UNION OF INDIA Vs. PRABHU NARAIN

JUDGEMENT

(1.) THIS is a defendant's appeal against the decree and judgment dated September 29, 1973 of the II Addl. Dis trict Judge, Varanasi in Civil Appeal No. 170 of 1973 (original suit No. 257 of 1970) reversing the decree of the trial court by which the plaintiff's suit had been dismissed. The plaintiff, who was an em ployee in the Railway Protection Force had filed the suit on January y, 1970 challenging his order of removal which was passed by the Assistant Security Officer, Eastern Railways on February 4, 1966. He had preferred an appeal against that order of removal to the Chief Security Officer after one and a half years. An order was passed on March 25, 1969 that the appeal was time-barred and as such no action could be taken. The trial court had dismissed the plaintiff's suit mainly on the ground that the suit was barred by limitation as Article 58 of the Limitation Act applied and the suit should have been filed within three years from the order of removal, that is, February 4, 1966. The lower appellate court took the view that the limitation should run from the date of the final order passed by the appellate authority, that is, from March 25, 1969. In my opinion this appeal can be disposed of on this point alone and it is not necessary to dis cuss the other points involved. It is not disputed that Article 58 of the Limitation Act applies It is also not the plaintiff's case that any application was filed for get ting the benefit of Section 14 of the Limitation Act. It has, there fore, to be seen whether the order of the lower authority had merg ed in the order of the appellate authority in the present case or not. The prescribed period for filing an appeal to the Chief Security Offi cer is one month but the appeal was filed after one and a half-years. There is, no doubt, the proviso to rule 53 according to which it is pos sible to entertain such an appeal if the appellants authority is satis fied that there was sufficient cause for the delay. In the present case, the appeal was headed as a mercy petition and no reason for the de lay was given. The appellate authority, therefore, did not entertain it at all as barred by time. The lower appellate court has taken the view that the Chief Security Officer had ignored the proviso to rule 53 and had not considered whether there were sufficient grounds explaining the delay. These observations were uncalled for as no attempt was at all made to explain the delay. All that can be said in this case is that the appellate authority had confirmed the order of the lower authority removing the plaintiff from service.

(2.) SRI D. Sanyal counsel for the appellant has placed reliance on the case of State of U.P. v. Mohd. Nooh, A.I.E. 1967 S.C. page 681 in which it has been held that in service matters when the appellate authority confirms the order of the lower authority, it cannot be said that the order of the lower authority merges in the order of the appellate authority. It was further observed that there was no suspension of the order of the lower authority merely because an appeal had been filed to the higher authority. That was, no doubt, a case in which the order ori ginally passed was before the enforcement of the Constitution and the revision by the department was decided after the enforcement of the Constitution. "Sri M. S. Srivastava, learned counsel for the res pondent has tried to distinguish that authority on this ground. The same view was, however, again reiterated by their Lordships of the Supreme Court in the case of State of Madras v. Madurai Mills Co., Ltd. (2). Their Lordships made the following observation;

(3.) COMPANY Ltd. (4) in which case there were the same observations that the orders of the lower authority could merge in the orders passed by the Tribunal under certain circumstances but they were not domestic Tribunals in service matter. In my opinion in the present case the limitation ran from the date of the original order of removal and as such the suit was barred. The view taker, by the Trial Court was, therefore, correct. In the result, the appeal is allowed, the decree and judgment of the lower appellate court are set aside and those of the trial court are restored. Parties shall bear their own costs of all the courts.