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Judgment
G.R. Majithia, J.—The defendant-appellants have assailed the judgment and decree of the first appellate Court reversing on appeal those of the trial Judge and decreeing the suit of the plaintiff-respondent for declaration that the order of compulsory retirement from service dated September 23, 1975, passed under Rule 3 of the Punjab Civil Services (Premature Retirement) Rules, 1975 was illegal in this regular second appeal.
The facts:-
The plaintiff-respondent (hereinafter the plaintiff joined the Department of Agriculture, Punjab on April 22, 1947, as a Clerk and was promoted to the post of Accountant in May, 1962; that adverse remarks were recorded in his character roll for the year 1967-68, that he riled representation dated September 12, 1968 against the adverse remarks recorded in his character roll, that in the normal course he would have retired on August 31, 1979 on attaining the age of superannuation, but the Director of Agriculture, Punjab, defendant No. 2 respondent No. 2 (hereinafter defendant No. 2) ordered his compulsolsory retirement from service under Rule 3 of the Punjab Civil Services (Premature Retirement) Rules, 1975 (the Rules, for short). The order of compulsory retirement was challenged principally on the ground that the competent authority took into consideration the adverse remarks recorded in the character roll for the year 1967-68 without disposing of the representation filed by the plaintiff against the same.
The defendant-respondents (hereinafter the defendants) controverted the plea of the plaintiff and maintained that the order of compulsory retirement was valid.
The parties went to the trial on the following issues:-
Whether the order dated 23.9.1975 is unjust, illegal, unconstitutional, mala fide as alleged in the plaint? OPP.
Whether the order dated 6.3.1978 is illegal, unjust, arbitrary as alleged in the plaint ? OPP.
Whether the adverse remarks for the year 1967-68 were recorded mala fide ? OPP.
Whether withholding of plaintiff for promotions to the post of Head Clerk was illegal and unlawful ? OPP.
Whether the suit is liable to be dismissed on the principles of res judicata ? OPD.
Relief.
The trial Judge found issues No. 1, 2, 3 and 4 in favour of the defendants and against the plaintiff and issue No. 5 against the defendant and in favour of the plaintiff and, on ultimate analysis, dismissed the suit of the plaintiff.
In appeal before the first appellate Court, the plaintiff challenged the finding of the trial Court under issues No. 1, 2 and 3 only. The first appellate Court on appraisal of the evidence, found that the entries in the character rolls were not adverse except for the year 1967-68. The plaintiff filed representation against these adverse remarks, which was not disposed of. The defendants did not dispute that the representation was filed against the adverse remarks in the character roll for the year 1967-68, but it was not taken notice of since it was not riled through proper channel. It further found that the defence taken up by the defendants could not be sustained. The plaintiff had filed a representation dated September 12, 1968 against the adverse remarks which were communicated to him and it was incumbent upon the competent authority to dispose of the same before taking the decision that it was not in public interest to retire the plaintiff under Rule 3 of the Rules.
Learned counsel appearing for the State does not dispute the correctness of the findings arrived at by the first appellate Court and submits that on the basis of the material brought on record, the conclusions arrived at by the first appellate Court are unexceptional. He, however, submitted that the suit giving rise to this appeal was barred by time. The order of compulsory retirement was passed on September 23, 1975 and it was challenged in the civil suit giving rise to this appeal on April 28, 1982, after the expiry of three years. The limitation to challenge the order of compulsory retirement was three years, which was to be counted from the date of the order. He further submitted that although this point was not taken up in the written statement, yet this Court should take notice of it in view of the provisions of Section 3 of the Limitation Act. The submission apparently looks attractive, but on closer scrutiny substanceless. The plea of limitation was not raised by the defendants in the written statement or at the trial or in the first appellate Court. It was not even taken up in the grounds of appeal in this Court. The point ought to have been raised and put in issues so that the parties could lead evidence in proof or dis-proof of the same. I am not inclined to permit this point to be raised in second appeal as pure question of law, more particularly when the first appellate Court has found that the order of compulsory retirement was lacking in bona fide. The first appellate Court, on appraisal of the evidence, concluded thus:-
"In the present case, last ten reports of the plaintiff are good except one for the year 1967-68 against which also his representation was not decided. So the order can be held to have been passed in mala fide manner."
If this plea is allowed to be raised at this stage, the other party is going to be taken by surprise.
For the reasons stated above, the appeal fails being devoid of any merit and is accordingly dismissed, but with no order as to costs.