Saroj Bala vs State of Punjab and Others

Sabina, J.—Plaintiff-Saroj Bala had filed a suit for declaration. Additional Civil Judge (Senior Division), Patiala vide judgment and decree dated 20.5.2005 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by District Judge, Patiala vide judgment and decree dated 30.7.2008. Hence, the present appeal.

The facts of the case as noticed by the learned District Judge, in paras 2 to 4 of its judgment read as under:

The brief facts of the case that plaintiff Saroj Bala filed a suit against the State of Punjab, SSP etc. defendants for declaration that L.Rs. of Krishan Pal are entitled to pensionary and retrial benefits on the basis of previous service, which was 24 year, treating the order of dismissal and that of appeal and revision as illegal and void, against the principles of natural justice and against service rules and regulations governing the service of the plaintiff and plaintiff is entitled to fixation of pension and gratuity and other retiral benefits and payment consequence thereof.

The main case of the plaintiff as stated in the plaint is that plaintiff''s husband Krishan Pal joined on 9.6.1971 as Constable and he was dismissed from service on 14.1.1995 and he expired on 20.7.2000. At the time of dismissal, plaintiff had 24 years of service on his credit. The order of dismissal is illegal, null and void and against the principles of natural justice. It is also stated that summary of allegations, charge-sheet and show cause notice and order of dismissal are against the Punjab Police Rules. The plaintiffs husband was not given any personal hearing. There is also no finding to the effect in the dismissal order that plaintiff''s husband was guilty of gravest act of misconduct and complete unfitness for police service and the plaintiff''s long service was not taken into consideration. Therefore, the order is bad in law. On the other hand, the defendants in the written statement have taken the pleas regarding limitation, no cause of action etc. It is also stated that late Constable Krishan Pal used to remain absent from duty, on which his 23 years service was forfeited on permanent basis on different occasions as per details given in the written statement. The pages of character roll containing the entries of these punishments are enclosed. Krishan Pal was dismissed from service on 14.1.1995 for remaining willful absent from duty from 6.4.12991 to 4.6.1991 for 60 days then from 3.11.1991 to 17.12.1991 for 44 days and then from 15.2.1993 to 14.12.1993 for 302 days, total 406 days after conducting a regular departmental enquiry as per rules. ? the copy of dismissal order dated 14.1.95 was given to Krishan Pal under proper receipt. The husband of the plaintiff has not preferred any appeal against the order dated 14.1.95 before DIG and DGP. Hence, the suit of the plaintiff is premature also. Remaining averments are mainly denied.

On the pleadings of the parties, trial court framed the following issues:

(1) Whether plaintiff is entitled to declaration that she is entitled to pensionary and retiral benefits as well as for declaring the order of dismissal as illegal, null and void? OPP

(2) Whether the suit is time barred? OPD

(3) Whether the plaintiff has no cause of action for filling the present suit? OPD

(4) Whether the plaintiff has not exhausted the departmental remedy before filing the present suit? OPD

(5) Whether the plaintiff is estopped from filing the present suit due to his own act and conduct? OPD

(6) Whether suit is not maintainable in the present form? OPD

(7) Relief.

Learned Counsel for the appellant has argued that the courts below had erred in dismissing the suit of the plaintiff. In fact, there was no limitation for seeking relief of pension. Although the husband of the plaintiff had been dismissed from service yet she was entitled to claim relief of family pension. In support of his arguments learned Counsel has placed reliance on State of Punjab v. Inder Singh 1998(sic) S.C.T. 765 , State of Mysore Vs. K. Manche Gowda, ;State of Punjab v. Surjit Singh 2002(1) SCT 404 P&H , State of Punjab v. Surjan Singh 1996(4) SCT 771 P&H , Naresh Kumar v. State of Haryana and Ors. 2009(2) S.L.R. 667, Ram Kumar v. State of Punjab and Ors. 2005(2) S.C.T. 388.

In the present case, Krishan Pal, husband of the plaintiff joined as constable on 9.6.1971 and he was dismissed from service on 14.1.1995. Krishan Pal died on 20.7.2000. Krishan Pal was removed from service on the ground that he had remained absent from duty for 406 days. After holding a departmental enquiry and submission of report by the Enquiry Officer, show cause notice was issued by the punishing authority to the delinquent official. He was also afforded an opportunity of personal hearing and thereafter the order of dismissal was passed by the punishing authority as Krishan Pal neither filed any reply to the show cause notice nor opted for personal hearing. Plaintiff had filed the suit in the year 2002 challenging the order of dismissal after the expiry of period of limitation.

Hon''ble the Apex Court in the case of The State of Punjab and Ors. v. Gurdev Singh Ashok Kumar 1991(5) SLR 1 has held as under:

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 - 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 of 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 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 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) AIR 1930 270 (Privy Council) and (ii) Gannon Dunkerley and Co., Ltd. Vs. Union of India (UOI), .

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 to be 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 & Haryana High Court in these and other cases State of Punjab v. Ajit Singh 1988(1) S.L.R. 96 and (ii) State of Punjab v. Ram Singh 1986(3) S.L.R. 379 is not correct and stands overruled.

In these circumstances, courts below have rightly held that the suit of the plaintiff was time barred as it had been filed after the expiry of period of limitation i.e. three years. Since the husband of the plaintiff was dismissed from service, there is no question of grant of benefit of family pension to the plaintiff.

I have gone through the judgments relied upon by the learned Counsel for the appellant, but the same fail to advance the case of the appellant as they are on different facts.

No substantial question of law arises in this appeal.

Accordingly, this appeal is dismissed.