Union Of India And Ors vs Suresh Devi
2024 Latest Caselaw 8039 P&H

Punjab-Haryana High Court

Union Of India And Ors vs Suresh Devi on 18 April, 2024

Author: Harsimran Singh Sethi

Bench: Harsimran Singh Sethi

                                       Neutral Citation No:=2024:PHHC:051881



RSA-943-2017 (O&M)               2024:PHHC:051881                 1

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH


(224)                            RSA-943-2017 (O&M)
                                 Date of Decision : April 18, 2024



Union of India and others                                   .. Appellants



                                 Versus

Suresh Devi                                                 .. Respondent



CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI

Present:     Mr. Narender Kumar Vashist, Sr. Panel Counsel,
             for the appellants.

             Mr. Sunil Hooda, Advocate, for
             Mr. Pawan Hooda, Advocate, for the respondent.

HARSIMRAN SINGH SETHI J. (ORAL)

CM-2092-C-2017

As prayed for, the application is allowed.

Delay of 36 days in re-filing the appeal is condoned.

CM-2093-C-2017

As prayed for, the application is allowed.

RSA-943-2017

1. In the present appeal, the challenge is to the judgment and

decree of the Courts below dated 06.03.2013 and 17.08.2016 by which, the

claim of the respondent-plaintiff for the grant of disability pension to her

late husband namely Constable Mahabir Singh, has been allowed.

2. Certain facts may be noticed for the correct appreciation of the

issue in hand.

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3. The late husband of the respondent-plaintiff was enrolled as

Constable with the Border Security Force on 18.02.1967. He was

discharged from service on 05.06.1973 on medical grounds. At the time,

the late husband of the respondent-plaintiff had served BSF for six years

and four months. The late husband of the respondent-plaintiff never raised

any grievance with regard to his discharge from service or with regard to

the non-grant of the disability pension and he ultimately died on

15.06.1995.

4. Thereafter also, no grievance was raised by the respondent-

plaintiff until the respondent-plaintiff in the year 2009 filed a representation

for claiming the disability pension in respect of the service rendered by her

late husband from the year 1967 till 1973. The said claim was initially

rejected on 01.09.2009. The respondent-plaintiff again raised the said claim

which was again rejected on 13.10.2009 and thereafter on 06.11.2009.

Lastly, the said claim was rejected on 06.01.2010, which is a conceded fact,

which has already come on record.

5. After the last rejection on 06.01.2010, the respondent-plaintiff

filed a civil suit in May 2013 claiming the disability pension on behalf of

her late husband. Keeping in view the evidence, which has come on record,

the said civil suit was allowed by the trial Court vide judgment and decree

dated 06.03.2013 wherein, it was held that once, the husband of the

respondent-plaintiff was discharged from service on the medical ground, he

should have been extended the pensionary benefits especially the disability

pension.

6. Feeling aggrieved against the judgment and decree of the trial

Court dated 06.03.2013, an appeal was preferred by the State, which was

also dismissed on 17.08.2016. Hence, the present regular second appeal.

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7. Learned counsel for the appellants argues that once, it has

already come on record that the claim of the respondent-plaintiff was

rejected by the authorities concerned vide order dated 01.09.2009, then

again on 03.10.2009, again on 06.11.2009 and lastly on 06.01.2010,

however the suit was filed in May 2013 which was even beyond the

limitation qua the last rejection on 06.01.2010 and as per the settled

principle of law settled by the Hon'ble Supreme Court of India in Civil

Appeal No.1852 of 1989 titled as State of Punjab and others vs. Gurdev

Singh, decided on 21.08.1991, even the void orders are to be challenged

within a period of three years and in the present case, in the civil suit filed,

there is no challenge to the impugned orders rejecting her claim but still, the

Courts below, despite noticing the said fact, have allowed the claim of the

respondent-plaintiff so as to treat the suit within limitation hence, findings

recorded by the Courts below are perverse and liable to be rejected. The

relevant paragraph of the said judgment is as under:-

" 4. First of all, to say that the suit is not governed by the law of Limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence, Section-2(J) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application. Section 2(J) also defines, "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act. The Court's function on the presentation of plaint is simply to examine whether, on the assumed facts the plaintiff is within time. The Court has to find out when the "right to sue" accrued to the plaintiff. If a suit is not covered by any of the specific

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articles prescribing a period of limitation, it must fail within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act 1908) is a residu- ary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article

113. According to the third column in Article 113, time commences to run when the right to sue accrues. The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the 'cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is insti- tuted (See: (i) Mt. Bole v. Mt. Koklam and Ors., AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. v. The Union of India, AIR 1970 SC 1433).

8. It will be clear from these principles, the party ag- grieved 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.

11. The Allahabad High Court in Jagdish Prasad Mathur and Ors. v. United Provinces Government, AIR 1956 All 114 has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void, is gov- erned by Article 120 of the Limitation Act. A similar view has been taken by Oudh Chief Court in Abdul Vakil v. Secre- tary of State and Anr., AIR 1943 Oudh 368. That in our opinion is the correct view to be taken. A suit for declara- tion that an order

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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 ((i)State of Punjab v. Ajit Singh,. [1988] 1 SLR 96 and (ii) State of Punjab v. Ram Singh, [1986] 2 SLR 379 is not correct and stands overruled."

8. Learned counsel for the respondent-plaintiff submits that once

the husband of the respondent-plaintiff was entitled for the disability

pension and non-grant of disability pension is a recurring cause hence, the

question of limitation could not have been brought into question and the

Courts below have rightly concluded that once the late husband of the

respondent-plaintiff was discharged on medical grounds, the disability

pension should have been granted and the same is liable to be upheld.

9. I have heard learned counsel for the parties and have gone

through the record with their able assistance.

10. The question of limitation will come into operation in the

present case despite the fact that it is a settled principle of law that non-

grant of pension/family pension is a recurring cause. In the facts and

circumstances of the present case, the late husband of the respondent-

plaintiff remained alive so as to claim the benefit of disability pension

starting from the year 1973 till he died in June 1995. For a period of 22

years, he never raised any grievance. Even after the death of late husband,

the respondent-plaintiff kept quite for a period of 14 years and filed

representation only in the year 2009 which was rejected by a specific order

passed on 01.09.2009, 13.10.2009, 06.11.2009 and 06.01.2010. Once the

claim of the respondent-plaintiff for the grant of disability pension was

rejected by a specific order and even if it is assumed that the limitation

period will start from the said rejection, then also, the suit was filed beyond

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the period of three years after the last rejection which was done on

06.01.2010 as the suit was filed in May 2013.

11. Further, the suit was filed after the rejection of the

representation filed by respondent-plaintiff, but none of the said rejection

order was under challenged in the said suit. In the absence of any

challenge to the orders by which her claim was rejected, the Courts below

despite noticing the said rejections, could not have allowed the claim of the

respondent-plaintiff. Once the claim has been declined by the appellants by

a specific order, and those orders were not under challenge and those

rejections were brought to the notice of the Court and were proved and were

also noticed in the impugned judgments which is also clear from the

judgments and decrees of the Courts below, the grant of relief in the

absence of any challenge of rejection, can only be treated as perverse

finding.

12. Keeping in view the above, as the impugned orders of rejection

of claim have never been challenged by the respondent-plaintiff, without

setting aside those impugned orders, the grant of relief was not at all

permissible and the Courts below have over looked the said aspect while

passing the judgments and decrees hence, the judgments and decrees are

perverse to the facts which have come on record as well as the settled

principle of law in Gurdev Singh's case (supra) hence, cannot sustain.

13. In view of the above, the judgments and decrees of the Courts

below are set aside and consequently, the suit filed by the respondent-

plaintiff is also dismissed.

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14. The present regular second appeal is disposed of in above

terms.

April 18, 2024                 (HARSIMRAN SINGH SETHI)
harsha                                JUDGE


           Whether speaking/reasoned : Yes/No
           Whether reportable       : Yes/No




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