AI Structured Summary
Not yet generated for this judgment
Judgment
Muzaffar Jan, Judge
This civil second appeal has been filed challenging the judgment and decree passed by learned Additional District Judge, Srinagar in CIA No:
13 dated: 21-10-1999 and judgment and decree dated: 25-11-1998 passed by learned IInd Subordinate Sub Judge (Passenger Tax), Srinagar.
Record reveals that respondent was appointed as Sub Inspector in the Police Department vide Order No: 718 of 1982 dated: 07-08-1982.
After completing his training and period of probation, respondent came to be adjusted as Sub Inspector and was transferred to JIC, Srinagar in the
year 1990. Respondent, on account of involvement of his work received threats of elimination of respondent and his other family members and
under these circumstances the respondent applied for leave of one month. The respondent, after expiry of leave period, requested for his transfer
from JIC, Srinagar, or in the alternative to provide security cover for his family members. The request, of the respondent was not conceded and
respondent thereafter reported for his duties, at the risk of his life but he was not permitted to resume the charge of his office, without giving any
reason or serving any show cause notice. The respondent made number of representations and mercy petitions, which were ignored and instead,
without informing the respondent, he was struck off from, the roles of the department vide Order No: 259 of 1990 dated: 24-11-1990.
Respondent, moved another representation on 17-09-1994, requesting for revocation of the said order but no action was taken inspite of repeated
requests. Thereafter, respondent served notice U/s 80 CPC on 19-11-1994 and ultimately after exhausting all normal remedies, respondent filed
civil suit for declaration and mandatory injunction in the Court of learned Sub Judge, Passenger Tax. Srinagar.
The stand taken by the appellants in the said suit was that the representation of the respondent was rejected vide Order dated: 26-06-1995 and
the respondent has been removed from service vide Order No: 280 of 1993 dated: 26-06-1995. In view of the knowledge of termination, the
respondent was permitted to amend the suit and challenge the order of termination. The trial Court, after full trial, and on consideration of the
merits of the suit, decreed the suit vide decree and judgment dated: 25-11-998 and declared the order No: 259 of 1990 dated 24-11-1990 and
order of removal No. 280 of 1995 dated: 26-06-1995, void, with consequential relief to declare the respondent in service entitled to pay and all
other benefits.
Appeal was filed against the judgment and decree dated: 23-01-1998, which was dismissed vide order dated: 21-10-1999. It is against this
order of dismissal of first appeal, the present second appeal has been filed.
The following substantial questions of law were raised for consideration in the appeal: -
Whether suit for declaration and mandatory injunction against an employee, here a Police Sub Inspector, removed/dismissed from service is
maintainable after expiry of prescribed period of limitation, as in the facts and circumstances of this case?
Whether filing of a non-statutory representation can extend period of limitation in a suit of the nature as in this case for declaration and
mandatory injunction?
Whether unauthorised absence of an employee and for that matter a Police Officer who perceives threat to his life and fails to perform duty can
claim back wages for such a period?
While admitting that the respondent was posted at JIC, Srinagar, as Sub Inspector in the year 1990, the submissions made in the memorandum
of appeal are that respondent remained absent from duty from the May of 1990 and was placed under suspension during the period of enquiry.
The enquiry was conducted and on the recommendations of the enquiry Officer, the respondent was removed from service vide order No, 258 of
1990 dated: 24-11-1990 after a show cause notice was served on the respondent on 14-11-1990. Respondent challenged the order of removal
after a lapse of four years on 10-03-1995 in a civil Court, which was decreed on 25-11-1998. Appeal was filed against the judgment and decree
in the Court of Additional District Judge, Srinagar, which was not allowed and was rejected vide judgment dated: 21-10-1999.
The main grievance projected by the appellants is that the trial Court as well as the First appellate Court did not consider the legal aspect that
the suit for declaration (sic) of removal from service has to be filed within three years of the passing of the order of termination and no suit would
be maintainable, if filed beyond the period of three years. Since the suit, filed by the respondent in the year 1995 challenging the order of removal
from service passed in 1990, was not permissible under limitation, therefore, on this legal infirmity, the trial Court as well as the First Appellate
Court, were in error in permitting the prayer of the respondent in the suit and rejecting the pleas taken by the appellants. The plea taken by the
appellant, that since he had filed representations and, under law representations would extend time of limitation, would not be sustainable under law
on the established principle of law that representations do not extend the period of limitation. The excuse projected by the respondent to remain
absent from duty, is threat to his life and other family members, is no ground to remain absent from duty in Police Department and on such absence
to claim wages for the period for which no work has been done, on these submissions it prayed that the appeal be allowed and the judgments and
decree impugned be set aside.
Heard learned counsel for the parties at length.
Learned counsel for the appellants has argued that on the admitted factual position, the respondent filed suit for declaration, that his removal
from service was illegal, on 10-03-1995. challenging order No: 259 of 1990 dated: 24-11-1990, after a period of more than four years, which is
barred by limitation, under Article 113 of the Limitation Act. The non-compliance of the procedural formalities of equity would not justify a Police
Officer to refuse to perform his duty on the ground of threat to his life and the representations which may have been filed by the respondent, would
not extend the life of limitation, in the facts of the present case.
On the other hand, learned counsel for the respondent has argued that in view of the settled position of law, the period of limitation, to challenge
the order removal from service is six years and the respondent having filed the suit within the period of-limitation, is entitled to be taken back in
service with all consequential benefits.
Considered the arguments of learned counsel for the parties and perused the relevant record.
The facts, which are not denied, but are admitted are that after availing of period permissible for leave, respondent remained on un-authorised
absence from duty in the year 1990 and his termination order was passed on 24-11-1990. It is also admitted that no formal enquiry was
conducted before the order of termination was passed on 24-11-1990. All these aspects seem to have been agitated, considered and settled in the
civil suit filed in the trial Court. The trial Court, on termination of trial, came to the conclusion that the order of termination No. 259 of 1990 dated:
24-11-1990. has been passed by an incompetent person, without conducting an enquiry and following the mandatory procedure, required under
law. The finding of the trial Court was upheld by the First Appellate Court vide judgment and decree dated: 21-10-1999. Having thus succeeded
to show that the order of termination dated: 24-11-1990 was passed by an incompetent person/authority, without conducting an enquiry, the only
legal plea, which is required to be considered in this appeal is whether the suit would be maintainable after a period of more than four years.
Q-1. A Co-ordinate Bench of this Court in 1995 JKLR, 644 while considering the provisions of Limitation Act applicable to the case of an
employee, seeking declaration against the order of termination, has held that, as no period of limitation is provided under the statute in suits seeking
declaration of cancellation of the order of termination, the residuary clause u/s 119 of the Limitation Act, would be applicable. The Co-ordinate
Bench has taken this view by relying on the judgments of the Apex Court in State of Punjab and Others Vs. Gurdev Singh, and S.S. Rathore Vs.
State of Madhya Pradesh, ."" Therefore, the suit of respondent is maintainable as the same has been filed within the period of limitation. The
question is accordingly answered.
Q-2. It is settled position of law that representations ordinarily would be extend the period of limitation. In the present case, the period of limitation
has not been extended on account of representations but since the suit of the respondent has been found within time of limitation, therefore, the
question is accordingly answered.
Q-3. On the admitted position, that no enquiry was conducted for unauthorised absence of the respondent and in view of the law laid down by
Apex Court that a major punishment cannot be awarded on a minor conduct of absence from duty, in abject disregarded of rights of principles of
natural justice. It may not be out of place to observe that number of Police Officers and their family members have been killed by the militants for
the sole reason that the Officers were doing their duties and whether there was a genuine threat extended to the respondent and to his family
members, should have been verified by the concerned authorities and in this regard it was mandatory to conduct an enquiry and to give an
opportunity to the respondent to explain the cause of his absence and after considering the explanation submitted, take a decision for awarding the
adequate punishment, commensurate with the genuineness of the submissions made in the explanation and the requirement to enforce discipline and
ensure attendance on duty by the competent authority. This is precisely what does not seem to have been done and in abject disregard to the
provisions of law, the services of the respondent, as held by two concurrent Courts, have been terminated, without conducting any enquiry and
observing that there is a genuine threat to the life and limb of the respondent and his family members. There is no scope to interfere with the
concurrent findings of fact on this aspect.
The services of the respondent, having been terminated, without following the process of law, is an order which is not only unjustified but also
illegal. The respondent would have continued in service but for the order of termination, which has prevented him to resume his duties, when he
approached the department, way back in the year 1990 and on this ground respondent cannot be deprived of the wages, he would have earned,
but for the illegal order that was passed by the appellants. The Apex Court, while considering the release of back wages and setting aside the
order of termination from service, has observed that if the order of termination has prevented a person to attend his duties and the order of
termination has been found ab initio void, then the 50% back wages must be allowed. The question is accordingly answered.
From the adjudication of substantial questions of law, there is no merit in the appeal as the suit filed by the respondents within time, therefore, the
appeal is dismissed. However, considering the fact that the respondent has not worked for the period for which back wages have been permitted,
therefore, it will serve the ends of the justice if the order permitting the back wages is modified to the extent that only 50% of the back wages due
and payable to the respondent are permitted. The other benefits granted by the trial Court and confirmed by the 1st appellate Court shall remain
intact.
No order as to costs.