Panchayat Samiti Bhogpur vs Nirmal Singh and Another

R.K. Nehru, J.—The judgment disposes of Regular Second Appeal Nos. 1046 of 1979 and 1166 of 1984.

Regular Second Appeal No. 1046 of 1979 is directed against the judgment and decree of the first Appellant Court dated January 30, 1979 reversing on appeal those of the trial Judge and decreeing the suit of the respondent for the recovery of Rs. 12,296/- with costs.

Regular Second Appeal No. 1166 of 1984 is directed against the judgment and decree of the first Appellant Court dated January 24, 1984 affirming on appeal those of the trial Judge decreeing the suit of the plaintiff-respondent for the recovery of Rs. 54065.36 Paise.

4.Facts:-

Nirmal Singh plaintiff-respondent (herein-after the plaintiff) was appointed as Head Clerk by the Panchayat Samiti, Bhogpur (for short the Samiti) on the recommendation of the Selection Committee vide order dated January 16, 1967. The Samiti terminated his services vide order dated April 1, 1967. Subsequently the post of Head Clerk was also abolished. The plaintiff successfully challenged the order of termination in appeal before the Deputy Commissioner, Jalandhar. The plaintiff asked the Samiti to assign him the duties but the Samiti did not receive the orders of the Deputy Commissioner. It did not assign him the duties nor paid him arrears of salary, which led to the filing of the suit.

The Samiti defended the suit on the ground that the order of Deputy Commissioner, Jalandhar was patently without jurisdiction. The post of Head Clerk was rightly abolished and as such the plaintiff had no right to maintain the suit.

The trial Judge, on the pleadings of the parties, framed the following issues:-

1) Whether notice u/s 80 C.P.C. is necessary? If so, its effect?

2) Whether this Court has jurisdiction to try the suit?

3) Whether the order dated April 1, 1967 regarding termination of the services of the plaintiff and abolition of the post of Head Clerk was illegal, wrong, against rules and regulation and principles of natural justice?

4) Whether the plaintiff was reinstated by the order of the Punjab State on appeal/representation of the plaintiff as alleged in para No. 6 of the plaint? If so, its effect?

5) Relief.

Issue No.1 was decided in favour of the Samiti and against the plaintiff. It was held that notice ought to have been served before filing the suit. Issue No. 2 was decided in favour of the plaintiff. Issue Nos. 3 and 4 were decided against the plaintiff. Issue No. 5 was decided against the plaintiff and it was held that he was not entitled to the relief sought for. On ultimate analysis, the suit was dismissed.

Aggrieved against the judgment and decree of the trial Judge, dated July 20, 1976, the plaintiff challenged the same in first appeal. In appeal, the first Appellate Court vide its judgment dated March 31, 1977 deleted issues No. 3 and 4 as framed by the trial Judge and recast these issues as under :-

Issue No. 3: Whether the plaintiff was reinstated as alleged in the plaint?

Issue No. 3A: Whether the order in question is in the nature of clarification only? If so, its effect?

Issue No. 3-B: Whether the appointment of the plaintiff was not in accordance with the rules ?If so, its effect?

Issue No. 4 :- Whether the defendant is debarred from taking pleas put forth in para No. 6 of the written statement by his acts and conduct?

After recasting these issues, the first Appellate Court asked for a report under Order 41 Rule 25 C.P.C. from the trial Judge. Smt. Bakhshish Kaur, the then Senior Subordinate Judge, Jalandhar in her report dated August 28, 1977 decided all the issues framed by the first Appellate Court in favour of the plaintiff. Since all these issues have been decided in favour of the plaintiff, the only impediment in his way for securing a decree in his favour was decision under Issue No. 1. The first Appellate Court held that it is not the requirement of law that no suit can be filed against the Panchayat Samiti, without serving a prior notice on it. The learned counsel for the Samiti did not challenge die finding recorded by the Senior Subordinate Judge on the reframed issues by the first Appellate Court. The first Appellate Court reversing the finding of the trial Judge on Issue No. 1 decree the suit of the plaintiff.

The Samiti has challenged the judgment and decree of the first Appellate Court in this appeal.

The plaintiff filed second suit for the recovery of Rs. 56,498/- being unpaid arrears of salary from 1971 to August 14, 1980. The suit was contested on. numerous grounds.

From the pleadings of the parties, the following issues were framed :-

1) Whether the plaintiff is entitled to recover the amount claimed? OPP 2) Whether the suit is within limitation? OPP 3) Whether the judgment dated 30.1.1979 operates as res judicata against the defendant? OPD 4) Whether any notice was required to be served on the defendant before institution of the suit? If so, what is the effect of non-service of notice? OPD 5) Whether the claim in the suit is barred by Order 2 Rule 2 C.P.C.? OPD 6) Whether the suit is not maintainable in the present form? OPD 7) Whether the suit is liable to be stayed? OPD 8) Whether the plaintiff is estopped by his act and conduct from filing this suit? OPD 9) Whether the court has no jurisdiction to entertain and try the suit? OPD 10) Relief. 12. Under issue No. 2, the trial Judge held that the plaintiff could recover the arrears of salary for more than 3 years. Issues No. 3, 5, 6, 7 and 8 were disposed of together and were answered in favour of the plaintiff and against the defendant. Issue No. 9 was answered in favour of the plaintiff and it was held that the Civil Court had jurisdiction. Under issue No. 4, it was held that no notice was required to be served before filing the suit. Under issue No. 1, it was held that the plaintiff was entitled to arrears of salary as claimed in the suit. On ultimate analysis, the suit was decreed for recovery of Rs. 54,065.36 Paise.

The Samiti challenged the judgement of the trial Judge in appeal before the first appellate Court. The finding under issue No. 2 was challenged and the first appellate Court came to the conclusion that the cause of action to bring the suit for recovery of arrears of salary arose when the plaintiff was reinstated on April 8, 1979 and also on the date when the first appellate Court gave judgment on January 30, 1979 (giving rise to Regular Second Appeal No. 1046 of 1979).

In these appeals, the following points arise for consideration:-

(i) Whether the suit giving rise to R.S.A. No. 1046 of 1979 is within limitation?

(ii) Whether it was mandatory to serve notice u/s 80, Civil Procedure Code, on the appellant?

Indisputably, the plaintiff-respondent''s services were terminated on April 1, 1967. He successfully challenged the order of termination before Deputy Commissioner, Jalandhar. The order of termination was set aside by the Deputy Commissioner, Jalandhar on July 31, 1969. The Panchayat Samiti assailed the order of Deputy Commissioner in revision before the Commissioner, Jalandhar Division, Jalandhar. The same was rejected on February 2, 1971 holding that the appeal/revision was not competent. The Samiti filed a suit for permanent injunction restraining the plaintiff-respondent form forcing his entry into the office. The suit was dismissed by Sub Judge 1st Class, Jalandhar by judgment dated November 22, 1971 (Ex. P. 4). The appeal against the judgment and decree dated November 22, 1971 was dismissed by the Senior Subordinate Judge, Jalandhar (with enhanced appellate powers) vide judgment dated May 29, 1972 (Ex. P.5) The plaintiff-respondent was allowed to work as a Head Clerk and to gain entry into the office of the Panchayat Samiti. This statement was accepted by the counsel for the Panchayat Samiti and accordingly the appeal was dismissed.

The plaintiff-respondent filed suit for recovery of wages on March 13, 1981 (giving rise to R.S.A. No. 1166 of 1984 and the second suit was filed by him for recovery of wages for three years (giving rise to R.S.A. No. 1046 of 1979).

The cause of action to recover wages arose on the date when the order of termination was set aside by the Deputy Commissioner on July 31, 1969. The suit was filed on March 13, 1981, which was obviously beyond limitation. It is not firmly settled by the apex Court that suit for declaration that the order of dismissal is wrongful or ultra vires the Constitution falls within the purview of residuary provisions of Article 113 of the Limitation Act and the limitation prescribed for the suit is three years from the date of order of dismissal.

See in this connection, the judgment of the apex Court in State of Punjab and Ors. v. Gurdev Singh AIR 1991 S.C. 2219, where it was held thus:-

"The Allahabad High Court in Jagdish Prasad Mathur and Others Vs. United Provinces Government, , has taken the view that a suit for ''declaration by a dismissed employee on the ground that his dismissal is void is governed by Article 120 of the, Limitation Act. A similar view has been taken by Oudh Chief Court in AIR 1943 368 (Oudh) . That, in our opinion, is the correct view taken. A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act. The decision to the contrary taken by the Punjab and Haryana High Court in these and other cases (State of Punjab v. Ajit Singh. (1988) 1 SLR 96 and (ii) State of Punjab v. Ram Singh (1986) 3 SLR 379 is not correct and stands overruled."

In the light of this authoritative pronouncement, there is no escape from the conclusion that the suit filed for recovery of wages giving rise to R.S.A. No. 1166 of 1984 is patently beyond limitation.

The other point which arises for consideration is whether a notice u/s 80, Civil, Procedure Code, has to be issued to the Panchayat Samiti before filing the suit. The Punjab Panchayat Samitis and Zila Parishads Act, 1961 (for short, the Act) was enacted to recognise local administration in rural areas. The District Boards had outlived their utility and had neither the traditions nor the resources to take up comprehensive development works. The act was enacted to abolish District Boards and replace them by the Panchayat Samitis at tehsil and block level and Zila Parishads at district level, which would be organically linked with the Panchayats as units of Local Government and rural development. The Panchayat Samiti or a Zila Parishad can sue and be sued in its own name. There is no provision analogous to Section 80, Civil Procedure Code, in the Act. Section 80 of the code applies to suits against the Government or a public officer, whether the action relates to past or future acts, and is not limited to any particular relief which may Declaimed in the plaint. The suit against the Panchayat Samiti or Zila Parishad is not a suit against the Government. The employees of the Panchayat Samitis or Zila Parishads are not public officers and as such, the provisions of Section 80, Civil Procedure Code, have no applicability to the suits filed against the Panchayat Samiti or the Zila Parishad. The objection has no merit.

For the reasons stated above, R.S.A. No. 1166 of 1984 succeeds, the judgment and decree of the Courts below are set aside and the suit filed for recovery of wages is dismissed. R.S A. No. 1046 of 1979 has no merit and is dismissed'' There will be no order as to costs. Cross-objections No. 16-C of 1993 stand disposed of accordingly.