Dismissed

Baljit Singh v. State of Punjab and Ors.

Punjab & Haryana HC10 Mar 2010RSA/1362/2009

Case brief

AI extract

What is this about?

The Second Appellate Court dismissed the appeal, holding that the underlying suit was barred by limitation under Article 113 of the Limitation Act. The court also rejected the appellant's prayer for condonation of delay in filing the appeal, citing an inordinate delay of over seven years.

What did the court decide?

The Regular Second Appeal was dismissed on the ground that the suit was barred by limitation and the appeal was filed after inordinate delay.

Baljit Singh Vs State of Punjab and Ors. — Service and Employment | Punjab & Haryana HC (2010)

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REGULAR SECOND APPEAL NO.1362 OF 2009 (O&M) :{ 1 }:

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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DATE OF DECISION: MARCH 10, 2010

SPO Baljit Singh

.....Appellant

VERSUS

State of Punjab and others

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....Respondents

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CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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PRESENT: Mr. S. K. Sharma, Advocate, for the appellant. ****

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RANJIT SINGH, J.

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The appellant, who was an S.P.O, has filed this Regular Second Appeal to impugn the judgment and decree passed by the Trial Court as well as by the first Appellate Court, dismissing his suit. The appellant was employed on 28.8.1992. As claimed by him, he met with an accident on 22.1.1995 while he was going to his village after performing his duties and fell unconscious. As per him, he was got medically treated by some passer-bye. On regaining his senses, he informed Incharge, Police Station, Patiala and also applied for medical leave. He reported for duty on 12.3.1995 but was dismissed on 29.3.1995. The appellant has impugned the said order on the ground that no charge sheet was served to him and has been

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REGULAR SECOND APPEAL NO.1362 OF 2009 (O&M) :{ 2 }:

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punished without affording any opportunity of being heard. He would accordingly term this action to be illegal.

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The respondents appeared in response to the notice and raised a preliminary objection of suit being time barred and not maintainable as no cause of action to file the suit was available. It is further averred that the appellant was a temporary employee and was a daily wager. It is accordingly pleaded that services of the daily wager could be terminated at any time, if not required in public interest. The appellant had willfully remained absent from 23.2.1995 to 11.3.1995 and so was discharged from service on 29.3.1995. On the basis of pleadings, the Trial Court framed the following issues:-

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“1. Whether order dated 29.3.1995 is illegal, null and void? OPP

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Whether plaintiff is entitled to the arrears of pay as claimed? OPD

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Whether the suit is time barred? OPD

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Whether the suit is not maintainable in the present form> OPD

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Whether the plaintiff has no cause of action to file the present suit? OPD

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Relief.”

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On the basis of evidence led, the Trial Court dismissed the suit, against which he filed an appeal, which was also dismissed and so the appellant has filed the present Regular Second Appeal.

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One of the issues framed by the Court was the suit being time barred. The impugned order, which the appellant had challenged was passed on 29.3.1995. He filed a suit on 17.9.2002.

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REGULAR SECOND APPEAL NO.1362 OF 2009 (O&M) :{ 3 }:

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To tied over the difficulty of limitation, it was pleaded that the order of termination, being manifestly illegal and void in law could be challenged at any time as this could not be enforced against the appellant. In support, reliance was placed on Mukand Vs. Bal Krishna, AIR 1927 Privy Council 224. It was also pleaded that respondents did not allow the appellant to join lastly on 22.7.2002 and, therefore, suit was within limitation. Reference is also made to the case of State of Madhya Pradesh Vs. Syed Qamarali , 1967 SLR 228 (SC).

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This line of submission, as made on behalf of the appellant can not be accepted. The Hon'ble Supreme Court in the case of State of Punjab and others Vs. Gurdev Singh and Ashok Kumar, AIR 1992 Supreme Court 111, has considered this issue and has held that suit for declaration that an order or termination from service passed against the plaintiff is wrongful illegal and ultra-vires is governed by Article 113 of the Limitation Act. The Court has further observed that to say that the suit is not governed by the law of limitation runs a foul on our Limitation Act and that the statute of limitation was intended to provide a time limit for all suits conceivable. The Hon'ble Supreme Court in Gurdev Singh's case (supra) considered the ratio of law laid down in the case of Syed Qamarali,(supra) and noted the following observations made in this case reading:-

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“We, therefore, hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under S. 7 could be exercised, is totally invalid. The order

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REGULAR SECOND APPEAL NO.1362 OF 2009 (O&M) :{ 4 }:

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of dismissal had, therefore, no legal existence and it was not necessary for the respondent to have the order set aside by a Court. The defence of limitation which was based only on the contention that the order had to be set aside by a Court before it became invalid must therefore be rejected.”

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Commenting on the above observations, the Court in Gurdev Singh's case (supra) held as under:-

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“These observations are of little assistance to the plaintiffs in the present case. This Court only emphasized that since the order of dismissal was invalid being contrary to Para 241 of the Berar Police Regulations, it need not be set aside. But it may be noted that Syed Qamarali brought the suit within the period of limitation. He was dismissed on 22 December, 1945. His appeal against the order of dismissal was rejected by the Provincial Government on 9 April, 1947. He brought the suit which has given rise to the appeal before the Supreme Court on 8 December, 1952. The right to sue accrued to Syed Qamarali when the Provincial Government rejected his appeal affirming the original order of dismissal and the suit was brought within six years from that date as prescribed under Art. 120 of the Limitation Act, 1908.”

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Ultimately, the Hon'ble Supreme Court approve the ratio of law laid down by Allahabad High Court in the case of Jagdish Prasad Mathur Vs. United Provinces Government, AIR 1956

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REGULAR SECOND APPEAL NO.1362 OF 2009 (O&M) :{ 5 }:

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Allahabad 114 and Abdul Vakil Vs. Secretary of State, AIR 1943 Oudh 368 by holding that a suit for declaration by dismissed employee on the ground that his dismissal is void is governed by Article 120 of Limitation Act. The Hon'ble Supreme Court approved this view by observing as under:-

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“That in our opinion is the correct view to be taken. A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Art.113 of the Limitation Act. The decision to the contrary taken by the Punjab and Haryana High Court in these and other cases (State of Punjab v. Ajit Singh (1988) 1 Serv LR 96 and (ii) State of Punjab v. Ram Singh (1986) 2 Serv LR 379) is not correct and stands overruled.”

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Accordingly, the suit filed by the appellant was clearly barred by limitation. In this background, there would not be much need to deal with the other submissions made by the learned counsel for the appellant on the ground that the stigmatic order could not have been passed even if the appellant was a temporary employee or a daily wager as that will not have any effect on the final outcome of the suit.

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The appellant has filed this appeal before this Court on 28.5.2007. This was returned with some objections on 4.7.2007. This appeal was re-filed after 321 days delay. This was again returned with some objection on 11.8.2008, which was re-filed again with a delay of 27 days. The appeal was returned yet again with an objection and ultimately was re-filed with delay of 625 days in re-

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REGULAR SECOND APPEAL NO.1362 OF 2009 (O&M) :{ 6 }:

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filing. The ground to seek condonation of delay in re-filing is that the appeal was inadvertently put in the admitted cases, which was located while arranging the said cases during vacations. This is to explain 321 days delay. To explain the subsequent delay, it is again stated that the Regular Second Appeal was inadvertently put with the admitted cases by a junior counsel working with the counsel for the appellant. This inordinate delay in re-filing on the grounds as pleaded is not justified, when viewed in the background that this ground is being frequently raised by the counsel in almost every case listed before the Court and, thus, would not appear genuine and justified. In any case, the suit was filed by the appellant only after seven years of the cause of action and hence, was inordinately delayed.

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The Regular Second Appeal is, thus, liable to be dismissed on this short ground and it is so ordered.

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March 10, 2010 ( RANJIT SINGH ) khurmi JUDGE

Baljit Singh v. State of Punjab and Ors.

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Baljit Singh v. State of Punjab and Ors.

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