Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6640 OF 2019
(@ SLP(C) No. 30046 OF 2017)
Prahlad Raut ….Appellant
Versus
All India Institute of Medical Sciences ….Respondent
J U D G M E N T
Indira Banerjee, J.
Leave granted.
2. The appeal is against a judgment and order dated
24.07.2017 of the Delhi High Court, allowing Writ Petition
(Civil) No. 5977 of 2016 filed by the respondent, and setting
Signature Not Verified
aside the order dated 29.02.2016 passed by the Principal
Digitally signed by
SANJAY KUMAR
Date: 2019.08.28
16:30:23 IST
Reason:
Bench of the Central Administrative Tribunal at New Delhi,
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whereby the learned Tribunal had allowed Original
Application (O.A.) No.3381 of 2013 filed by the appellant
challenging an order dated 6.1.2000 removing the appellant
from the service of the respondent.
3. The appellant was appointed by the respondent as
Bearer on 09.02.1972 and was promoted to the post of
Steward on 15.10.1987. He was elected as an executive
member of the Cooperative Society known as AIIMS
Cooperative, Thrift and Credit Society, hereinafter referred to
as “Cooperative Society”, run by the respondent, and became
its treasurer.
4. On or about 5.3.1991, a First Information Report being
FIR No.91 of 1991 under Sections 406/420/
468/471/477A/120B of the Indian Penal Code (IPC),
hereinafter referred to as the first FIR, was registered against
the appellant at the Defence Colony Police Station at New
Delhi, allegedly for causing loss to the tune of Rs.5 Lakhs to
the Cooperative Society by forging the signatures of its
members.
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5. The appellant was arrested on 05.06.1991 and was in
custody till 12.06.1991. By reason of his detention for more
than 48 hours, the appellant was, by an order dated 7.8.1991,
placed under deemed suspension in terms of Rule 10(2) of the
Central Civil Services (Classification, Control and Appeal)
Rules, 1965, hereinafter referred to as “CCS (CCA) Rules” and
subsistence allowance was paid to him.
6. While the appellant was under suspension, another FIR
No.868 of 1991 under Sections 356/379/411 of the IPC,
hereinafter referred to as the second FIR, was registered
against the appellant at the Connaught Place Police Station at
New Delhi, allegedly for snatching a bag containing cash of
Rs.290/ and two lottery tickets from one Jai Ram son of
Chimma Ram. Criminal proceedings commenced in
pursuance of the second FIR. By a judgment and order dated
15.9.1993, the appellant was convicted by the Metropolitan
Magistrate Delhi under Section 379 of the Indian Penal Code.
7. Admittedly, the second FIR was registered against the
appellant while he was under suspension. On behalf of the
respondent, it has been contended that the respondent had no
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knowledge of the second FIR or of the judgment and order
dated 15.09.1993, of conviction of the appellant under Section
379 of the IPC, for about 7 years.
8. On 16.09.1993, the respondent had been released on
probation of good conduct for a period of one year, on
condition of furnishing a personal bond and one surety of
Rs.5,000/. These orders were apparently concealed from the
respondent.
9. It is the case of the respondent, that the respondent
came to know about the second FIR and the conviction of the
appellant pursuant thereto, after about 7 years, after which
the respondent was removed from service by a memorandum
dated 6.1.2000 issued under Rule 19(i) of the CCS (CCA)
Rules. The said Memorandum is extracted hereinbelow:
“Whereas Shri Prahlad Raut, Steward (under
suspension) from 5.6.1991 on charge of embezzling and mis
appropriation in view of F.I.R. No.91 dated 3.3.1991 under
Section 406/420/468/471/477A and 120B IPC
And whereas Shri Prahlad Raut was later on charge for
an offence of theft of a bag in public place, he had been
convicted by the Court of Shri D.K. Saini, Metropolitan
Magistrate, New Delhi under section 356/379/411 IPC vide
judgment dated 16.9.1993.
As whereas it is considered that the conduct of the said
Shri Prahlad Raut which had held to his conviction is such
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as to render his further retention in the service of the
Institute undesirable.
And whereas Shri Prahlad Raut was given an
opportunity to offer his written explanation.
And whereas the said Shri Prahlad Raut has given a
written explanation which has been duly considered by the
undersigned.
Now, therefore, in exercise of the powers conferred by
the Rule 19 (1) of the C.C.S. (C.C.A.) Rule 1965 the
undersigned removes the said Shri Prahlad Raut from the
service of the Institute from the date of the conviction i.e.
16.9.1993.
Shri Prahlad Raut therefore is directed to deposit the
subsistence allowance as received by him from the A.I.I.M.S.
beyond 16.9.1993.”
10. By the said memorandum dated 6.01.2000, issued under
Rule 19(i) of the CCS (CCA) Rules, the respondent removed
the appellant from service with retrospective effect from
16.9.1993, being the date of his conviction, pursuant to the
second FIR, and directed him to refund the subsistence
allowance received by him from 16.9.1993 onwards.
11. Rule 19 of the CCS(CCA) Rules is set out hereinbelow for
convenience:
“19. Special procedure in certain cases
Notwithstanding anything contained in Rule 14 to Rule 18
(i) where any penalty is imposed on a Government
servant on the ground of conduct which has led to his
conviction on a criminal charge, or
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(ii) where the Disciplinary Authority is satisfied for reasons
to be recorded by it in writing that it is not reasonably
practicable to hold an inquiry in the manner provided in these
rules, or
(iii) where the President is satisfied that in the interest of
the security of the State, it is not expedient to hold any
inquiry in the manner provided in these rules.
The Disciplinary Authority may consider the circumstances of
the case and make such orders thereon as it deems fit:
[Provided that the Government servant may be given an
opportunity of making representation on the penalty proposed to
be Imposed before any order is made in a case under Clause (i):
Provided further that the Commission shall be consulted, where
such consultation is necessary, [and the Government servant
has been given an opportunity of representing the advice of the
Commission,] before any orders are made in any case under
this rule.]”
12. The memorandum dated 6.1.2000 indicates compliance
of the requisites for imposition of penalty under Rule 19(i) of
the CCS(CCA) Rules. It is a matter of record that the
appellant was convicted of offence under Section 379 of the
Indian Penal Code for committing theft at a public place. The
said memorandum reveals that the conduct of the appellant of
committing theft in a public place, while under suspension on
the serious charge of embezzlement and misappropriation, for
which he was convicted under Section 379 of the Indian Penal
Code was duly considered. On such consideration the
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concerned authority found retention of the appellant in the
service of the respondent to be undesirable.
13. The appellant has apparently been given an opportunity
of hearing. The memorandum dated 6.1.2000 records that
the appellant had submitted a written explanation which had
duly been considered before removing the appellant from the
service of the respondent, from the date of his conviction.
14. According to the appellant, aggrieved by the said
decision, the appellant appealed to the President of the
respondent, to which there was no response. The respondent
claims that the appeal was rejected in the same year, that is,
in 2000. However, no order of rejection is traceable.
15. Over a decade after the appellant was removed from
service, he entered into a settlement with the respondent, in
terms whereof he compensated the respondent for the loss
caused by him to the Cooperative Society. As a consequence
of the compromise, the first FIR, that is, FIR No. 91 of 1991
was quashed by the High Court of Delhi on 2.11.2012.
Thereafter, the appellant made a representation demanding
8
Pension, Gratuity and Provident Fund with interest from the
respondent. This is not in dispute.
16. The appellant has also alleged that he made a request to
the respondent for withdrawal and/or cancellation of the
Memorandum dated 6.1.2000, to which there was no
response.
17. On or about 24.7.2013, that is, over thirteen years after
the issuance of the Memorandum dated 6.1.2000, removing
the appellant from service of the respondent, with
retrospective effect from the date of his conviction, the
appellant filed Original Application No.3381 of 2013 before the
learned Tribunal, challenging the Memorandum dated
6.1.2000.
18. Section 21 of the Administrative Tribunals Act, 1985,
which prescribes the period of limitation for filing an
application in an Administrative Tribunal provides:
“ . .
21 LIMITATION
(1) A Tribunal shall not admit an application,
(a) in a case where a final order such as is mentioned in
clause (a) of subsection (2) of section 20 has been made in
connection with the grievance unless the application is made,
within one year from the date on which such final order has
been made;
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(b) in a case where an appeal or representation such as is
mentioned in clause (b) of subsection (2) of section 20 has
been made and a period of six months had expired thereafter
without such final order having been made, within one year
from the date of expiry of the said period of six months.
(2) Notwithstanding anything contained in subsection (1),
where
(a) the grievance in respect of which an application is made
had arisen by reason of any order made at any time during
the period of three years immediately preceding the date on
which the jurisdiction, powers and authority of the Tribunal
becomes exercisable under this Act in respect of the matter to
which such order relates; and
(b) no proceedings for the redressal of such grievance had
been commenced before the said date before any High Court,
the application shall be entertained by the Tribunal if it is
made within the period referred to in clause (a), or, as the
case may be, clause (b), of subsection (1) or within a period
of six months from the said date, whichever period expires
later.
(3) Notwithstanding anything contained in subsection (1) or
subsection (2), an application may be admitted after the
period of one year specified in clause (a) or clause (b) of sub
section (1) or, as the case may be, the period of six months
specified in subsection (2), if the applicant satisfies the
Tribunal that he had sufficient cause for not making the
application within such period.”
19. The pleadings of the appellant, in his application before
the Tribunal with regard to limitation, are extracted herein
below :
"
3 Limitation
The application is within the period of limitation as
prescribed in Section 21 of the A.T. Act, 1985. Moreover, the
applicant challenges a per se illegal order of removal from
10
service with retrospective effect as well as his pension/GPF
is withheld and thus are continuing wrongs.”
20. Along with O.A. No.3381 of 2013 the appellant had filed
an application seeking condonation of delay and an affidavit
stating that the application for condonation of delay had been
filed in exercise of abundant caution and to comply with
procedural requirements.
21. In the application for condonation of delay, it was
contended that (i) the order of removal with retrospective effect
being void ab initio, the law of limitation would not apply; (ii)
Delhi High Court had quashed the first FIR by an order dated
2.11.2012 and this order gave rise to a fresh cause of action;
(iii) the respondent had filed an appeal dated 21.01.2013 to
the Appellate Authority, seeking review of the order of
removal, to which there had been no response; (iv) the
appellant had continuing cause of action as
pension/provident fund amount had illegally been withheld;
(v) the appellant being 67 years of age, had retired from
service, and was in a state of penury.
11
22. By an order dated 29.2.2016, the learned Tribunal set
aside the Memorandum dated 6.1.2000 and granted all the
benefits to the appellant. The Learned Tribunal held:
“11. Having considered the matter, we are of the firm view
that the OA was filed within the period of limitation. It is not
a matter of dispute that the punishing authority has
retrospectively removed the applicant from service with effect
from 16.09.1993, that being the date of his conviction in a
criminal case by means of impugned order dated
06.01.2000. Such orders are illegal, void ab initio and can
be challenged at any time. The Hon’ble Apex Court in a
celebrated judgment in the case of State of Madhya
Pradesh Vs. Syed Qamarali 1967(I) SLR 228, which was
subsequently followed in many decisions, has
authoritatively ruled that the order of dismissal having been
made in breach of mandatory provision of the rules, such
order of dismissal had, therefore, no legal existence and it
was not necessary for the respondents to have the order set
aside by the court. The defence of limitation which was
based only on contention that the order has to be set aside
by a court before it became invalid must, therefore, be
rejected.
12. Not only that, the applicant claimed that he has filed the
appeal on 23.02.2000 (Annexure A5 Colly) to the Appellate
Authority which was received by the office of the President,
AIIMS, on 25.02.2000. Subsequently, he moved a
representation dated 21.01.2013 (Annexure A6 Colly)
claiming all the consequential benefits by ignoring the
impugned removal order.
13. The contesting respondents have neither specifically
denied nor produced any cogent record even to indicate that
applicant has not filed any appeal (Annexure A5
Colly)/representation (Annexure A6 Colly) or the same were
decided by the Appellate Authority. Moreover, the applicant
has claimed all consequential benefits along with amount of
pension and other emoluments along with interest, which to
our mind, is recurring and continuing cause of action.
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14. Thus, seen from any angle, it cannot possibly be said
that the OA filed by the applicant is barred by limitation as
contrary urged on behalf of respondents. Hence, it is held
that the main OA filed by the applicant is within the
prescribed period of limitation and the crux of law laid down
in Syed Qamarali (supra) is fully applicable in the present
case.
15. Once it is held that the main OA has been filed within
the period of limitation, learned counsel for applicant then
contended with some amount of vehemence that there is no
provision of law/rules that the applicant can retrospectively
be removed from his service with effect from 16.09.1993, the
date of his conviction, that too, simply on the ground of his
conviction in a criminal case by the impugned order dated
06.01.2000 by the competent authority.”
23. Aggrieved by the order dated 29.2.2016 passed by the
learned Tribunal, the respondent filed Writ Petition No. 5977
of 2016, which has been allowed by the High Court of Delhi by
the judgment and order dated 24.7.2017 impugned in this
appeal.
24. We have heard Ms. Meenakshi Arora, learned senior
counsel appearing on behalf of the appellant and Mr.
Dushyant Parashar, learned counsel appearing for the
respondent and perused the documents on record.
25. Ms. Arora submitted that the learned Tribunal had
rightly set aside the order of removal on the ground that the
same could not have been passed with retrospective effect
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from 16.9.1993. Furthermore, a mere conviction in a criminal
case could not, as held by the learned Tribunal, justify an
order under Rule 19, which postulates satisfaction by the
Disciplinary Authority, for reasons to be recorded in writing,
that the conduct of the employee, which had led to his
conviction in the criminal trial, was such that the punishment
should be imposed.
26. Ms. Arora argued that the appellant had filed the
Original Application before learned Tribunal within limitation,
which is also supported by the non obstante clause in sub
Section (3) of Section 21 of the Administrative Tribunals Act,
1985.
27. SubSection (3) of Section 21 has no application in the
facts and circumstances of this case, since the appellant
contended and the learned Tribunal accepted that the Original
Application had been filed within limitation. It was not the
case of the appellant that there was sufficient cause for the
delay of about thirteen years beyond the period of limitation in
filing the Original Application. Nor has the Tribunal arrived at
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any finding that there was good and sufficient cause for the
delay of about thirteen years, in filing the Application.
28. SubSection (3) of Section 21 is attracted when there is
sufficient cause for the delay in filing an appeal beyond the
period of limitation. The finding of the learned Tribunal that
the Original Application had been filed within limitation, as
argued by the appellant, is patently erroneous and has rightly
not been accepted by the High Court. It is well settled that
successive representations do not save limitation and
certainly does not justify delay of about thirteen years in
approaching the Tribunal. The judgment of the Division
Bench of the Punjab and Haryana High Court in
Sardar
1
Singh v. Union of India was rendered in the special facts
and circumstances of the case, where the claim of a soldier for
payment of disability pension was being denied only on the
ground that the disability was not attributable to, or
aggravated by, military service.
29. In support of her argument that the learned Tribunal
was right in entertaining and allowing the Original
1 1991 SCC Online P&H 1943
15
Application, Ms. Arora cited Union of India and Others v.
2
where this Court held :
Tarsem Singh
“7. To summarise, normally, a belated service related claim
will be rejected on the ground of delay and laches (where
remedy is sought by filing a writ petition) or limitation (where
remedy is sought by an application to the Administrative
Tribunal). One of the exceptions to the said rule is cases
relating to a continuing wrong. Where a service related claim
is based on a continuing wrong, relief can be granted even if
there is a long delay in seeking remedy, with reference to the
date on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury. But
there is an exception to the exception. If the grievance is in
respect of any order or administrative decision which related
to or affected several others also, and if the reopening of the
issue would affect the settled rights of third parties, then the
claim will not be entertained. For example, if the issue
relates to payment or refixation of pay or pension, relief may
be granted in spite of delay as it does not affect the rights of
third parties. But if the claim involved issues relating to
seniority or promotion, etc., affecting others, delay would
render the claim stale and doctrine of laches/limitation will
be applied. …..”
30. The proposition of law laid down by this Court in
Tarsem Singh (supra) is unexceptionable. It is well settled
that where there is a continuing wrong in relation to a service
related claim, relief may be granted notwithstanding delay,
provided the granting of the relief does not unsettle matters
settled and affect third parties. The judgment was, however,
2 (2008) 8 SCC 648
16
rendered in the context of discretionary relief in proceedings
under Article 226 of the Constitution of India, for which there
is no limitation prescribed. Where the cause of action is not a
continuing one the High Courts refuse monetary claim on the
ground of delay, specially arrears. In this context it would be
pertinent to refer to the concluding part of Paragraph (7) and
Paragraph (8) of the judgment of this Court in
Tarsem Singh
(supra) extracted hereinbelow:
“7. ……….Where a service related claim is based on a
continuing wrong, relief can be granted even if there is a
long delay in seeking remedy, with reference to the date
on which the continuing wrong commenced, if such
continuing wrong creates a continuing source of injury.
But there is an exception to the exception. If the
grievance is in respect of any order or administrative
decision which related to or affected several others also,
and if the reopening of the issue would affect the settled
rights of third parties, then the claim will not be
entertained. For example, if the issue relates to payment
or refixation of pay or pension, relief may be granted in
spite of delay as it does not affect the rights of third
parties. But if the claim involved issues relating to
seniority or promotion, etc., affecting others, delay would
render the claim stale and doctrine of laches/limitation
will be applied. Insofar as the consequential relief of
recovery of arrears for a past period is concerned, the
principles relating to recurring/successive wrongs will
apply. As a consequence, the High Courts will restrict the
consequential relief relating to arrears normally to a
period of three years prior to the date of filing of the writ
petition.
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8. In this case, the delay of sixteen years would affect
the consequential claim for arrears. The High Court was
not justified in directing payment of arrears relating to
sixteen years, and that too with interest. It ought to have
restricted the relief relating to arrears to only three years
before the date of writ petition, or from the date of
demand to date of writ petition, whichever was lesser. It
ought not to have granted interest on arrears in such
circumstances.”
31. Ms. Arora argued that the appellant had not been paid
pension, gratuity and general provident fund even though the
appellant had completed service of over 20 years from 1972 to
1993. The appellant had otherwise, actually completed 28
years of service. Ms. Arora also attacked the direction on the
appellant, in the Memorandum dated 6.1.2000, to return the
subsistence allowance with effect from 16.9.1993.
32. Removal under Rule 19(i) of the CCS (CCA) Rules, 1965
entails the consequence of forfeiture of retiral benefits such as
pension. The order of 6.01.2000 necessarily had to be
challenged before the learned Tribunal within the period of
limitation or alternatively the appellant would have to show
sufficient cause for the delay in filing the Original Application
beyond the period prescribed by limitation. The question of
entitlement, if at all, of the appellant to gratuity and provident
18
fund, notwithstanding his removal by the Memorandum dated
6.01.2000 was neither raised before nor considered by the
learned Tribunal. Nor was the question considered by the
High Court. The question cannot be raised at the stage of this
appeal.
33. The question of retrospective discharge and removal
cannot be raised after lapse of thirteen years. Whether the
judgment of this Court in Union Bank of India and Others
3
cited by Ms. Arora, at all
vs. C.G. Ajay Babu and Another
has any application, cannot be examined at the stage of this
appeal.
34. As recorded by the High Court, as early as on 5.03.1991,
FIR No.91 (the first FIR) had been registered against the
appellant who had been elected Executive Member of the
Cooperative Society. That FIR, as observed above, was under
Sections 406/420/468/471/477A/120B of the IPC for
causing, as Treasurer, pecuniary loss to the tune of Rs.5
lakhs to the Society, by forging signatures of its members.
3. (2018) 9 SCC 529
19
35. The appellant was arrested on 5.06.1991 and had
remained in custody till 12.06.1991. By an order dated
7.08.1991 the appellant was placed under deemed suspension
from the date of his arrest i.e., 5.06.1991 and paid
subsistence allowance. The High Court has very rightly taken
note of the fact that the first FIR had been quashed pursuant
to a settlement between the parties in terms whereof the
appellant paid an amount of Rs.2 lakhs and another amount
of Rs.2,46,130/ by way of bankers’ cheque, by way of
compensation for the loss caused to the Cooperative Society.
36. The judgment and order under appeal records that the
appeal filed by the appellant to the President, AIIMS was
rejected in 2000. However, a copy of the rejection order is not
available and was not brought on record.
37. Be that as it may, the order of dismissal dated 6.1.2000
under Rule 19(i)of CCS(CCA) Rules, 1985 was challenged on
2013 after almost 13 years. Even assuming that the appeal
was never decided, the cause of action for filing an application
before the Tribunal would have arisen on expiry of six months
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from the date of filing the appeal, in view of Section 20(2)(b) of
the Administrative Tribunals Act, 1985 set out hereinbelow:
“
20. Application not to be admitted unless other
remedies exhausted:
(2) For the purposes of subsection (1), a person shall be
deemed to have availed of all the remedies available to him
under the relevant service rules as to redressal of
grievances;
(a) …..
(b) where no final order has been made by the Government
or other authority or officer or other person competent to pass
such order with regard to the appeal preferred or
representation made by such person, if a period of six
months from the date on which such appeal was preferred or
representation was made has expired.”
The application to the Tribunal would have to be filed within
the period of limitation as prescribed in Section 21(1)(b) of the
Administrative Tribunals Act, which would start running from
the date of expiry of six months from the date of filing of
appeal. The contention of the appellant that the quashing of
the first FIR gave rise to a fresh cause of action is completely
misconceived.
4
38. In , a
S.S. Rathore vs. State of Madhya Pradesh
Constitution Bench of this Court held:
“ . It is appropriate to notice the provision regarding
21
limitation under Section 21 of the Administrative
Tribunals Act. Subsection (1) has prescribed a period of
one year for making of the application and power of
4. (1989) 4 SCC 582
21
condonation of delay of a total period of six months has
been vested under subsection (3). The civil court's
jurisdiction has been taken away by the Act and,
therefore, as far as government servants are concerned,
Article 58 may not be invocable in view of the special
limitation. Yet, suits outside the purview of the
Administrative Tribunals Act shall continue to be
governed by Article 58.
22. It is proper that the position in such cases should
be uniform. Therefore, in every such case only when the
appeal or representation provided by law is disposed of,
cause of action shall first accrue and where such order
is not made, on the expiry of six months from the date
when the appeal was filed or representation was made,
the right to sue shall first accrue. Submission of just a
memorial or representation to the head of the
establishment shall not be taken into consideration in
the matter of fixing limitation.”
39. In our considered opinion, the High Court rightly
declined to accept the finding of the Tribunal that the O.A.
was within the period of limitation.
40. The learned Tribunal opined that the O.A. had been filed
within limitation, relying on a judgment of this Court in
State
5
of Madhya Pradesh vs. Syed Qamarali and held that
orders such as the order of removal of the appellant which
were illegal or void ab initio could be challenged at any time.
As such orders had no legal existence, it was not necessary for
the respondent to have the order set aside by Court. The
5 (1967) 1 SLR 228
22
learned Tribunal has misconstrued the law laid down by this
Court in Syed Qamarali (supra).
41. The High Court rightly found that, in
Syed Qamarali
(supra) the suit challenging the order of termination, which
was held to be invalid, had been filed within the prescribed
period of limitation of six years under Article 120 of the
Limitation Act, 1908 which was the residuary article. In
Syed
Qamarali’s case the appeal had been rejected on 9.04.1947
and the suit filed on 8.12.1952. The period of six years has
been reduced to three years under Article 113 of the
Limitation Act, 1963.
42. On the other hand, in the
State of Punjab and Others
6
vs. Gurdev Singh referred to and relied upon by the High
Court, this Court held:
"8. But nonetheless the impugned dismissal order has at
least a de facto operation unless and until it is declared to be
void or nullity by a competent body or court. In Smith v. East
Elloe Rural District Council [1956 AC 736, 769 : (1956) 1 All
ER 855, 871] Lord Radcliffe observed: (All ER p. 871)
“An order, even if not made in good faith, is still an act
capable of legal consequences. It bears no brand of
invalidity on its forehead. Unless the necessary
proceedings are taken at law to establish the cause of
6 (1991) 4 SCC 1
23
invalidity and to get it quashed or otherwise upset, it
will remain as effective for its ostensible purpose as the
most impeccable of orders.”
9. Apropos to this principle, Prof. Wade states [See Wade:
Administrative Law, 6th edn., p. 352] : “the principle must be
equally true even where the ‘brand’ of invalidity ” is plainly
visible; for there also the order can effectively be resisted in
law only by obtaining the decision of the court. Prof. Wade
sums up these principles: [ Ibid.]
“The truth of the matter is that the court will invalidate
an order only if the right remedy is sought by the right
person in the right proceedings and circumstances. The
order may be hypothetically a nullity, but the court may
refuse to quash it because of the plaintiff's lack of
standing, because he does not deserve a discretionary
remedy, because he has waived his rights, or for some
other legal reason. In any such case the ‘void’ order
remains effective and is, in reality, valid. It follows that
an order may be void for one purpose and valid for
another; and that it may be void against one person but
valid against another.
10. It will be clear from these principles, the party
aggrieved by the invalidity of the order has to
approach the court for relief of declaration that the
order against him is inoperative and not binding upon
him. He must approach the court within the prescribed
period of limitation. If the statutory time limit expires
”
the court cannot give the declaration sought for .
43. In this case the order of removal was passed on
6.01.2000. The respondent had filed an appeal on 23.02.2000
Even assuming, as contended by the appellant that the appeal
was not disposed of, the limitation started running upon
expiry of six months from 23.2.2000, that is, around
24
23.8.2000. The Original Application was patently barred by
limitation, there being delay of 13 years in approaching the
learned Tribunal. Such inordinate delay could not have been
condoned.
44. The High Court rightly held that the law of limitation is
founded on public policy. The object of limitation is to put a
quietus on stale and dead disputes. A person ought not to be
allowed to agitate his claim after a long delay. There can be
no doubt that when retiral benefits are withheld without
cause, there would be a continuing cause of action. However,
when retirement benefits are withheld by way of disciplinary
action, the order would necessarily have to be challenged
within the period of limitation or alternatively there would
have to be sufficient cause for the delay. Once there is
cessation of employeremployee relationship by an order of
termination, the cause of action would necessarily arise when
the order of termination is passed. The forfeiture of
pensionary benefits by reason of a punitive order of
termination is not a continuing cause of action.
25
45. We are unable to accept Ms Arora’s submission that this
Court take a sympathetic view of the plight of the appellant
considering that the first FIR was quashed and after the
conviction pursuant to the second FIR the appellant was
released on probation of good conduct after which there was
no further complaint against him.
46. It is reiterated, at the cost of repetition that the first FIR
was quashed pursuant to a settlement between the appellant
and the respondent in terms whereof the appellant
compensated the pecuniary loss caused by him to the
Cooperative Society. The FIR was not quashed on the ground
that the same did not disclose any offence or was otherwise
frivolous, vexatious or harassive. While under suspension in
contemplation of disciplinary proceedings for misconduct
related to the first FIR, the appellant committed theft of a bag
containing money at a public place for which he was convicted
under Section 379 of the IPC. It cannot be said that absolute
penury led him to commit the offence as argued by Ms. Arora
since the appellant was receiving subsistence allowance while
26
under suspension. Any sympathy for the appellant would, in
our view, be completely misplaced.
47. The judgment and order of the High Court under appeal
does not call for any interference. The appeal is, therefore,
dismissed and the judgment and order of the High Court,
under appeal is affirmed.
.................................J.
(R. BANUMATHI)
..................................J
(INDIRA BANERJEE)
AUGUST 27, 2019
NEW DELHI