Shamsher alias Surinder Singh vs State of Punjab

R.L. Anand, J.—Unsuccessful plaintiff Shri Shamsher Singh alias Surinder Singh has filed the present appeal and it has been directed against the judgment and decree dated 1.9.1998, passed by the Court of Additional District Judge, Chandigarh, who affirmed the judgment and decree dated 21.7.1993, passed by the Court of Sub Judge, 1st Class, Chandigarh who dismissed the suit of the plaintiff for declaration as prayed for in the suit.

Some facts can be noticed in the following manner. The appellant filed a suit for declaration to the effect that the orders dated 12.12.1984, 30.3.1985 and 20.1.1988, passed by the punishing authority, are illegal, null and void and inoperative. He also prayed for the consequential relief for his reinstatement in the service including the back wages and increments etc. along with interest at the rate of 18% per annum on his arrears and salary.

The case set up by the plaintiff was that he joined as Clerk in Punjab Civil Secretariat in September, 1974. At the time of joining his service, his name was Surinder Singh. Later on he changed his name as Shamsher Singh. It was further pleaded that he contracted first marriage with Smt. Darshan Walia in July, 1974. No child was born out of this wedlock. He embraced Islam in April, 1981 and contracted the second marriage in May, 1981 with one lady by the name of Parveen. Smt. Darshan Walia filed a complaint before the DIG, CID, Punjab, complaining about the said action of the plaintiff upon which the criminal proceedings as well as the departmental proceedings were initiated. The plaintiff was charge-sheeted by the department on the ground of bigamy along with other charge and finally be was terminated from the services vide order dated 12.12.1984 Ex.P.W3/3.

The plaintiff filed an appeal before the appellate authority against the order of his termination and his appeal was dismissed on 31.3.1985.

The case set up by the plaintiff further is that there is anomaly in the rules. Previously, for the first time the order was passed by the then Chief Secretary terminating the services of the plaintiff, being the Head of the Department. Appeal was also preferred to the same authority. The said appeal could not be heard as one could not be the judge of his own cause.

Aggrieved by the order of the Chief Secretary, dated 31 3.1985 (Ex.PW3/4), a review petition was filed by the plaintiff before the Chief Minister, Punjab, which was also rejected on 20.1.1988 (Ex.PW3/5). The plaintiff has prayed that the said orders may be declared as illegal, null and void, and inoperative and that he is entitled to reinstatement in the service with back wages.

Notice of the suit was given to the defendant who filed the written statement and denied the allegations. According to the defendant, the plaintiff was charge-sheeted according to rules for commission of the offence of entering into second marriage when his first wife was alive. Smt. Darshan Walia the first wife of the plaintiff obtained a decree of divorce against the plaintiff in the year 1987 and prior to that plaintiff could not enter into second marriage and embracing of Islam by the plaintiff is a farce just to defeat rule 21 of the Punjab Government Employees (Conduct) Rules, 1966. By defending the aforesaid orders, the defendant prayed for the dismissal of the suit of the plaintiff.

The plaintiff filed a rejoinder to the written statement of the defendant in which he reiterated the allegations made in the plaint by denying those of the written statement and from the above pleadings of the parties, the learned trial Court framed the following is-sues:-

Whether the impugned order dated 12.12.1984, 30.3.1985 (31.3.1985). 20.1.1988 are illegal, null and void and liable to be set aside an alleged ? OPP

Whether the plaintiff is entitled to back wages, increments etc. as alleged ? OPP

Whether plaintiff is entitled to interest on the sum on due to him, if so, to what rate ? OPP

Relief.

The parties were given the opportunities to lead evidence and vide judgment and decree dated 21.7.1993, the suit of the plaintiff was dismissed.

Aggrieved by the judgment and decree of the trial Court, the plaintiff filed the first appeal before the Court of Additional District Judge, Chandigarh who dismissed the appeal of the appellant for the reasons given in paras No. 12 to 16 of the judgment, which are reproduced as under :-

"12. Question again came up before the Hon''ble Supreme Court in another authority reported as 1996(1) SCT 617. In that case it was held that requirement of supply of copy of inquiry report is necessary w.e.f. 20.11.1990 in those cases where it was not provided under the rules where it was provided under the rules it was necessary even earlier to 20.11.1990. Thus, the law on the point as declared by the Hon''ble Supreme Court of India is that in case the rules provide supply of copy of inquiry report was always necessary. In case the departmental rules do not provide copy of supply of inquiry report is necessary only in those cases where the punishment has been awarded on or after 10.11.1994. In the instant case, the punishment was awarded on 12.12.1984; the plaintiff was governed by the Punjab Civil Services (Punishment and Appeals) Rules, 1970 which provide that copy of inquiry report shall be supplied to the plaintiff and show cause notice shall also be served. In the instant case neither the show cause notice was served nor copy of inquiry report was supplied. In the written statement the defendant has taken a plea that it was not done under the advice of the Legal Remembrancer (Ex.D.2) which in turn is based on Section 44 of 42nd Amendment of the Constitution. Thus, the fact remains that neither the show cause notice was served nor copy of inquiry report was supplied. As per the law declared by the Hon''ble Supreme Court of the rules provided supply of copy of inquiry report was mandatory. The matter was considered by the Full Bench of Hon''ble High Court in the authority reported as Ram Niwas Bansal v. State Bank of Ptitiata 1998(3) SCT 550 (P&H) : 1998(2) PLR 768 and it was held that it is mandatory to supply the copy of inquiry report. Keeping in view all these facts and circumstances I am of the view that the impugned order dated 12.12.1984 whereby the services of the plaintiff were terminated is not in accordance with law.

Another question which is incidental arose during the course of arguments whether the suit of the plaintiff is within limitation. The plaintiff was terminated from service on 12.12.1984 vide order Ex.PW3/3. He filed an appeal against that order and the appeal was dismissed vide order dated 31.3.1985 (Ex.PW3/4) (it was conveyed to the plaintiff on 30.4.1985); the plaintiff filed a review petition that was dismissed by the President of India vide order dated 20.1.1988 (Ex.PW3/5). He filed the present suit on 8.8.1989. The question which arose for consideration is whether the suit of the plaintiff is within limitation. Learned counsel for the appellant argued that the question of limitation was never involved in this case. It was never raised by the defendant. No issue to this effect was framed. Therefore, the question of limitation does not fall for consideration at this stage. I, however, failed to agree with this contention of the learned Counsel for appellant. While granting relief it is the duty of the Court to see whether the suit filed by the plaintiff is within limitation or not irrespective of the fact whether the limitation was set up as defence or not. In this respect I am supported by the authority of His Lordship Hon''ble Justice R.L. Anand reported as Anoop Singh v. Bachni 1996(2) CCC 441, In that case it was held that if the suit is filed after the prescribed period of limitation, the Court is to dismiss the suit, though, the limitation was not pleaded as defence. Similar view was taken in another authority reported as State of Haryana v. Prem Singh 1996(3) PLR 799. In that case, it was held that the suit instituted after the prescribed period of limitation shall be dismissed although, the limitation has not been set up at defence. Therefore, the contention raised by the learned Counsel for the appellant that the question of limitation cannot be considered at the appel late stage because it was not pleaded as a defence, does not have any merit.

As already stated above, the plaintiff was terminated from service on 12.12.1984; his appeal was dismissed on 31.3.1985. He filed a review petition which was dismissed on 20.1.1988. The learned Counsel for the appellant has argued that cause of action accrued to the plaintiff only on 20.1.1988 when his review petition was dismissed.

I have considered this contention and failed to agree with the same, as per law laid down by the Full Bench of Hon''ble Supreme Court in State of Punjab v. Gurdev Singh Ashok Kumar 1991(3) SCT 93 (SC) : 1991(5) SLR 1, the cause of action in favour of the appellant accrued when the adverse order was passed. The adverse order against the appellant was passed on 12.12.1984. The question regarding limitation was also considered by a constitutional Bench of the Hon''ble Supreme Court in another authority reported as S.S. Rathore Vs. State of Madhya Pradesh, . It was held that the cause of action to file a suit in the departmental proceedings arises when adverse order is passed; It was further held that in case appeal etc. is filed and is not decided within six months after the filing of the appeal etc. cause of action arises on expiry of six months from the date when appeal was filed. It was held that the appeal etc. must be a statutory remedy and successive and repeated representations and their dismissal does not give a fresh cause of action to the plaintiff. In para No. 22 of the Hon''ble Supreme Court observed as under :-

"22. It is proper that the position in such cases could be uniform. Therefore, in every such case until the appeal of representation provided by law is disposed of, accrual of cause of action for cause of action shall first arise only when the higher authority makes its order on appeal or representation and where such order is not made on the expiry of six months from the date when the appeal was filed or representation was made. Submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation."

From the law laid down by the Apex Court, it is clear that limitation is to start when adverse order is passed and if the appeal is filed against that order from the date when the appeal is disposed of and in case the appeal is not disposed of within six months on expiry of six months from the date when the appeal was filed. In the instant case, the adverse order was passed on 12.12.1984 and the appeal of the appellant was dismissed on 31.3.1985. Thus, the cause of action accrued to the appellant when his appeal was dismissed. He filed the suit on 9.8.1999. Apparently, the suit filed by him is not within limitation. It is contended by the learned Counsel for the appellant that the appellant filed a review petition which was dismissed on 20.1.1988 and fresh cause of action accursed to him on 20.1.1988. I have considered the submissions made by the learned Counsel for the appellant and have failed to agree with the same due to two reasons, firstly once the limitation starts running, it does not stop running due to subsequent events and secondly; the review petition filed by the appellant was not a statutory remedy. Punishment and Appeal Rules do not provide that the delinquent official has a right to challenge an adverse order by way of review petition. Power to review has been given to the Governor for ununlimited period and to the punishing authority within six months from the date of adverse order. Apparently, it has been given to remedy a patent injustice, if in some cases it appears to have been done. This remedy is not available to each and every employee to file a review petition. The learned Counsel for the appellant has failed to cite any authority in support of this contention that filing of review petition and its dismissal also gives a fresh cause of action to a delinquent official, as already noted above, there is no limitation for the Governor to review an adverse order. He can review the order after the expiry of any length of time. If this contention is accepted that the employee is also free to file a review petition after the expiry of any length of time and dismissal of review petition gives him a fresh cause of action the conclusion shall run counter to the decision of the Hon''ble Supreme Court pronounced in State of Punjab v. Gurdev Singh Ashok Kumar (supra) wherein it was held that to hold that there is no limitation for void order is against the spirit of law of limitation. I am, therefore, of the view that the suit filed by the appellant was not within limitation and was liable to be dismissed due to this reason. Hence, no ground is made out to interfere with the findings recorded by the learned trial Court on issue No. 1, though on different reasons. The findings on issue No. 1 are accordingly affirmed. 16. Due to the same reason no ground is made out to interfere with the findings recorded on issues No. 2 and 3. These findings recorded by the learned trial Court on issues No. 2 and 3 are also affirmed."

Still not satisfied with the judgments and decrees of the Courts below, the present appeal has been filed by the plaintiff.

I have heard Shri Ravinder Chopra, Advocate, appearing on behalf of the appellant and Shri A.G. Masih, learned DAG, Punjab, appearing on behalf of the respondent and with their assistance have gone through the record of the case.

Learned counsel for the appellant submits that the first appellate Court in para No. 12 of the judgment has held that the impugned order dated 12.12.1984 was not in accordance with law, still the plaintiff has been non-suited on the ground of limitation. Counsel further submits that plaintiff filed a review application before the Hon''ble Chief Minister of State and the review application was disposed of on 20.1.1988. This review was filed on. 24.8.1985. Against the order dated 12.12.1984, the plaintiff filed the statutory appeal which was dismissed on 31.3.1985. The order was conveyed to the plaintiff on 13.4.1985. The review filed under Rule 21 is a statutory one. Till the review is finally disposed of, the plaintiff could always wait for the result of the review. Since his review was dismissed on 20.1.1988, therefore, the suit of the plaintiff is within limitation by virtue of Article 58 of the Limitation Act.

On the contrary, learned Counsel appearing on behalf of the respondent submits that the suit of the plaintiff is barred by limitation. He could institute the suit within one year from the date of the termination order which merged into the order of appeal dated 31.3.1985. The Rule 21 of Punjab Government Employees (Conduct) Rules, 1966, is not applicable to the case of the plaintiff and, therefore, the plaintiff has been rightly non-suited.

First of all, I will like to dispose of the controversy whether in such like cases, the provisions of Article 100 of the Limitation Act are applicable or the provisions of Article 58 are attracted. The suit is for declaration. The plaintiff has alleged that the order of termination of his service affirmed in appeal and the review is non-existent and violative of the constitution. He has sought a declaration. In these circumstances, the provisions of Article 58 would attract and not Article 100 because Article 100 pre-supposes a valid order passed by a competent Court of jurisdiction in order to determine whether the suit of a litigant is within limitation or not. The Civil Court is to be guided by the allegations made in the plaint. As I had stated above, the plaintiff has alleged in the plaint that the impugned orders arc illegal, null and void and inoperative and, therefore, Article 58 will be applicable which is the residue Article.

Now, it is to be seen when the cause of action arose to the plaintiff. Rule 21 gives the opportunity to a public servant aggrieved of the order of termination, to file a review application before the Governor or before the appellate authority. Since the review application of the petitioner was declined on 20.1.1988, therefore, he could institute the suit on or before 20.3.1991. Ultimately, the present suit has been filed on 9.8.1989. Otherwise also on merits, even the order dated 30.3.1985 passed by the appellate authority cannot be sustained in the eye of law as it is well settled principle of law that nobody can sit as a Court of appeal over his own judgment. The order dated 12.12.1984 was passed by the Chief Secretary who disposed of the appeal while sitting as an appellate authority. Nobody can be judge of his own cause. On the principles of natural justice also the orders passed by the authorities are not sustainable in the eye of law as it has caused a legal bias detrimental to the interest of the plaintiff

Resultantly, I reverse the findings of the trial Court on issue No. 1.

With regard to the findings on issues No. 2 and 3, I am of the opinion that plaintiff is not entitled to the back wages nor he is entiteld to the interest because he has never worked.

Resultantly, the appeal is partly allowed; the judgment and decree of the trial Court is hereby modified and the suit of the plaintiff-appellant for declaration is hereby decreed by declaring that the impugned orders are illegal, ultra vires, null and void and the plaintiff is entitled to reinstatement into service to the last post from which his services were terminated. He shall not be entitled to any back wages or interest etc. However, his claim for seniority shall always remain intact.

Appeal partly allowed.