SHAM SUNDER Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS revision petition filed under Section 115 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') is directed against order dated 4.2.2002 passed by the Additional Civil Judge (Senior Division), Jind dismissing the execution application of the decree-holder-petitioner (for brevity, 'DH-petitioner') in which the DH-petitioner claimed that he was entitled to an amount of Rs. 1,89,000/- on account of interest. The reason given by the learned executing Court in its order is that the DH-petitioner was not entitled to the aforesaid amount as the same has been specifically declined by this Court on 28.9.2001 while deciding Regular Second Appeal No. 1656 of 1985. The petitioner had not placed on record the copy of the order dated 28.9.2001 and when the case came up for hearing on 3.4.2002, it was directed that the petitioner shall place on record a copy of the order dated 28.9.2001 which constituted the basis for declining the relief by the impugned order dated 4.2.2002. Accordingly, the petitioner has placed on record a copy of the judgment dated 28.9.2001 passed by this Court. A perusal of the aforementioned judgment makes it abundantly clear that Regular Second Appeal No. 1656 of 1985 filed by the judgment-debtor-respondents (for brevity, 'JD-respondents') i.e. State of Haryana was allowed and the decree passed by the lower Appellate Court was set aside. Consequently, Civil Suit No. 185/513 dated 3.10.1980/26.3.1982 of the DH-petitioner seeking declaration that the order dated 2.8.1974 discharging him from service was illegal, was dismissed. Another suit registered as Civil Suit No. 434 of 8.11.1989 for rendition of accounts was also dismissed and Regular Second Appeal No. 1707 of 1998 filed by the JD-respondents was allowed. The judgment and decree of the Courts below was set aside. The operative part of the order dated 28.9.2001 reads as under :-

(2.) BRIEF facts of the case as disclosed in the revision petition are that the DH-petitioner was appointed as Road Inspector in the Public Works Department (B and R) Branch, Jind in 1964 on permanent basis. He proceeded on leave somewhere in 1974 and over-stayed. Consequently, he was discharged from service vide order dated 2.8.1979 passed by the Superintending Engineer, Jind Circle, Public Works Department (B and R) Beach. He filed Civil Suit No. 185/513 dated 3.10.1980/26.3.1982 for declaration challenging the validity of the order dated 2.8.1979 primarily on the plea that order was passed because of mala fide of the then Executive Engineer Mr. S.C. Saluja. It was also alleged that before terminating the services, the procedure as laid down under the law and the rules was not followed. He alleged that before passing the order on 2.8.1979, the punishing authority failed to take into consideration the medical certificate and the leave application sent by the DH-petitioner to the concerned officer. The suit was contested by raising preliminary objection that the same was time-barred and pleading estoppel on the basis of the act and conduct of the DH-petitioner. The allegations of mala fide against the Executive Engineer Mr. S.C. Saluja were denied defending the impugned order to be fair and proper. The trial Court dismissed the suit and upheld the validity of the order dated 2.8.1979. Holding that the suit was barred by limitation as it was filed after the expiry of period of more than one year; the principle of estoppel was also found applicable and the suit was dismissed. However, the Additional District Judge, Jind held that the suit was within limitation on the ground that the period of 60 days postulated by Section 80 of the Code was to be excluded as is provided by Article 100 of the Schedule appended to Limitation Act, 1963. The Additional District Judge further held that the order suffers from the legal infirmity of failure to issue second show cause notice as contemplated by Rule 7(1) of the Punjab Civil Services (Punishment and Appeal) Rules, 1952 and, thus, the suit was decreed. Opportunity was given to the JD-respondents for instituting fresh enquiry or taking decision with regard to the period for which the DH- petitioner remained absent from duty without getting the leave sanctioned. Regular Second Appeal No. 1656 of 1985 filed by the JD-respondents i.e. State of Haryana against the judgment of the Additional District Judge was allowed. The DH-petitioner was reinstated in service but he was not paid salary and other benefits w.e.f. 1.7.1974.

(3.) I have heard Mr. W.R. Dua, Advocate for the DH-petitioner who has argued that the executing Court has committed grave error by dismissing the execution application of the DH-petitioner because the execution was filed on 2.5.1998 when the judgment of the Additional District Judge dated 3.3.1998 was in operation. According to Mr. Dua, the execution application was filed seeking execution of the decree as drawn by the learned Additional District Judge in her decision dated 3.3.1998. He has further pointed out that review petition against order dated 28.9.2001 is pending and, therefore, order dated 4.2.2002 passed by the Additional Civil Judge is liable to be set aside.