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Sowinder Singh Nihal Singh Vs. the Punjab State Through the Home Secretary of the State Government - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 625 of 1958
Judge
Reported inAIR1966P& H109; (1967)ILLJ220P& H
ActsLimitation Act, 1908 - Schedule - Article 120; Limitation (Amendment) Act, 1963 - Schedule - Article 113
AppellantSowinder Singh Nihal Singh
RespondentThe Punjab State Through the Home Secretary of the State Government
Appellant Advocate G.P. Jain, Adv. for; H.R. Mahajan and; S.S. Mahajan,
Respondent Advocate M.S. Pannu, Deputy Advocate-General
DispositionAppeal dismissed
Cases ReferredShyam Sundar Misra v. Municipal Chairman Parlakimedi
Excerpt:
- - the learned district judge endorsed the finding of the original court on this point and dismissed the appeal. that section only gave him a right to appeal to the government but did not prevent him from filing a suit straightway challenging the validity of the resolution on any of the grounds available to him in law such as the non-observance of the principles of natural justice and the like. in such a suit no question of the court not giving relief on the ground of his failure to pursue another remedy would arise as in the case of writ proceedings. hence his suit which clearly was filed beyond the period of limitation prescribed by section 326, of the act was barred by limitation. ' similarly, orissa high court in like circumstances in the case of shyam sundar misra v......from service was passed on 5-3-1951 and communicated to him on 19-3-1951 and even extending the period of limitation by the period of notice required under sub-section (1) of section 326 his suit filed on 8-12-1952 was hopelessly beyond time. his suit would, therefore, be barred unless it can be said that the cause of action accrued on 8-4-1952 when the order dismissing his appeal was communicated to him by the government.the right of appeal given to him did not, however, involve the consequence that the order of dismissal could not be operative by its own force but would continue in abeyance until the decision of the appeal once an appeal was filed by the employee so that it could be said that the cause of action arose on the communication of the dismissal in the appeal. there was.....
Judgment:

P.D. Sharma, J.

1. The facts which have given rise to the present second appeal against the judgment and decree of the learned District Judge, Gurdaspur, are these: Sowinder Singh, Head Constable was dismissed from service on 19th June, 1950 by the Superintendent of Police. Thereupon he instituted a suit on 1st October, 1956 in the Court of the learned Senior Sub-Judge, Gurdaspur, for a declaration that he was still a Head Constable in the Punjab Police and his reversion to the time-scale Foot Constable and ultimate dismissal from service was illegal, inoperative and ultra vires and as such he was entitled to all the emoluments from 19th June, 1950 upto the date of restoration. He also prayed for a permanent injunction by way of consequential relief restraining the Punjab State, defendant, from removing him from his post as a Head Constable. He alleged that his appeal: against the order of the Superintendent of Police dismissing him from service was also rejected by the D. I. G. Police on 15th October, 1950 and the revision petition by the I. G. Police on 27th December, 1950. The defendant, however, maintained that the order of dismissal was in all respects valid, that the suit was barred by time and the notice served by the plaintiff under Section 80, Civil Procedure Code, was not in order.

The trial Judge framed the following issues:--

1. Whether a valid notice under Section 80, C. P. C. was given by the plaintiff and if not, with what effect ?

2. Whether the suit is within limitation ?

3. Whether the order of reversion and the order of dismissal in question were illegal, ultra vires, void and inoperative for reasons given in the plaint and to what relief is the plaintiff entitled ?

4. Relief.

He decided issue No. 1 in favour of the plaintiff and issue No. 2 against him. He gave no finding on issue No. 3. In the result the suit was dismissed. The only point agitated before the learned District Judge was whether the suit was in time. The learned District Judge endorsed the finding of the original Court on this point and dismissed the appeal.

2. The learned counsel for the appellant addressed his arguments only on the point whether the suit was filed within time. In his opinion Article 120 of the Indian Limitation Act covered the case and time began to run from 27th December, 1950 when the revision petition was dismissed by the I. G. Police or at the most from 15th October, 1950, when the D. I. G. Police dismissed his appeal against the impugned order of the Superintendent of Police. He was not able to cite any authority in support of his arguments. On the other hand, the-Supreme Court in Sita Ram Goel v. Municipal Board, Kanpur, AIR 1958 SC 1036, held--

'that the suit was barred by limitation. Prima facie the period of six months provided by Sub-section (3) of Section 326 would commence to run after the accrual of the cause of action-and the cause of action for the suit of the plaintiff was his wrongful dismissal. The resolution-dismissing him from service was passed on 5-3-1951 and Communicated to him on 19-3-1951 and even extending the period of limitation by the period of notice required under Sub-section (1) of Section 326 his suit filed on 8-12-1952 was hopelessly beyond time. His suit would, therefore, be barred unless it can be said that the cause of action accrued on 8-4-1952 when the order dismissing his appeal was communicated to him by the Government.

The right of appeal given to him did not, however, involve the consequence that the order of dismissal could not be operative by its own force but would continue in abeyance until the decision of the appeal once an appeal was filed by the employee so that it could be said that the cause of action arose on the communication of the dismissal in the appeal. There was nothing in Section 58(1) which could lead to such a conclusion. That section only gave him a right to appeal to the Government but did not prevent him from filing a suit straightway challenging the validity of the resolution on any of the grounds available to him in law such as the non-observance of the principles of natural justice and the like. In such a suit no question of the Court not giving relief on the ground of his failure to pursue another remedy would arise as in the case of writ proceedings. Nor did the provisions of Sub-section (2) of Section 58 which gave the Government power to keep the servant under suspension pending appeal lead to the consequence of holding that the filing of appeal operated to suspend the order of dismissal till the decision in the appeal.

The special resolution passed by the Board dismissing the plaintiff could not be equated with a decree inasmuch as departmental enquiries even though they culminated in decisions on appeals or revisions could not be equated with proceedings before the regular courts of law. Hence it was not possible to apply the principle relating to decrees and hold that though the cause of action for the suit arose on the date on which the order of the Board was communicated to the plaintiff, the filing of the appeal within the prescribed period of limitation suspended that cause of action and merged that cause of action in the cause of action which would accrue to him on the decision of his appeal by the State Government.

Even, if the analogy of a decree applied it did not help the plaintiff to save his suit from the bar of limitation because in the appeal the order of dismissal was confirmed and in such cases the principle applicable to decrees was that the decree of the trial Court remained operative. That being the position the cause of action for the suit arose the moment the resolution of the board was communicated to the plaintiff and the period of limitation commenced from the date of such communication. Hence his suit which clearly was filed beyond the period of limitation prescribed by Section 326, of the Act was barred by limitation.'

Similarly, Orissa High Court in like circumstances in the case of Shyam Sundar Misra v. Municipal Chairman Parlakimedi, AIR 1964 Orissa 111, observed--

'Unless there is any specific statutory provision to that effect or unless the High Court grant a stay order, mere filing of an appeal or a writ petition under Article 226 of the Constitution does not save limitation.'

The appellant has not proved that the D. I. G. Police or the I. G. Police on his filing an appeal or revision petition stayed the operation of the order of the Superintendent of Police dismissing him from service. Therefore, the period of limitation commenced from the date of the order of the Superintendent of Police i. e., 19th June, 1950. The suit was filed more than six years after this date and hence was eminently barred by time.

3. In the result, the appeal fails and is hereby dismissed with costs.


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