RAJKOT DISTRICT PANCHAYAT Vs. MADHUBEN M. VORA

JUDGEMENT

(1.) The plaintiff -respondent sued the defendant -appellant for a declaration that the order dated 22 -7 -1994 under which her services were terminated is illegal, null and void and for the recovery of sum of Rs. 12,950 being the amount of salary and the cost of the suit. The learned 2nd Joint Civil Judge, Senior Division, Rajkot decreed the plaintiff -respondent suit on 5 -3 -82 and the order of terminating the services of the plaintiff is declared to be illegal and unconstitutional and for the consequential benefits except the claim of the salary for three years before the date of the suit filed were granted. The defendants -appellants preferred the appeal against the judgment of the Trial Court which came to be decided by 4th Additional Sessions Judge at Rajkot on 20 -3 -85 and the same has been dismissed. It is not in dispute that the plaintiff -respondent also filed the appeal against that part of the judgment of the Trial Court where she has been denied of salary for three years before the date of filing the suit and under the impugned judgment of the First Appellate Court the same has also been dismissed.

(2.) The learned Counsel for the appellant brought to the notice of this Court the fact that the plaintiff -respondent filed the Second Appeal against that part of the impugned judgment of the First Appellate Court but the same has already been dismissed by this Court. The only contention raised by the learned Counsel for the appellants that both the courts have committed serious illegality in holding that suit filed by the plaintiff -respondent was in limitation. The learned counsel for the appellants urged that the plaintiff -respondent was relieved from the services on 31st July 1974 on her services having been terminated and this suit which has been filed after a period of 5 years thereof is ex facie barred by limitation. The learned Counsel for the appellant submitted that the First Appellate Court has committed a serious error of jurisdiction in holding that as the order of terminating the services of the plaintiff -respondent is made against the provisions of 311 of the Constitution of India, the question of the limitation does not arise. In her submission even if the order of the termination of services of the plaintiff -respondents was against the principles of natural justice and without holding any departmental inquiry, she has to file the suit [@page1023] within the period of limitation as this suit has been filed beyond the limitation, the same should have been dismissed on this ground. In support of this contention, the learned Counsel for the appellant placed reliance on the decision of Apex Court in the case of State of Punjab and others v. Gurdev Singh and another reported in AIR 1992 Supreme Court 111.

(3.) I have given my thoughtful consideration to submissions made by the learned Counsel for the appellant, it is not in dispute that the plaintiff -respondent has been appointed by the appellant as an Assistant Teacher vide order dated 9 -9 -67. However, she remained absent from the duty without any leave and prior permission of the appellants. She has been called upon to show -cause and ultimately her services was terminated under the order dated 22 -2 -74. In pursuant to that order she was relieved from the services from 31 -7 -74. The plaintiff -respondent filed the suit in the court of Civil Judge (S. D.), Rajkot after more than three years of terminating of her services. One of the principle contention raised by the appellants before the lower Courts that this suit is barred by limitation. I find from the judgment of the First Appellate Court that this contention of the defendants -appellants was rejected on the ground that the termination of the services of the plaintiff -respondent has been effected in violation of principle of natural justice and without holding any departmental inquiry and as the termination of her services is null and void, the question of the limitation to challenge the same does not arise. I do not find any logic in this approach of the First Appellate Court. From the prayer made in the suit, I find that the plaintiff -respondent prayed for the relief of the declaration the order of the termination of her services to be illegal, inoperative and bad in law. Even if it is taken that the services of the plaintiff -respondent were terminated in violation of principle of natural justice and without holding departmental inquiry, this order has to be challenged the validity of this order of termination her services. If she was in fact aggrieved of this order, she has to file the suit within the prescribed period of limitation, which precisely she has not done in the present case. It is the order of the termination of the services of employee and even it is taken as void order still unless it is declared so and set aside the employer could not have taken her back into services. The plaintiff -respondent could not have ignored this order and naturally it is not permissible to her nor it could have been permitted by the appellants her to join the services. The question does arise whether only on the basis that this order is made in violation of Article 311 of the Constitution and principles of natural justice the plaintiff -respondent would have been entitled for the salary or for the other benefits of the services and other question that arises that by taking it to be a void order, she would have been deemed to be continued in service and the reply to all these questions should have been in negative. The only course available to the plaintiff -respondent would have been to challenge this order in appropriate legal form within the limitation. It is a suit for declaration of order of termination of the services of the plaintiff -respondent to be illegal and for this relief, the suit could have been filed within three years of the accrual of the right to suit. This suit is filed beyond three years and is clearly barred by limitation. This matter is squarely covered by the decision of the Apex Court in the case of State of Punjab and others v. Gurdev Singh and Ashok Kumar reported in AIR 1992 Supreme Court 111. In paras 4, 5, 6 & 8 their Lordship of Supreme Court held : "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 [@page1024] prescribed 'period of limitation' must subject to the provisions of Sections 4 to 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 or 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 Art. 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 Art. 120 it was six years which has been reduced to three years under Art. 113. According to the third column in Art. 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 in 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) Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270 and (ii) Gannon Dunkerely and Co. v. Union of India, AIR 1970 SC 1433). In the instant cases, the respondents were dismissed from service. May be illegally. The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal. They have not been paid their salary from that date. They came forward to the Court with a grievance that their dismissal from service was no dismissal in law. According to them the order of dismissal was illegal, inoperative and not binding on them. They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in service. For the purpose of these cases, we may assume that the order of dismissal was void, inoperative and ultra vires, and not voidable. If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not binding upon him. A declaration merely declared the existing state of affairs and does not 'quash' so as to produce a new state of affairs. But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, 1956 AC 736 at p. 769 Lord Radeliffe observed : 'An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' It will be clear from these principles, 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 [@page1025] must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for." The suit filed by the plaintiff -respondent for declaration of the order of 2 -7 -74 under which she has been terminated from services being illegal, inoperative and void is clearly barred by limitation and the courts below have committed serious illegality in holding otherwise and it is accordingly declared so. In the result this appeal succeeds and the same is allowed and judgment and decree of the learned 2nd Joint Civil Judge, Senior Division, Rajkot decreeing the plaintiff -respondent suit on 5 -3 -82 as confirmed by 4th Addl. Sessions Judge at Rajkot judgment are quashed and set aside and the suit of the plaintiff -respondent is dismissed. No order as to costs. (BAV) Appeal dismissed.