Full Judgment Text
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PETITIONER:
S.KUMAR
Vs.
RESPONDENT:
THE INSTITUTE OF CONSTITUTIONAL AND PARLIAMENTARY STUDIESAND
DATE OF JUDGMENT29/09/1983
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
CHANDRACHUD, Y.V. ((CJ)
MUKHARJI, SABYASACHI (J)
CITATION:
1984 AIR 59 1984 SCR (1) 153
1983 SCC (4) 516 1983 SCALE (2)918
ACT:
Civil Procedure-Proceedings commenced-Change in cause
of action-Whether proceedings can be maintained on the
original cause of action.
Civil Procedure-Amendment of plaint-When to be done.
HEADNOTE:
The appellant who was found guilty of a charge in an
enquiry was served with a notice to show cause why he should
not be dismissed from service. A second charge was also
framed against the appellant. The appellant filed a suit for
declaration and an injunction and obtained an exparte order
restraining the respondent and its officers from dismissing
him. The Subordinate Judge dismissed the suit as not
maintainable. The appellant filed an appeal before the
Senior Subordinate Judge. In reply to the stay application
it was stated that the stay application had become
infructuous as the appellant had been dismissed from
service. The Senior Subordinate Judge dismissed the appeal.
The appellant filed a second appeal in the High Court and
during the pendency moved an application for amendment of
the plaint. The High Court rejected the amendment
application and dismissed the appeal. In this appeal the
appellant urged that among the reliefs claimed in his
amendment application filed in the High Court he had
included the relief for declaring the order of dismissal
invalid. The appellant filed an application praying for
amendment of the plaint by the inclusion of such a relief.
Dismissing the appeal,
HELD: The appeal is not maintainable.
Once an order of dismissal was passed against him, a
different cause of action arose and it was not possible for
the appellant to maintain the proceedings on the original
cause of action. The original reliefs claimed in the suit
consisted of a decree of declaration that the proceedings
taken against the appellant upto the framing of the second
charge on October 15/16, 1975 were invalid, and a decree for
perpetual injunction restraining the respondents from
dismissing the appellant. At no stage upto the dismissal of
his second appeal did the appellant attempt to include a
relief in his plaint against the order of dismissal. On the
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contrary, the reliefs sought to be included through the
amendment application filed in the High Court proceeded on
the assumption that the appellant was still continuing in
service. [156 E-F; B-C]
154
The Court is constrained to reject the application
praying for leave to amend the plaint inasmuch as it is for
the first time throughout this protracted proceeding
commencing with the institution of the suit in 1975 that the
appellant is now seeking to include the relief although he
had come to know several years ago that he had been
dismissed. No circumstance has been shown explaining why the
appellant should be permitted at this late stage to amend
the plaint. It has also not been established by the
appellant that if a suit is a filed now against the order of
dismissal it would be within the period of limitation.
[156;H 157 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2613 of
1980.
Appeal by Special leave from the Judgment and Order
dated the 18th April, 1980 of the Delhi High Court in
Regular Second Appeal No. 33 of 1977.
Petitioner in Person.
Anand Prakash, C.S. Vaidyanathan, Probir Chowdhry Ms.
Laxmi Anand and Samir Prakash for the Respondent.
The Judgment of the Court was delivered by
PATHAK, J. This appeal by special leave is directed
against a judgment of the High Court of Delhi dismissing the
appellant’s second appeal.
The appellant was appointed in 1968 to the post of
Research Officer of the Institute of Constitutional and
Parliamentary Studies, New Delhi, as a society registered
under the Societies Registration Act, 1860, and was later
designated as Assistant Director. Subsequently, he was given
additional charge of the Library of the Institute. In March,
1974 the appellant submitted a bill of Rs. 350 to the
Institute claiming reimbursement of medical expenses
incurred by him in the delivery of a child to his wife
during the previous month. The Institute, however, framed a
charge on November 5, 1974 against the petitioner, alleging
that he was attempting to draw the sum by tendering a false
bill. A member of the Executive Council of the Institute was
appointed to enquire into the charge and the appellant
participated in the enquiry proceedings. During the pendency
of the proceedings the appellant appealed to the Executive
Council of the Institute to change the Enquiry officer but,
it is alleged by the appellant, while the appeal was pending
consideration
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the appellant received a Memorandum dated July 17/18, 1975
from the Executive Chairman of the Institute placing the
appellant under suspension. The Enquiry officer completed
his report on August 9, 1975 holding that the charge of
presenting a false bill was proved against the appellant. On
October 15/16, 1975 a second charge was framed against the
appellant alleging that he was guilty of disobeying an
officer order requiring him to hand over charge of the
Library. The appellant was also served with a notice of the
same date, along with a copy of the enquiry report,
requiring him to show cause why he should not be dismissed
from service. The appellant then filed a suit for
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declaration and injunction in the Court of the learned
Subordinate Judge, Delhi on November 15, 1975 and obtained
an ex-parte order restraining the Institute and its officers
from dismissing him. When the matter came on for final
disposal on August 24, 1976 the learned Subordinate Judge
dismissed the suit without trial on the preliminary point
that it was not maintainable. He expressed the view that the
appellant’s remedy lay in damages and not in a suit for
declaration. The appellant appealed, and during the pendency
of the appeal the learned Senior Subordinate Judge passed an
order dated August 28, 1976 declining to grant an-ex-parte
stay order. On September 3, 1976 the Institute filed a reply
stating that the stay application had become infructuous as
the appellant had been dismissed from service. The appeal
filed by the appellant was dismissed by the learned Senior
Subordinate Judge on January 22, 1977, who endorsed the view
of the trial court that the remedy of the appellant lay in
damages instead of by a suit for declaration. The appellant
filed a second appeal in the High Court of Delhi. During the
pendency of the appeal he moved an application for amendment
of the plaint. On April 18, 1980 the High Court rejected the
amendment application and also dismissed the second appeal.
And now this appeal.
The appellant attempted to place his case before us on
its merits, but strong objection was taken by the
respondents to the maintainability of the appeal on the
ground that the order dismissing the appellant had not been
challenged by him, that the order had become final and that
the continued existence of the order constituted an
impediment to the consideration of the reliefs claimed in
the suit. The appellant strenuously urged that the appeal
continues to survive, and he attempted to establish that
among the reliefs claimed in his amendment application filed
in the High Court he had included a relief for declaring the
order of dismissal invalid and, he said, the amendment had
been wrongly refused. Shortly before
156
concluding his submissions in this Court, he filed an
application in this appeal praying for amendment of the
plaint by the inclusion of such relief.
We have examined the record of the case and we find
that at no stage upto the dismissal of his second appeal did
the appellant attempt to include a relief in his plaint
against the order of dismissal. On the contrary, the reliefs
sought to be included through the amendment application
filed in the High Court proceeded on the assumption that the
appellant was still continuing in service, for we find that
one of the reliefs specifically mentioned in the amendment
application was:
"(c) "A decree for perpetual injuction he granted
to the plaintiff against the defendants, restraining
the defendants from dismissing the plaintiff from the
post of Assistant Director and Incharge of the Library
of the Institute and taking any action on the basis of
the enquiry report or show-cause notice and holding any
second enquiry on the basis of the second charge-sheet
or taking any action whatsoever in these matters."
Plainly, once an order of dismissal was passed against him,
a different cause of action arose and it was not possible
for the appellant to maintain the proceeding on the original
cause of action. The original reliefs claimed in the suit
consisted of a decree of declaration that the proceedings
taken against the appellant upto the framing of the second
charge on October 15/16, 1975 were invalid, and a decree for
perpetual injunction restraining the respondents from
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dismissing the appellant.
The appellant contended that the order of dismissal had
not been served on him and, therefore, no occasion had
arisen for challenging the order. It was alleged that an
unsigned copy of an order of dismissal had been received by
him and nothing more. We cannot accept the contention,
because we find ample evidence on the record indicating that
the appellant treated the order served on him as an
effective order and that otherwise also he was aware that he
had been dismissed. Indeed, he took proceedings in court
charging the respondents with contempt of court for passing
an order of dismissal while his suit was still pending.
As regards the application now filed before us praying
for leave to amend the plaint, we are constrained to reject
it inasmuch
157
as it is for the first time throughout this protracted
proceeding commencing with the institution of the suit in
1975 that the appellant is now seeking to include the relief
although he had come to know several years ago that he had
been dismissed. No circumstance has been shown explaining
why the appellant should be permitted at this late stage to
amend the plaint. It has also not been established by the
appellant that if a suit is filed now against the order of
dismissal it would be within the period of limitation.
Upon the aforesaid considerations, we are of opinion
that the present appeal is liable to be dismissed as not
maintainable.
We find it unnecessary to enter into the question
whether the charge framed against the appellant, on the
basis of which he has been dismissed, stands proved. We
express no opinion in the matter.
While concluding, we may record that the appellant
claims arrears of pay from the Institute. We believe it
would be just and proper that the Institute should examine
the claim of the appellant, and if it finds that any amount
is due to the appellant it should make payment thereof with
all reasonable expedition. It is hoped that in this regard
the Institute will not seek the advantage of any technical
objection, including the period of limitation.
In the result, the appeal is dismissed as not
maintainable. There is no order as to costs.
H.S.K. Appeal dismissed.
158