The State of Punjab vs Babu Singh

N.K. Sodhi, J.—The plaintiff-respondent who is a Head Constable was posted as Cashier in the Police Lines at Faridkot. He is alleged to have misappropriated some cash in his custody and was accordingly charge-sheeted. After a regular departmental enquiry he was served with a show cause notice dated 14.10.1982 proposing to remove him from service. The reply filed by him to the show cause notice was not found satisfactory and, therefore, the Superintendent of Police, as per his order dated 11.3.1983 imposed a punishment of forfeiture of two years of approved service. This order was challenged by filing a suit claiming a declaration that it was null and void on the ground that the inquiry conducted was in violation of the principles of natural justice and that the plaintiff had not been supplied with a copy of the report of the preliminary enquiry and that the departmental instructions had been flagrantly violated. The suit was filed on 22.5.1986. The State of Punjab contested the suit and denied the allegations made by the plaintiff. It was pleaded that the suit was not maintainable and that the same was barred by time. It was further pleaded that the order forfeiting two years'' ser vice of the plaintiff was passed by the competent authority after holding a regular departmental enquiry in which he was afforded full opportunity to defend himself and that the charge levelled against the plaintiff stood proved.

The pleadings of the parties gave rise to the following issues :-

Whether the suit is not maintainable? O.P.D.

Whether the suit is time barred? O.P.D.

Whether the suit is liable to be dismissed for want of notice u/s 80, C.P.C.? O.P.D.

Whether the suit is bad for non-joinder of necessary parties? O.P.D.

Whether the order dated 11.3.1983 passed by the Supdet. of Police, Faridkot is illegal and null and void? O.P.D.

Whether the defendant is liable to refund of Rs. 5,000/- to the plaintiff? O.P.P.

Whether the written statement is not signed and verified by the proper person? O.P.P.

Relief.

All the issues, other than issue No. 7 were decided in favour of the plaintiff and against the defendant-State. The suit was consequently decreed.

On a consideration of the entire evidence led by the parties, the Courts below came to the conclusion that the impugned order was illegal and null and void. It was held that the enquiry was initiated against the plaintiff in October, 1982, whereas he had remained cashier from October, 1976, to September, 1977 and this according to the Courts below was in violation of Rules 23 and 24 of the Punjab Civil Service (Punishment and Appeals) Rules. Since the enquiry was not completed within six months of the alleged occurrence, the same stood vitiated. A copy of the report of the preliminary enquiry which was held by the department had not been supplied to the plaintiff and on this account also the enquiry was held to be illegal. Since the courts below found that the impugned order was null and void they decided the issue of limitation in favour of the plaintiff and against the defendant. State as according to them there was no period of limitation prescribed for challenging an order which was null and void. The present second appeal has been filed by the State of Punjab challenging the judgments and decrees of the Courts below.

The argument of the learned counsel for the State is that even if the impugned order is held to be null and void, the suit challenging the same had to be filed within three years from the date of the order and for this submission he placed reliance on the judgment of the Supreme Court in State of Punjab v. Gurdev Singh AIR 1991 S.C. 2219. I find merit in this submission. In the present case, the plaintiff-respondent has been imposed a punishment of forfeiture of two years service by an order passed on 11.3.1983. Even if this order is illegal or null and void, it will have to be set aside by a court of competent jurisdiction. The period of limitation for a suit challenging such an order is governed by Article 113 of the Limitation Act, 1963 and it is three years from the date of the passing of the order. It has been held by their Lordships of the Supreme Court in Gurdev Singh''s case (supra) that even an illegal and null and void order has de-facto operation until it is declared to be void or a nullity by a competent court. For getting such an order declared a nullity, the plaintiff has to approach the court within the period of limitation prescribed by the Limitation Act, 1963. A suit for declaration challenging an order of punishment is not covered by any specific Article under the Limitation Act and therefore, it must fall within the residuary article and the period of limitation prescribed there under is three years from the accrual of the cause of action which in the instant case was the date of the impugned order i.e. 11.3.1983. It is not in dispute that the present suit was filed on 22.5.1986. The suit was thus filed after the period of limitation had expired. It is clearly barred by time. The finding of the Courts below to the contrary is, therefore, set aside.

Consequently, the appeal is accepted, the judgment and decree of the Courts below set aside and the suit of the plaintiff-respondent dismissed. No costs.