Full Judgment Text
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PETITIONER:
S.S. RATHORE
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT06/09/1989
BENCH:
MISRA RANGNATH
BENCH:
MISRA RANGNATH
VENKATARAMIAH, E.S. (CJ)
MUKHARJI, SABYASACHI (J)
OZA, G.L. (J)
RAY, B.C. (J)
SINGH, K.N. (J)
NATRAJAN, S. (J)
CITATION:
1990 AIR 10 1989 SCR Supl. (1) 43
1989 SCC (4) 582 JT 1989 (3) 530
1989 SCALE (2)510
ACT:
Limitation Act, 1963--First Schedule--Articles 58 and
113--’When the right to sue or cause of action first ac-
crues’--Interpretation of--Held to be not from the date of
original adverse order but from the date when the order on
the statutory appeal is made or six months from the date of
preferring statutory appeal--Statutory appeals to be dis-
posed of expeditiously--Ordinarily a period of three to six
months to be the outer limit.
HEADNOTE:
The plaintiff-appellant was dismissed from service by
the Collector on 13.1.1966. His departmental appeal was
dismissed by the Divisional Commissioner on 31.8.1966.
Thereupon the appellant instituted a suit on 30.1.1969
asking for a declaration that the order of dismissal was
inoperative and that he continued to be in service. The suit
was dismissed by the trial court and that order was upheld
by the appellate courts. In dismissing the suit the courts
below accepted the defence plea that it had been filed
beyond the period of limitation prescribed therefore under
Article 58 of the first Schedule of the Limitation Act.
Hence this appeal. This appeal initially came up for hearing
before a Division Bench of this Court. At the hearing reli-
ance was placed before a decision of this Court in Sita Ram
Goel v. The Municipal Board, Kanpur & Ors., [1959] SCR 1148
in support of the contention that the suit was barred by
limitation. The Division Bench took the view that the deci-
sion of this Court rendered by five Judge Bench in Sita Ram
Goel’s aforesaid required reconsideration. This is how the
appeal has come up before a Seven Judge Bench. The question
that fell for determination by the Court was ’When was the
right to sue first accrued’ to the appellant i.e. whether
from the date when the original adverse order of dismissal
was passed against him or when the departmental/statutory
appeal was finally disposed of. The appellant’s contention
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is that the original order having merged in the final order
whereby his departmental appeal was disposed of, the right
to sue accrued from that date and on this reckoning, the
suit filed by him was within time.
44
Allowing the appeal and remanding the matter to trial
Court, this Court,
HELD: Powers of adjudication ordinarily vested in courts
are being exercised under the law by tribunals and other
constituted authorities. [51H]
In respect of many disputes the jurisdiction of the
court is now barred and there is a vesting of jurisdiction
in tribunals and authorities. That being the position, there
is no justification for the distinction between courts and
tribunals in regard to the principle of merger. [51H; 52A]
It must be held in the instant case, that the order of
dismissal made by the Collector did merge into the order of
the Divisional Commissioner when the appellant’s appeal was
dismissed on 31.8.1966. [52B]
The cause of action first arises when the remedies
available to the public servant under the relevant service
Rules as to redressal are disposed of. [53B]
The cause of action shall be taken to arise not from the
date of the original adverse order but on the date when the
order of the higher authority where a statutory remedy is
provided entertaining the appeal or representation is made.
Where no such order is made, though the remedy has been
availed of, a six months’ period from the date of preferring
of the appeal or making of the representation shall be taken
to be the date when cause of action shall be taken to have
first arisen. [53H; 54A]
In every such case until the appeal or representation
provided by a law is disposed of, accrual of the cause of
action shall first arise only when the higher authority
makes its order on appeal or representation 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. [54D]
Redressal of grievances in the hands of the departmental
authorities taken an unduly long time. That is so on account
of the fact that no attention is ordinarily bestowed over
these matters and they are not considered to be governmental
business of substance. This approach has to be deprecated
and authorities on whom power is vested to dispose of ap-
peals and revisions under the service Rules must dispose of
such matters as expeditiously as possible. [52G-H]
45
Ordinarily, a period of three to six months should be
the outer limit. That would discipline the system and keep
the public servant away from a protracted period of litiga-
tion. [53A]
Sita Ram Goel v. The Municipal Board, Kanpur & Ors.,
[1959] SCR 1148, overruled.
Madan Gopal Rungta v. Secretary to the Government of
Orissa, [1962] Supp. 3 SCR 906, followed.
Pierce Leslie Co. Ltd. v. Violet Ouchterlony Wapshare &
Ors., and vice verse, [1969] 3 SCR 203; State of Uttar
Pradesh v. Muhammad Nooh, [1958] SCR 595; Collector of
Customs, Calcutta v. East India Commercial Co. Ltd., [1963]
2 SCR 563; Somnath Sahu v. State of Orissa & Ors., [1969] 3
SCC 384; C.I.T.v. Amrit Lal Bhagilal & Co., [1959] SCR 713
and Raghuvir Jha v. State of Bihar & Ors., [1986] Suppl. SCC
372, referred to.
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 207 of
1984.
From the Judgment and Order dated 12.3. 1982 of the
Madhya Pradesh High Court in Misc Civil Case No. 539 of
1981.
Ranjit Kumar and Subhash Sharma for the Appellant.
Prithvi Raj and S.K. Agnihotri for the Respondent.
The Judgment of the Court was delivered by
RANGANATH MISRA, J. This appeal is by special leave and
is directed against the judgment of the High Court of Madhya
Pradesh by which the High Court has in second appeal upheld
the dismissal of the plaintiff’s suit on the plea of limita-
tion.
The plaintiff, a Government servant of Madhya Pradesh,
was dismissed from service by the Collector on 13th of
January, 1966. He preferred an appeal to the Divisional
Commissioner and that appeal was dismissed on 31.8.1966. The
order of dismissal of the appeal was communicated to the
plaintiff on 19.9.1960. The plaintiff gave notice under s.80
of the Code of Civil Procedure on 17.6.1969 and filed his
suit on 30th of September, 1969, asking for a declaration
that the order of dismissal was inoperative and he continued
to be in service. This
46
suit has been dismissed in the Courts below on acceptance of
the defence plea that it had not been filed within three
years from the date when the cause of action first arose, as
required under Article 58 of the First Schedule of the
Limitation Act, 1963.
When this appeal came up for hearing before a Division
Bench, reliance was placed on the decision of this Court in
Sita Ram Goel v. The Municipal Board, Kanpur & Ors., [1959]
SCR 1148 in support of the contention that the suit was
barred by limitation. The Division Bench extracted a passage
from Goel’s judgment where it said:
’The result is no doubt unfortunate
for the appellant, because the trial court
found in his favour in regard to his plea of
wrongful dismissal. If he had only brought the
suit within the period prescribed by section
326 of the Act, he might possibly have got
some relief from the Court. He, however, chose
to wait till the decision of the State Govern-
ment on his appeal and overstepped the limit
of time to his own detriment. We are unable to
come to any other conclusion than the one
reached above and the appeal must, therefore,
stand dismissed; but in the peculiar circum-
stances of the case we make no order as to
costs’,
and observed:
"Such unfortunate results should be avoided,
if it is possible to do so. We are of the view
that the decision in Sita Ram Goel’s case
which has been decided by a Bench of five
Judges requires to be reconsidered ..... "
(See 1988 Suppl. SCC 522)
That is how this appeal has come before the Seven Judge
Bench.
The plaintiff’s suit was one to obtain a declaration
that the order of dismissal was bad and he continued to be
in service. To such a suit the Courts below have rightly
applied Article 58 of the First Schedule of the Limitation
Act. That Article runs thus:
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"58. To obtain any Three When
the right to
other declaration. years sue
first accrues."
Appellant’s counsel placed before us the residuary
Article 113 and has referred to a few decisions of some High
Courts where in a
47
situation as here reliance was placed on that Article. It is
unnecessary to refer to those decisions as on the authority
of the judgment of this Court in the case of Pierce Leslie &
Co. Ltd. v. Violet Ouchterlony Wapshare & Ors. vice versa,
[1969] 3 SCR 203, it must be held that Article 113 of the
Act of 1963, corresponding to Article 120 of the old Act, is
a general one and would apply to suits to which no other
Article in the schedule applies.
The fate of this appeal, therefore, rests upon the
finding as to when the right to sue first accrued. All the
three Courts have accepted the position that on 1.3.1966
when the order of dismissal was made by the Collector, the
right to sue first accrued. Admittedly, the suit was not
filed within a period of three years from that date. The
appeal was dismissed on 31.8.1966. The sixty days’ time
spent for complying with the requirement of notice under s.
80 of the Code of Civil Procedure was available to the
plaintiff in addition to the period of three years. If the
date, therefore, counts, from the date of the appellate
order, the suit would be within time.
In Goel’s case the question of merger of the order of
the lower authority in the order of the higher authority was
considered. Adverting to this aspect, Bhagwati, J. who spoke
for the Court, said:
"The initial difficulty in the way
of the appellant, however, is that departmen-
tal enquiries even though They culminate in
decisions on appeals or revision cannot be
equated with proceedings before the regular
courts of law."
Reliance was placed on the observations of this Court in
State Uttar Pradesh v. Mohammad Nooh, [1958] SCR 595, where
it has been said:
.... an order of dismissal passed
on a departmental enquiry by an officer in the
department and an order passed by another
officer next higher in rank dismissing an
appeal therefrom and an order rejecting an
application for revision by the head of the
department can hardly be equated with any
propriety with decrees made in a civil suit
under the Code of Civil Procedure by the Court
of first instance and the decree dismissing
the appeal therefrom by an appeal court and
the order dismissing the revision petition by
a yet higher court, ..... because the de-
partmental
48
tribunals of the first instance or on appeal
or revision are not regular courts manned by
persons trained in law although they may have
the trapping of the courts of law ,’
and the Court proceeded to say:
"The analogy of the decisions of the courts of
law would, therefore, be hardly available to
the appellant."
Alternately, the Court also examined the question as to
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whether when the appeal of the appellate court affirming the
decree of the trial court was made, the original decree had
ceased to be operative. Bhagwati, J. quoted with approval
another part of the judgment in Moharnmad Nooh’s case, where
it was said:
"In the next place, while it is true that a
decree of a court of first instance may be
said to merge in the decree passed on appeal
therefrom or even in the order passed in
revision, it does so only for certain pur-
poses, namely, for the purposes of computing
the period of limitation for execution of the
decree as in Batuk Nath v. Munni Dei, 41
Indian Appeals 104, or for computing the
period of limitation for an application for
final decree in a mortgage suit as in Jowad
Hussain v. Gendan Singh, 53 Indian Appeals
197. But as pointed out by Sir Lawrence Jen-
kins in delivering the judgment of the Privy
Council in Juscurn Soid v. Pirthichand Lal, 40
indian Appeals 52, whatever be the theory
under other systems of law, under the Indian
law and procedure an original decree is not
suspended by the presentation of an appeal nor
is its operation interrupted where the decree
on appeal is merely one of dismissal. There is
nothing in the Indian law to warrant the
suggestion that the decree or order of the
court or tribunal of the first instance be-
comes final only on the termination of
all .proceedings by way of appeal or revision.
The filing of the appeal or revision may put
the decree or order in jeopardy but until it
is reversed or modified it remains effective.’
Bhagwati, J. then said:
"The original decree being thus operative what
we are really concerned with is the commence-
ment of the period of limitation as prescribed
in the relevant statute and if the
49
statute prescribes that it commences from the
date of the accrual of the cause of action
there is no getting behind these words in
spite of the apparent inequity of applying the
same."
In Mohammad Nooh’s case the question for consideration
was whether the impugned order in the proceedings under
Article 226 of the Constitution before the High Court was an
order prior to the Constitution and, therefore, the High
Court could not exercise its jurisdiction or was it one
pending at the commencement of the Constitution and the
revisional order being after the Constitution came into
force, the writ petition would be maintainable. The majori-
ty, as also Bose, J. who otherwise differed, agreed that
jurisdiction under Article 226 of the Constitution was not
retrospective. The majority opinion, however, was that it
would not be correct to say that the order of dismissal made
on April 20, 1948, merged in the appellate order dated May
7, 1949, and both the orders in due course merged in the
revisional order of April 22, 1950. The original of dismiss-
al was operative on its own strength. Bose, J. however,
observed:
"I see no reason why any narrow or
ultra technical restrictions should be placed
on them. Justice should, in my opinion, be
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administered in our Courts in a common-sense
liberal way and be broad-based on human values
rather than on narrow and restricted consider-
ations hedged round with hairsplitting techni-
calities ..... The final order was passed
after the Constitution on April 22, 1950. It
is true that if it had been passed before the
Constitution came into force on January 26,
1950, the petitioner would have had no remedy
in the Courts. But the Constitution breathed
fresh life into this land and conferred pre-
cious rights and privileges that were not
there before. Why should they be viewed nar-
rowly? Why should not that which would have
been regarded as still pending for present
purposes, if all had been done after the
Constitution, be construed in any different
way when the final act, which is the decisive
one for these purposes, was done after it?"
The problem in Mohammad Nooh’s case, therefore, was differ-
ent from what was for consideration in Goel’s case.
In Madan Gopal Rungta v. Secretary to the Government of
Orissa, [1962] Suppl. 3 SCR 906, a Constitution bench of
this Court was
50
examining the correctness of the finding of the High Court
that it had no jurisdiction to entertain a petition under
Article 226 of the Constitution as the revisional order was
that of Government of India located outside its territorial
jurisdiction. Rungta’s case took into consideration the
judgment in Mohammad Nooh’s case and stated:
"We are of opinion that the principle of
Mohammad Nooh’s case cannot apply in the
circumstances of the present case. The ques-
tion there was whether the High Court could
issue a writ under Art. 226 in respect of a
dismissal which was effective from 1948,
simply because the revision against the order
of dismissal was dismissed by the State Gov-
ernment in April, 1950 after the Constitution
came into force. It was in these circumstances
that this Court held that the dismissal having
taken place in 1948 could not be the subject-
matter of an application under Art. 226 of the
Constitution for that would be giving retro-
spective effect to that Article. The argument
that the order of dismissal merged in the
order passed in appeal therefrom and in the
final order of revision was repelled by this
Court on two grounds. It was held, firstly,
that the principle of merger applicable to
decrees of courts would not apply to orders of
departmental tribunals, and, secondly, that
the original order of dismissal would be
operative on its own strength and did not gain
greater efficacy by the subsequent order of
dismissal of the appeal or revision, and
therefore, the order of dismissal having been
passed before the Constitution would not be
open to attack under Art. 226 of the Constitu-
tion. We are of opinion that the facts in
Mohd. Nooh’s case were of a special kind and
the reasoning in that case would not apply to
the facts of the present case."
The view expressed by Wanchoo, J. in Rungta’s case meets
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with our approval. In Rungta’s case this Court ultimately
held that the order of the State Government had merged into
the order of the Central Government and the High Court was,
therefore, right in its view that it had no jurisdiction.
The next Constitution Bench decision of this Court is
that of Collector of Customs, Calcutta v. East India Commer-
cial Co. Ltd., [1963] 2 SCR 563 where this Court observed:
"The question, therefore, turns on whether the
order of
51
the original authority becomes merged in the
order of the appellate authority even where
the appellate authority merely dismisses the
appeal without any modification of the order
of the original authority. It is obvious that
when an appeal is made, the appellate authori-
ty can do one of three things, namely, (i) it
may reverse the order under appeal, (ii) it
may modify that order, and (iii) it may merely
dismiss the appeal and thus confirm the order
without any modification. It is not disputed
that in the first two cases where the order of
the original authority is either reversed or
modified it is the order of the appellate
authority which is the operative order and if
the High Court has no jurisdiction to issue a
writ to the appellate authority it cannot
issue a writ to the original authority. The
question therefore is whether there is any
difference between these two cases and the
third case where the appellate authority
dismisses the appeal and thus confirms the
order of the original authority. It seems to
us that on principle it is difficult to draw a
distinction between the first two kinds of
orders passed by the appellate authority and
the third kind of order passed by it. In all
these three cases after the appellate authori-
ty has disposed of the appeal, the operative
order is the order of the appellate authority
whether it has reversed the original order or
modified it or confirmed it. In law, the
appellate order of confirmation is quite as
efficacious as an operative order as an appel-
late order of reversal or modification."
A 3-Judge Bench decision in the case of Somnath Sahu v.
The State of Orissa & Ors., [1969] 3 SCC 384 is an authority
in support of the position as accepted by the two Constitu-
tion Bench judgments referred to above. There, it was held
in the case of a service dispute that the original order
merged in the appellate order of the State Government and it
is the appellate decision which subsisted and became opera-
tive in law and was capable of enforcement. That judgment
relied upon another decision of this Court in support of its
view being C.I.T .v. Amrit Lal Bhagilal & Co., [1959] SCR
713.
The distinction adopted in Mohammad Nooh’s case between
a court and a tribunal being the appellate or the revisional
authority is one without any legal justification. Powers of
adjudication ordinarily vested in courts are being exercised
under the law by tribunals and other constituted authori-
ties. In fact, in respect of many disputes the
52
jurisdiction of the court is now barred and there is a
vesting of jurisdiction in tribunals and authorities. That
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being the position, we see no justification for the distinc-
tion between courts and tribunals in regard to the principle
of merger. On the authority of the precedents indicated, it
must be held that the order of dismissal made by the Collec-
tor did merge into the order of the Divisional Commissioner
when the appellant’s appeal was dismissed on 31.8. 1966.
In several States the Conduct Rules for Government
servants require the administrative remedies to be exhausted
before the disciplinary orders can be challenged in court.
Section 20(1) of the Administrative Tribunals Act, 1985
provides:
"20(1). A Tribunal shall not ordinarily admit
an application unless it is satisfied that the
applicant had availed of all the remedies
available to him under the relevant service
rules as to redressal of grievances."
The Rules relating to disciplinary proceedings do pro-
vide for an appeal against the orders of punishment imposed
on public servants. Some Rules provide even a second appeal
or a revision. The purport of s. 20 of the Administrative
Tribunals Act is to give effect to the Disciplinary Rules
and the exhaustion of the remedies available thereunder is a
condition precedent to maintaining of claims under the
Administrative Tribunals Act. Administrative Tribunals have
been set up for Government servants of the Centre and sever-
al States have already set up such Tribunals under the Act
for the employees of the respective States. The law is soon
going to get crystallised on the line laid down under s. 20
of the Administrative Tribunals Act.
In this background if the original order of punishment
is taken as the date when cause of action first accrues for
purposes of Article 58 of the Limitation Act, great hardship
is bound to result. On one side, the claim would not be
maintainable if laid before exhaustion of the remedies; on
the other, if the departmental remedy though availed is not
finalised within the period of limitation, the cause of
action would no more be justiciable having become barred by
limitation. Redressal of grievances in the hands of the
departmental authorities take an unduly long time. That is
so on account of the fact that no attention is ordinarily
bestowed over these matters and they are not considered to
be governmental business of substance. This approach has to
be deprecated and authorities on whom power is vested to
dispose of appeals and revisions under the Service Rules
must dispose of such matters as
53
expeditiously as possible. Ordinarily, a period of three to
six months should be the outer limit. That would discipline
the system and keep the public servant away from a protract-
ed period of litigation.
We are satisfied that to meet the situation as has
arisen here, it would be appropriate to hold that the cause
of action first arises when the remedies available to the
public servant under the relevant service Rules as to re-
dressal are disposed of.
The question for consideration is whether it should be
disposal of one appeal or ’the entire hierarchy of reliefs
as may have been provided. Statutory guidance is available
from the provisions of sub-ss. (2) and (3) of s. 20 of the
Administrative Tribunals Act. There, it has been laid down:
"20(2). For the purposes of sub-section (1), a
person shall be deemed to have availed of all
the remedies available to him under the rele-
vant service rules as to redressal of griev-
ances,
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(a) if a final order has been made
by the Government or other authority or offi-
cer or other person competent to pass such
order under such rules, rejecting any appeal
preferred or representation made by such
person in connection with the grievances; or
(b) where no final order has been
made by tee 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.
(3) For the purposes of sub-sections
(1) and (2), any remedy available to an appli-
cant by way of submission of a memorial to the
President or the Governor of a State or to any
other functionary shall not be deemed to be
one of the remedies which are available unless
the applicant had elected to submit such
memorial."
We are of the view that the cause of action shall be
taken to arise not from the date of the original adverse
order but on the date when the order of the higher authority
where a statutory remedy is provided
54
entertaining the appeal or representation is made and where
no such order is made, though the remedy has been availed
of, a six months’ period from the date of preferring of the
appeal or making of the representation shall be taken to be
the date when cause of action shall be taken to have first
arisen. We, however, make it clear that this principle may
not be applicable when the remedy availed of has not been
provided by law. Repeated unsuccessful representations not
provided by law are not governed by this principle.
It is appropriate to notice the provision regarding
limitation under s. 21 of the Administrative Tribunals Act.
Sub-section (1) has prescribed a period of one year for
making of the application and power of condonation of delay
of a total period of six months has been vested under sub-
section (3). The Civil Court’s jurisdiction has been taken
away by the Act and, therefore, as far as Government serv-
ants 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 gov-
erned by Article 58.
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 considera-
tion in the matter of fixing limitation.
In view of what we have said above, Goel’s case must be
taken to have not been correctly decided.
Reliance was placed by appellant’s learned counsel on a
recent decision of a Two Judge Bench in the case of Raghubir
Jha v. State of Bihar & Ors., [1986] Suppl. SCC 372. The
conclusion reached is in accord with what we have held but
the legal position was not at all referred to or examined.
It is unnecessary to make any further reference to that
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judgment.
Now coming to the facts of the present appeal. Since
the claim has been dismissed on the plea of limitation and
our conclusion is that the suit was within time, the judg-
ments of the trial Court, the First
55
Appellate Court and the High Court are set aside and the
matter is remitted to the trial Court for disposal in ac-
cordance with law. Too long a period has now intervened
between the dismissal of the suit and our order of remand.
We, therefore, direct the learned trial Judge to take all
effective steps open to him in law to ensure that the suit
is disposed of finally before the 15th of December, 1989.
Costs shall abide the event.
Y.Lal. Appeal allowed.
56