Lordships of the Supreme Court in unequivocal terms laid down that where an
order of dismissal is made in breach of mandatory provisions, it is a totally invalid order which has no legal existence and that it is not necessary for
the effected party to have such an order set aside by the court. They went on to opine that ""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.
(10) In view of this clear declaration of law by the Supreme Court, there remains no manner of doubt that it was not necessary for the appellant to
get the order declared ineffective and inoperative. The order does not become void on the declaration by the court but because of the legal
infirmity and the declaration by the court only recognises the existence of the voidability of the order. For all intent and purposes such a void order
has no existence in the eye of law and can be ignored by the party effected by it. However, when a litigant seeks some relief flowing from such an
order, he must come within the period of limitation prescribed by the Limitation Act to seek that relief. The learned Single Judge was, therefore,
not right in saying that the plaintiff had to seek the declaration within the period prescribed under Art. 119 of the Limitation Act.
(11) We are in agreement with the following opinion expressed by the Full Bench of Punjab and Haryana High Court in A I. R. 1969 Punjab &
Haryana 441 :
When an order of dismissal of a civil servant is declared void or inoperative the declaration of the court does not make the order void but merely
declares or exposes the already existing infirmity in the order. Such an order of dismissal being ineffective from its inception, the civil servant
continues in service inspite of the order and the cause of action for the salary accrues every month. The right to recover wages or salary under
Article 102 is continuing right and each successive breach gives right to a fresh cause of action.
(12) Thus, after the Single Judge had found the order of discharge to be void, 'the question to be considered in the suit was whether the
plaintiffappellant was seeking the relief of recovery of arrears of salary within the period of limitation, Art. 73 of the Limitation Act of 1995 BK.
which corresponds to Art. 102 of the Indian Limitation Act, Lays down a period of three years for the recovery of wages from the date wages
became due. There is no doubt that the expression ""wages"" in Art. 73 also covers 'salary' that may be due to an employee. The appellant had,
therefore, to seek the relief of recovery of arrears of salary within three years from the date when the salary became due to him. As the order was
nonest, ineffective and inoperative, by a legal fiction it would imply that the employee v/as in service all along. He would be entitled to file suit for
the recovery of arrears of salary within three years from the date the salary become due. In other words, he would be prevented from claiming
arrears of salary for a period beyond three years, The law of limitation may harshly effect a particular party, but it has to be applied with all its rigor
when the statute so prescribes. A public servant whose services have been terminated by an order, which is void in the eye of law, can, therefore,
claim salary only for a period of three years and two months, the period in lieu of the notice period under section 80 of the Code of Civil
procedure immediately prior to the filing of the suit. Thus, the suit of the plaintiffappellant was not barred by limitation, though his relief had to be
adjudicated only for a period of 3 years plus two months The finding of the learned Single Judge on this issue is, therefore, not sustainable.
(13) So far as A I. R. 1966 M. P. 154, relied upon by Mr Nehvi, is concerned, the declaration of law made in that judgment, undoubtedly,
supports him, The Bench in that case held that in a suit for declaration that dismissal was wrongful and for arrears of pay, for three years
immediately before suit if the suit was filed beyond the period of six years of dismissal, it was barred under Article 120, corresponding to Article
119 of the State Limitation Act, In our view, however, this authority cannot be treated, any longer, as good law because of the judgment of the
Supreme Court in Civil Appeal No. 284 of 1960 titled. The State of Madhya Pradesh Versus Syed Qamarali, 1967 S L. R. (Vol. 1) 228 (Supra).
(14) In A. I. R. 1968 Punjab & Haryana 485, the Division Bench tried to explain the observations of the Supreme Court in Syed Qamarali's case
(Supra). The learned Judges comprising the Division Bench, were also a party to the Full Bench, in A. I. R. 1969 Punjab & Haryana 441 (Supra).
In para 9 of the Full Bench judgment, it was opined, following Qamarali's case (Supra) that if an order of dismissal is made in breach of mandatory
provisions and is found to be void and inoperative it becomes totally invalid and such an order of dismissal, has no legal existence and it is not
necessary for the effected party to have the order set aside by a court The Full Bench went a step further and opined that:
In the eye of law, therefore, the order of dismissal ceased to have any existence and the period of dismissal in consequence must be regarded as a
period for which the dismiss employee must be deemed to be in service.
(15) Impliedly, therefore, it would seem that the judgment in A. I. R 1968 Punjab & Haryana 485 (Supra) stood overruled by the Full Bench of
that court in 1969. We, of course hasten to add that AIR. 1968 Punjab & Haryana 485, perhaps was not brought to the notice of their Lordships
of the Full Bench. This apart, we cannot agree with the interpretation placed on Qamarali's case in A I. R. 1968 Punjab & Haryana 485. While
explaining the observations in Syed Qamarali's case (Supra), their Lordships of the Division Bench took notice of the fact that in every suit there is
a period of Limitation prescribed in the Limitation Act and that all suits have to be filed within the period so
prescribed. Their Lordships also noticed that the contention of the State in Qamarali's case (Supra) to the effect that the order of dismissal, even if
void, remained valid until and unless an order was obtained from a competent court setting it aside, had been negative, but still they (D. B.) opined
that the suit for declaration and arrears of pay had to be brought within the period of limitation prescribed under Article 120 of the Limitation Act.
The interpretation thus, runs counter to the dictum of the Supreme Court in Qamarali's case. In our opinion the plain reading of Qamarali's case
shows that it is not necessary for the effected party to get a void order so declared by a court to make it ineffective and inoperative but that if some
relief is claimed flowing there from, it must be sought within the period of limitation prescribed for seeking that relief, we, therefore, express our
inability to follow A. I. R. 1968 Punjab & Haryana 485.
(16) Following the law laid down by the Supreme Court in Qamarali's case and by the Full Bench of Punjab & Haryana High Court in A, I. R.
1969 Punjab & Haryana 441 and keeping in view the unassailed finding of the learned Single Judge that the order of discharge was a void we hold
that the suit of the plaintiff was not barred by limitation but that the plaintiffappellant could maintain his claim for arrears of salary etc, only for a
period of three years plus two months, in lieu of the notice period, immediately prior to the filing of the notice period, the learned Single Judge
dismissed the suit on the ground of limitation only, we accept this appeal and setting aside the judgment and decree dated 1.11. 1973 remand the
case to the learned Single Judge for its disposal on merits in accordance with law in the light of the observations made in this judgment.
(17) In view of the fact that the question raised was fairly debatable, there shall be no order as to costs, in so far as this appeal is concerned.