Punjab State Electricity Board vs Mrs. Joginder Kaur

N.K. Kapoor, J.—This is defendant''s regular second appeal against the judgment and decree of Addl. District Judge, Patiala, whereby the appeal filed against the judgment and decree dated 1.4.1989 of Senior Sub Judge, Patiala, was affirmed.

Briefly put, plaintiff filed a suit for declaration to the effect that the order removing her from service w.e.f. 5.8.1972 is unconstitutional, null and void, non-existent, discriminatory and against the principles of natural justice and thus the plaintiff is entitled to be reinstated with all rights, benefits and privileges with a mandatory injunction directing the defendant to reinstate the plaintiff and give all the rights, benefits and privileges along with interest.

Plaintiff was working as lower Division Clerk under the Punjab State Electricity Board. She was removed from service w.e.f. 5.8.1972. As per the case set up by the plaintiff, she proceeded on leave due to her sudden illness and accordingly applied for leave from 5.8.1972 to 1.10.1972. Since the plaintiff could not join the post on account of her illness, her services were terminated vide order dated 21.4.1973.

Defendant in its written statement controverted all the material allegations levelled in the plaint. It has been stated that the plaintiff proceeded on leave without prior sanction of her leave application. Her request for leave was declined and she was informed. Despite it, she did not resume duty and so remained willfully absent. It is in these circumstances that disciplinary action against her was initiated resulting ultimately in termination of her services.

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

1) Whether the order dated 21.4.1973 removing the plaintiff from service from 5.8.1972 is illegal, null and void etc. as alleged ? OPP.

2) Whether the plaintiff is entitled to the mandatory injunction as prayed for ? OPP.

3) Whether the suit is within limitation ? Opp.

4) Relief.

Trial Court on the basis of evidence held that the impugned order dated 21.4.1973 removing the plaintiff from service is illegal, null and void and thus set aside. Accordingly, the defendant was directed to reinstate her to the post of Lower Division Clerk forthwith.

The appellate Court too did not find any merit in the appeal and consequently dismissed the same.

Learned counsel for the appellant has confined the challenge to the decision of the Courts below in respect of issue No. 3. According to the counsel, suit for setting aside the order dated 21.4.1973 was filed on 24.2.1980 i.e. long after the expiry of period of limitation as prescribed under the Limitation Act. Period prescribed for a declaration that the order of removal is null and void and is not binding is three years from the date of order. Thus, the suit Per se was hopelessly time barred. This way both the Courts have erred in law in not dismissing the suit of the plaintiff on account of bar of limitation. In support of his above plea, reference was made to the decision of the apex Court in case reported as State of Punjab and Ors. v. Gurdev Singh, Ashok Kumar AIR 1991 SC 2219.

The plea, raised by the counsel indeed has merit. A bare perusal of the plaint reveals that the plaintiff has sought declaration to the effect that the order of removal from service passed by the defendant is null and void, discriminatory and otherwise unjust. Such a declaration could be sought within three years from the date of passing of such order. The observation of the Courts below that there is no limitation for challenging an order which is illegal, null and void is contrary to the judicial pronouncement referred above. In Gurdev Singh''s case (Supra), it has been held that suit for declaration that the order of dismissal or termination from service passed against the plaintiff dismissed employee is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act. 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. 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. Following the decision of the apex Court, I accept the appeal, set aside the judgment and decree of the Courts below and dismiss the suit of the plaintiff. No order as to costs.