(O&M) State Of Punjab & Ors. vs Birinderpal Singh

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RSA-2344-2010 (O&M) --2--
liquor, were detained in the lock-up. He claimed that, without any
departmental inquiry, show-cause notice or written order, he was orally
informed by defendant No.2, Senior Superintendent of Police, Amritsar, that
he had been dismissed from service. He therefore challenged the alleged
dismissal as illegal, null and void, asserting that no order was ever
communicated to him and that he was denied an opportunity of hearing.
Despite his requests for a copy of the dismissal order and reinstatement, the
defendants allegedly failed to take any action. The cause of action, according
to the plaintiff, arose on 04.04.2005 when defendant No.2 declined to
furnish the alleged dismissal order. Hence, the present suit.
3. Upon notice, the defendants appeared and filed written
statement while pleading that the suit was not maintainable and was time
barred. It was pleaded that during checking, plaintiff was found having
consumed liquor while on naka duty. It was also pleaded that plaintiff was
appointed on daily wages and there was no provisions under Punjab Police
Rules to deal the said employee departmentally. It was further pleaded that a
detailed report dated 02.09.1993 was submitted to this effect in which he
was recommended for termination and the plaintiff was duly informed about
the termination.
4. On the basis of the pleadings of the parties, the learned trial
Court framed the following issues:-
“1. Whether order of dismissal passed by defendant No.2
against the plaintiff is illegal, null and void? OPP
2.Whether the plaintiff continues to be a constable enjoying
all the power and privileges attached to this post? OPP.
3. Whether the suit is maintainable? OPD.
4. Whether the suit is barred by limitation? OPP.
5. Relief.”
5. The learned Trial Court vide judgment and decree dated
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RSA-2344-2010 (O&M) --3--
08.10.2007, partly accepted the suit while directing the defendant-
department to afford proper opportunity to the plaintiff for being heard and
then pass an appropriate order as per rules.
6. Aggrieved thereof, the appellants-defendants preferred the
appeal, which came to be dismissed by the learned Additional District Judge,
Amritsar vide judgment and decree dated 12.12.2008. Hence, the present
appeal.
7. I have heard learned counsel for the parties and gone through
the paper-book.
8. In the present case, the respondent-plaintiff was enrolled as a
Home Guard in 1985 and, subsequently, on 18.06.1992, was enrolled as a
Special Police Officer on daily wages in the Police department at Amritsar in
terms of Section 17 of Police Act, 1861, however, he was disengaged from
service in September, 1993. Admittedly, the challenge to the said order of
disengagement was raised for the first time by way of a suit for declaration
instituted in June, 2005, seeking a declaration that the order of
disengagement was arbitrary, illegal, ineffective and inoperative. Thus, the
suit came to be instituted after an unexplained and inordinate delay of nearly
12 years from the date of disengagement.
9. With regard to the issue in hand, reliance is placed upon the law
laid down by the Hon’ble Supreme Court in the case of State of Punjab and
others v. Gurdev Singh and Ashok Kumar , reported as 1991 (3) SCT 91
where a three Judges Bench observed as under:
“8. 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
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RSA-2344-2010 (O&M) --4--
limitation. If the statutory time limit expires the Court cannot give the
declaration sought for.
*
11.  The Allahabad High Court in Jagdish Prasad Mathur and ors. v.
United Provinces Government, AIR 1956 Allahabad 114, has taken the
view that a suit for declaration by a dismissed employee on the ground
that his dismissal is void is governed by Article 120 of the Limitation
Act. A similar view has been taken by Oudh Chief Court in Abdul Vakil
v. Secretary of State and anr., AIR 1943 Oudh 368. 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 Article 113 of the
Limitation Act. The decision to the contrary taken by the Punjab &
Haryana High Court in these and other cases (State of Punjab v. Ajit
Singh, (1988)1 SLR 96 and State of Punjab v. Ram Singh, (1986)3 SLR
379 is not correct and stands overruled.”
10. The aforesaid principle squarely applies to the facts of the
present case. The respondent-plaintiff was disengaged in September, 1993,
but challenged the same only in June, 2005, after nearly 12 years. The
issuance of notice, by itself, could neither extend the period of limitation nor
revive a stale cause of action. The suit was, therefore, clearly barred by
limitation and liable to be dismissed on this ground alone.
11. Resultantly, in view of the discussion made herein-above, the
present petition is allowed and the judgments and decrees passed by both the
Courts below are hereby set aside. Decree sheet be prepared accordingly.
12. Pending application, if any, also stands disposed of.
26.08.2026 (HARKESH MANUJA)
sonika JUDGE
Whether speaking/reasoned: Yes
Whether reportable: Yes
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