S S RATHORE Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The question involved in this case is one of limitation. The appellant was dismissed from service by the Additional Collector of betul, State of Madhya Pradesh on 13/01/1966. He preferred a statutory appeal under the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1956. The said appeal was dismissed on 31/08/1966. Thereafter he instituted a suit after issuing a notice as required by law to the State government under S. 80 of the Civil Procedure Code, 1908. The suit was filed on September 30,1969. It is not disputed that if the period of limitation is calculated from the date of dismissal of the appeal the suit would be in time, under the relevant article of Limitation Act. But if the period of limitation has to be calculated from the date of the original order of dismissal the suit would be out of time. In the present case the suit was dismissed by the trial court on the ground of limitation, and it has been affirmed by the first appellate court and by the High court in second appeal. The High court, while dismissing the appeal, relied upon a decision of this court in Situ Ram Goel v. Municipal Board, kanpur which was a decision rendered by five learned Judges of this court in which it. had been held that in suits for setting aside the order of dismissal the time for instituting it would begin to run from the date of communication of the original order of dismissal. In taking this view this court relied upon an earlier decision in State of U. P. v. Mohd. Nooh It has to be pointed out at this stage that in Collector of Customs v. East India Commercial Co. Ltd. another Constitution bench of this court has observed that Mohd. Nooh case was a case which depended on its own facts. Having said so the Constitution bench declined to. follow the principles laid down by the Constitution bench in Mohd. Nooh case.

(2.) In Raghubir Jha v. State of Bihar a division bench of this court has taken the view that the period of limitation in cases of this nature should be calculated from the date of disposal of the appeal preferred against the original order of dismissal. We feel that the decision of the division bench is more reasonable than the rigid view which had been taken by this court in Sita Ram Goel case. It is relevant to refer to a passage from Sita Ram Goel case which appears :

(3.) Such unfortunate results should be avoided, it it is possible to do so. We are of the view that the decision in Sita Ram Goel cuse which has been decided by a bench of five Judges requires to be reconsidered. We therefore refer this case to a larger bench. The papers may be placed before the Hon'ble the chief justice of India for further directions.