Delhi High Court
Delhi Transport Corporation vs Ravi Kumar on 27 May, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 27.05.2011
+ R.S.A.No. 58/2010
DELHI TRANSPORT CORPORATION ...........Appellant
Through: Mr. Anand Nandan and Mr.
Bishwajit Bhattacharya, Advocates.
Versus
RAVI KUMAR ..........Respondent
Through: Mr.M. Hussain, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated
23.11.2009 which has endorsed the finding of the trial Judge
dated 27.01.2009 whereby the suit filed by the plaintiff Ravi
Kumar seeking a declaration to the effect that the punishment
order dated 05.01.1994 confirmed on 01.12.1994 be declared null
and void had been decreed.
2 The plaintiff was appointed as a conductor with the
defendant corporation i.e. Delhi Transport Corporation (DTC). On
25.06.1993 while performing his duty at bus No. 9790, a fee of
`3.50 paise was demanded by the plaintiff from the passenger;
passenger created a nuisance and was adamant to pay `3/- only;
in the meanwhile the bus arrived at Mohan Nagar; checking staff
checked the bus and on a complaint, the plaintiff was
apprehended; plaintiff was charge-sheeted on the ground that he
had apportioned this sum of `3/-. Enquiry was conducted against
him. He was found guilty of 29.10.1993. The order of punishment
dated 01.02.1994 was passed. The statutory appeal filed against
the order of the Disciplinary Authority was dismissed on
14.06.1996. He preferred a review petition on 11.05.1998 which
was disposed on 18.12.1999 informing his that there was no scope
for review or revision and the appeal was the last statutory
remedy available to him. Thereafter, there was a lull; suit No.
1174/2006 was filed on 26.05.2006.
3 The trial Judge had framed the following three issues:-
1. Whether the suit is barred by limitation? OPD
2. Whether the plaintiff is entitled to the relief of declaration as prayed for?
OPP
3. Relief.
4 Issue No. 1 is relevant. It relates to the issue of limitation.
Admittedly the statutory appeal filed by the plaintiff before the
Department had been dismissed on 14.06.1996. The trial Judge
had taken into account the various representations which had
been made by the plaintiff in this intervening period i.e.
representations dated 01.03.1996, 13.05.1998, 31.07.1996,
23.12.1998, 15.04.1999 and lastly on 20.02.2006 Ex. PW-1/11 to
Ex. PW-/17 to hold that these representations had enlarged the
period of limitation and the suit filed on 26.05.2006 was within
limitation. This finding was endorsed by the first appellate court.
This finding is clearly a perversity.
5 The Supreme Court in (1989) 4 SCC 582 S.S. Rathore Vs.
State of Madhya Pradesh had examined the position qua these
submissions; a suit for declaration against an order of dismissal
was held to be covered by Article 58 of the Limitation Act, cause
of action arose when the order was finally disposed of by a higher
authority on appeal or representation made by the aggrieved
employee in exhaustion of his statutory remedy and if no such
final order is made on the expiry of six months from the date of
appeal and this representation; the time spent on memorials and
representations were not to be considered. This is the ratio of this
judgment. Relevant extract herein as under:-
"20. 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 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.
21. It is appropriate to notice the provision regarding limitation under Section
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 servants are concerned, Article 58 may not be evocable 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 until the appeal or representation provided by a law is disposed
of, accrual of case of action for 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 as representation was made. 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."
6 Suit filed by the plaintiff is liable to be dismissed on this
ground alone.
7 Learned counsel for the appellant has further submitted that
the Enquiry Officer is not an officer who is sitting in appeal; he
cannot reexamine and reappreicate the facts which have already
been scrutinized by the Enquiry Officer and this has been done by
the two courts below.
8 Record shows that both the courts below while disposing of
issues No. 2 & 3 had apart from the oral testimony of the driver of
the vehicle had been adverted to wherein it was noted that his
testimony recorded before the Enquiry Officer (Ex.PW-1/2) had
stated that the checking officials had caught hold of the passenger
who had not paid the correct amount which was to the effect that
on non-payment of 50 paise, the conductor has raised a quarrel; it
would have been difficult to imagine that the conductor wanted to
retain `3/- given by the passenger; this testimony of the driver had
been relied upon by both the courts below to hold that the plaintiff
was not guilty of the charges leveled against him. These fact
findings by the two courts below call for an interference.
9 This is a second appeal. It has been admitted and on
12.01.2011, the following substantial question of law was
formulated:-
"Whether the finding in the impugned judgment dated 23.11.2009 on the
question of limitation as also on other counts are perverse? If so, its effect?"
10 Since the question on limitation is against the plaintiff, suit
having been filed beyond the period of limitation, the appeal is
liable to be allowed on this ground alone. Suit being barred by
limitation, it is dismissed.
11 Substantial question of law is accordingly answered in
favour of the appellant and against the respondent. Appeal is
allowed.
INDERMEET KAUR, J.
MAY 27, 2011
a
