Punjab State and Others vs Hardev Singh

R.L. Anand, J.—The State of Punjab has filed the present R.S.A. and it has been directed against the judgment and decree dated 8.2.1994 passed by the Court of Additional District Judge, Amritsar, who affirmed the judgment and decree dated 4.6.1993 passed by the Court of Sub Judge Ist Class, Amritsar, vide which the suit of the plaintiff-respondent Hardev Singh for declaration was decreed.

The case set up by the plaintiff in the trial Court was that the office orders dated 12.6.1987, No. 19903OA/B, passed by the Senior Superintendent of Police, Amritsar, (for short the S.S.P.) after dispensing with the regular departmental inquiry while invoking the powers under Article 311(2) of the Constitution of India, dismissing the plaintiff from service with effect from 12.6.1987 and the subsequent orders dated 20.8.1987 and 31.10.1989 passed by the Deputy Inspector General of Police, Jalandhar, Range, Jalandhar (for the ''the D.I.G.'') and the Inspector General of Police, Punjab, (for short ''the I.G.''), respectively confirming the above said order of dismissal of the plaintiff from service, while rejecting the appeal and the revision respectively, preferred by the plaintiff against his dismissal were wrong, illegal, mala fide, cryptic capricious, without jurisdiction, non-speaking and had been passed with a prejudiced mind and in violation of the principles of the Constitution of India, Punjab Police Rules and the principles of natural justice denying the plaintiff and opportunity to defend his case, were thus void, inoperative against the plaintiff, and that the plaintiff continued to be Constable in the Punjab Police, District Amritsar as before 12.6.1987 and was entitled to all the pay, powers and privileges attached with the post of Constable. The plaintiff alleges that after having obtained the necessary qualifications he joined the Police Department on 4.11.1971 as Constable and right from the first day of his enrolment as Constable he has been working with extreme honesty and devotion in the interest of the Police Force without giving any cause of complaint to his superiors. It was to the sheer misfortune of the plaintiff that he was suddenly dismissed from service vide order dated 12.6.1987 passed by the S.S.P. Amritsar. Before passing the order of dismissal he was never charge sheeted, nor any show cause notice was given to him and nor any departmental in quiry was held. The order was passed by the S.S.P. under the provisions of the Punjab Police Rule 16.1 read with Section 7 of the Police Act, 1861, and Article 311(2) of the Constitution of India. It was given out in the order itself that a regular departmental inquiry was being dispensed with as in the opinion of the punishing authority, i.e., the S.S.P. it was not practicable to hold the departmental inquiry. The allegations which led to the passing of the said order were that it was reported that the plaintiff was mixing-up with the extremists and was giving them all help by leaking out the information, classified in nature. It was further given in the order itself that after going through the facts and circumstances of the case, the S.S.P. was satisfied that a regular departmental inquiry, as envisaged under the Punjab Police Rules, 16.24 was not reasonably practicable because no witness was likely to depose against the plaintiff due to the fear of injury to the witness''s life. The S.S.P. further went on to record that owing to the abovesaid facts, he was of the opinion that the plaintiff''s retention in service was undesirable keeping in view the maintenance of the law and order. Accordingly, the plaintiff was being dismissed from service with immediate effect vide office order dated 12.6.1987. The plaintiff preferred an appeal against the said order, which was dismissed by the D.I.G. vide order 20.8.1987. The revision filed by the plaintiff was also dismissed by the I.G. vide order dated 31.10.1989. The plaintiff alleges that the impugned orders are illegal, null and void and are not binding upon his rights. He served a notice u/s 80 of the C.P.C. before filing the suit, but to no effect.

The suit was contested by the State on the plea that it was barred by limitation. The plaintiff was dismissed from service on 12.6.1987 but he filed the present suit after more than three years on 12.1.1991. The State admitted the receipts of the notice u/s 80 C.P.C. but pleaded that the notice was not valid and legal. The defendant-State admitted that the plaintiff joined the Police Department on temporary basis as Constable on 4.11.1971 and he was dismissed from service on 12.6.1987 under Article 311(2) of the Constitution of India read with Rule 16.1 of the Punjab Police Rules read with Section 7 of the Police Act, 1861. No departmental inquiry was required in this case. The order dated 12.6.1987 was passed in detail and thus in speaking one. The order is valid, operative and according to the Punjab Police Rules. The allegations against the plaintiff were that while he was posted at Police Post Chola Sahib in Police Station Sirhali, District Amritsar, he was mixing up with the extremists and used to visit them and used to leak out the information of classified nature. The departmental inquiry against the plaintiff and on the basis of that, the order of dismissal was passed by the competent authority after satisfying himself that in the facts and circumstances of the case no departmental inquiry was necessary to be conducted under Article 311(2) of the Constitution of India. The provisions of Punjab Police Rule, 16.38 were not applicable to the facts in hand and the prior approval of the District Magistrate was not necessary. The orders passed in appeal as well as in revision were also valid.

The plaintiff filed replication to the written statement in which he reiterated his allegations made in the plaint, by denying those of the written statement.

From the above pleadings of the parties, the trial Court framed the following issues :

Whether the suit is barred by time? OPD.

Whether a legal and valid notice u/s 80 C.P.C. was served upon the defendants? If so, what is its effect? OPD.

Whether the orders dated 12.6.87, 20.8.87 and 31.10.89 are illegal, void and without jurisdiction and inoperative against the rights of the plaintiffs? OPP.

Whether the plaintiff is entitled to the declaration and consequential relief prayed for?

Relief.

The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, the learned trial Court decree the suit by holding that the same is within limitation.

First appeal was filed by the State of Punjab in the Court of Additional District Judge, Amritsar, who vide the impugned judgment and decree dated 8.2.1994 dismissed the appeal and aggrieved by the judgments and decrees of the Courts below, the State of Punjab has filed the present R.S.A.

I have heard Shri P.S. Chhinna, Senior D.A.G., Punjab, appearing on behalf of the appellants, and Shri D.S. Pheruman, Advocate, appearing on behalf of the respondent, and with their assistance have gone through the record of this case.

The solitary point which was canvassed before me on behalf of the learned counsel for the appellants was that the present suit of the plaintiff-respondent was clearly barred by limitation. Mr. Chhinna submitted that the suit of the plaintiff was governed by the provisions of Article 100 of the Limitation Act and the period for filing the suit was one year. He submitted that the impugned order was passed on 12.6.1987. Even if the limitation is computed from the date of the order of the revision passed on 31.10.1989, still the suit of the plaintiff, which was filed on 21.1.1991 is prima facie barred by limitation.

On the contrary, Shri D.S. Pheruman, Advocate submitted that the suit of the plaintiff is to be governed by Article 113 of the Limitation Act and the limitation is 3 years, which is to be computed from the date of the passing of the order of revision, i.e, 31.10.1989 and this suit is prima facie within limitation.

After considering the rival contentions of the parties this Court is of the con sidered opinion that the arguments submitted by the learned counsel for the appellants are devoid of any merit in view of the law reported as S.S. Rathore Vs. State of Madhya Pradesh, , wherein it was held as under:

"In the case of a service dispute the cause of action must be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made though the remedy has been availed of, a six months'' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen."

The appeal as well as the revision filed by the plaintiff were statutory and, therefore, the period of limitation would start from 31.10.1989 and the plaintiff could file the suit within three years from the date when the last adverse order was passed against him, i.e., his limitation would start from 31.10.1989. In State of Punjab and Ors. v. Gurdev Singh, Ashok Kumar AIR 1991 S.C. 2219, it has been held that when an employee has been dismissed from service, his suit for declaration that his dismissal was wrongful or ultra vires is to be governed by Art. 113 of the Limitation Act. The operative portion of the judgment of the Hon''ble Supreme Court runs as follows :

"A suit for declaration that an order of dismissal or. termination from service passed against the plaintiff dismissed employee is wrongful, illegal or ultra vires is governed by Article 113. It cannot be said that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that the dismissal or discharge was void or inoperative. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall 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 party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for."

The article which has been relied upon by Shri Chhinna is not thus applicable to the facts in hand. Moreover, the plea which has been taken up by the defendants in the written statement was that the plaintiff could file the suit within three years from the date of order of dismissal, i.e. 12.6.1987. It was not the pleaded case of the defendants that Articles 100 of the Limitation Act would be applicable in his case and that the plaintiff could file the suit within one year. Even if it is assumed for the sake of argument that the defendants are permitted to take the legal plea, still I have given the answer above by holding that the cause of action which arose to the plaintiff for filing the suit for the purpose of limitation would start with effect from 31.10.1989 and not with effect from 12.6.1997. Thus I affirm the findings of the courts below on issue No. 1 and hold that the suit of the plaintiff was not barred by time and that it was within limitation.

No other points was raised before me in order to attack the findings of the Courts below.

Consequently, I sec no merit in this appeal, which is hereby dismissed, leaving the parties to bear their own costs.