STATE OF HIMACHAL PRADESH Vs. JAI DEV RAM

JUDGEMENT

(1.) The appellant is the original defendant and the respondent is the original plaintiff. The suit, out of which this appeal arises, was instituted by the respondent for a declaration that the order of dismissal passed against him by the appellant was illegal, wrong band arbitrary and that the respondent still continued to be in service as Assistant Sub -Inspector in the Police Force and that he was entitled to all benefits and arrears of the post (pay ?). The suit was resisted by the appellant on various grounds and one of the pleas raised was that the suit was barred by limitation. The trial court held that the dismissal of the respondent was illegal, arbitrary and. In violation of Art. 311 of the Constitution, However, the trial court dismissed the suit on the ground that. It was barred by limitation. The matter having been carried in appeal, the lower appellate court reversed the finding of the trial court on the issue of limitation. Since no other ground appears to have been canvassed before the lower appellate court, in view of its finding on the Issue of limitation, the lower appellate court allowed the appeal, set -aside the decree passed by the trial court and decreed the suit by declaring that the order of dismissal from service was illegal, wrong and arbitrary and that the respondent still continued to be the Assistant Sub -Inspector in the Police Force and that he was entitled to all the benefits of the post held by him. Hence the present second appeal.

(2.) The relevant facts bearing on the issue of limitation are that the order of dismissal was passed on April 17, 1968 whereas the suit was instituted on December 24, 1974/November 18, 1976. The point which was canvassed before the trial court and which appealed to the trial court was that under Article 100 or Article 58 the suit ought to have been instituted within a period of one year or three years, as the case may be, from the date of the impugned dismissal order and that since the suit was instituted much later, it was barred by limitation. It appears that the respondent attempted to take shelter under the provisions of Section 6 of the Limitation Act which has the effect of extending the period of limitation in certain cases of legal disability. The trial court found that the disability pleaded, namely, insanity, was not established. Under the circumstances, the trial court dismissed the suit on the ground of limitation although on merits it found that the impugned order of dismissal was illegal, arbitrary and in violation of Article 311.

(3.) The lower appellate court reversed the finding of the trial Court on the issue of limitation on the ground that a suit seeking declaration that an order of dismissal was illegal, wrong and arbitrary and, therefore, unconstitutional and void could not be dismissed on the .ground that it was barred by limitation because no bar of limitation applied to such a suit. In reaching this conclusion the lower appellate court relied upon the decision of a learned single Judge (O. Chinnappa Reddy, J.) of the Punjab and Haryana High Court in R.S.A. No. 264 of 1968 (Mohinder Singh v. State of Punjab) decided on April 20, 1977. Be it stated that in the judgment of the lower appellate court, an extract from this judgment is reproduced with the remark that it has been reported in 1978 S.L.J. 22 -A. In the Reports of cases printed in 1978, S. L.J. such a judgment does not find place at page 22 -A. In fact, page 22 -A is not found in 1978 S.L.J. However, in a subsequent judgment of the Punjab and Haryana High Court, 1980 (2) S.L.R. 616 (Amrik Singh Constable v. The State of Punjab), the judgment of Mohinder Singh v. State of Punjab9 is referred to and relied upon in support of the proposition that if the order of removal from service is void, the plaintiff is not required to get it set -aside and that, therefore, the bar of limitation is not attracted even if a declaratory suit is filed after a period of three years. An ordinary copy of the full text of the judgment in Mohinder Singhs case has been produced for my perusal and it shows that in that decision, as in the decision of Amrik Singh (supra), the view is taken that if the order of removal or dismissal is passed in violation of the provisions of Article 311 of the Constitution, there will be no limitation for such a suit. In fact, in the State of Madhya Pradesh v. Syed Qamarali, [1967 S.L.R. 228], the Supreme Court has also taken the view that if an order of dismissal is passed in breach of a mandatory provision of the rules, subject to which alone the power of punishment could be exercised, such an order is totally invalid and it has no legal existence and it is not necessary to have such an order set -aside by a Court of law. A suit for recovery of pay filed seven years after such dismissal, claiming pay and allowances for a period of three years immediately preceding the institution of the suit, was held to be not barred in the said case.