Gursharan Singh vs State of Punjab and Others

Rajiv Narain Raina, J.—The petitioner retired from service on March 31, 2012 as a Sub Divisional Officer in the Irrigation Department. It is his case that in June 1988 while he was posted at Jalandhar Drainage Circle as Junior Engineer he was transferred to Ranjit Sagar Dam, Shahpur Kandi. He says that he was not given the relieving slip to enable him to join at the new place of posting and this position remained for 8 years, i.e., from July 01, 1988 to September 29, 1997 with a break of 5 days in 1988. A departmental inquiry was initiated against him in which he states that he was exonerated. On November 30, 2000 an order was passed which regularized his period absence/leave denying him pay and service benefits for the aforesaid period. After the petitioner retired from service he filed CWP No. 22030 of 2013 in this Court in October 2013 which was disposed of ex parte respondents by order dated 23rd October 2013 [disposed of as withdrawn as not maintainable at this stage; as recorded in the order]. In the petition he challenged the order imposing minor punishment of stoppage of one increment without future effect and prayed for a direction to the competent authority to sanction leave of the kind due from 1988 to 1997. The Court found the order to be appealable under Rule 16 of the Punjab Civil Services (Punishment and Appeal) Rules, 1970. Faced with this situation he sought permission to withdraw his case to avail the alternative remedy. He preferred an appeal on November 11, 2013 to the Principal Secretary, Irrigation Department, Punjab. The appeal remained pending which inaction was impugned by filing CWP No. 14051 of 2014. This Court by an ex parte order disposed of the writ petition on July 22, 2014 on the statement of the counsel that he would be satisfied in case respondent No. 1 is directed to consider and decide the claim of the petitioner in appeal within a reasonable period. This Court expressed no opinion and directed the appellate authority for look into the matter, consider the grievance of the petitioner raised in the appeal and decide it at an early date within a period of three months from the date of receipt of a certified copy of the order. The period of three months had elapsed without decision. Thereafter, the appeal has been rejected by the Irrigation Minister, Punjab and the rejection of the appeal has been conveyed to the petitioner vide Office Memo dated September 22, 2014 that his case has been considered and rejected. The petitioner is in his third round of litigation in the present petition. He complains that the impugned order dated September 22, 2014 (P-5) has been passed in a "haphazard manner without application of mind and the same is non-speaking".

In the considered view of this Court, the cause of action accrued to the petitioner on November 30, 2000 when the impugned administrative order was passed declining monetary benefits for the period of absence from 1988 to 1997. He approached this Court for the first time after retirement in a writ petition which was disposed of as withdrawn with permission to avail the alternative remedy of appeal available to the petitioner. The order was passed in CWP No. 22030 of 2013 on October 23, 2013. In the second round of litigation he received the order dated July 22, 2014 with a direction to the appellate authority to decide the appeal but the Court expressed no opinion in the case. Both the aforesaid orders have resulted in the impugned order passed on September 22, 2014.

This Court is of opinion that the orders passed by this Court on October 23, 2013 and July 22, 2014 ex parte respondent-State cannot be read as postponing the cause of action which had accrued 13 years before the filing of the first writ petition or extending the period of limitation.

Therefore, Mr. Cuccria cannot make use of those orders in assailing the impugned order rejecting his appeal. It is well settled that where remedy is not sought within reasonable time of the accrual of the cause of action or an infringement of a right either by approaching this Court or filing a civil suit, at the option of the person aggrieved, then if the limitations prescribed in instituting a suit have run out in November 2000 or at best in January 2001 by counting the period of notice under Section 80 CPC then the petitioner is not entitled to any relief either from the Court or from the Administrator by operation of bar of limitation. Therefore, it is not necessary for this Court to examine the validity of the impugned order or set it aside for the reason that it is a non-speaking one or has been passed without due application of mind. When the law of limitation is read into the impugned order this Court would be loathe to interfere in this matter in writ jurisdiction to revive a right which has long expired in seeking remedies against acts of alleged infringement of rights. Even if it is said that the right exists, the remedy stands taken away.

The only question which remains to be examined is whether the impugned order passed in 2014 under Court directives [but without expressing any opinion or examining the question of limitation] can give the petitioner a fresh lease of life to assail it on merits even if it contained no reasons, the answer is in the negative. Court orders do not automatically extend periods of limitation by themselves after expiry unless it is expressly observed or held so which is not the case. No fundamental right of the petitioner is involved and protected by Part III of the Constitution of India, which if it were the case, may have relented this Court to act in aid and ignore the issue of limitation or to severely watered it down to examine the case on merits. Limitation would thus have to be read into the impugned order. It is settled that limitation also runs against void orders. [see State of Punjab and Others Vs. Gurdev Singh, where the Supreme Court observed:

"First of all, to say that the suit is not governed by the law of Limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence, Section-2(J) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(J) also defines, "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act. The Court''s function on the presentation of 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 of the specific articles prescribing a period of limitation, it must fail within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act 1908) is a residuary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article 113. According to the third column in Article 113, time commences to run when the right to sue accrues. The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the ''cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted (See: (i) State of Punjab and Others Vs. Gurdev Singh, and (ii) Gannon Dunkerley and Co., Ltd. Vs. Union of India (UOI), ."]

Gurdev Singh is a case involving orders of dismissal from service called in question in suits for declaration instituted belatedly alleging that they are illegal and void and therefore inoperative and limitation would not run against them. However, where suits are barred by limitation and instead resort is had to writ jurisdiction then the question of delay and maintainability of writ proceedings becomes evocative. The broad guidelines underlying writ jurisdiction viv-a-vis bar of limitation and the principle of delay and laches have been adumbrated in the old and ever green classic: State of Madhya Pradesh Vs. Bhailal Bhai and Others, , where the Constitution Bench of the Supreme Court observed though in a fiscal matter but general in its day-to-day utility to writ jurisdiction visa-a-vis suits for declaration brought against infringement of rights as follows:-

"At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the Court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on grounds like limitation, the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution."

(emphasis added)

For these reasons, I find no ground to interfere in this petition and would dismiss the same in limine.