Punjab-Haryana High Court
Balbir Kaur vs State Of Punjab on 19 March, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:039485
RSA-2539-1995 (O&M) -1- 2024:PHHC:039485
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
203 RSA-2539-1995 (O&M)
Date of Decision :19.03.2024
Balbir Kaur ...Appellant
Versus
State of Punjab and another ...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Sukhjeet Singh, Advocate for the appellant.
Mr. Rohit Ahuja, DAG, Punjab.
***
Harsimran Singh Sethi, J. (Oral)
1. In the present regular second appeal, challenge is to judgment
and decree of the lower Appellate Court dated 24.04.1995, by which the suit
filed by the appellant-plaintiff has been held to be time barred.
2. It may be noticed that husband of the appellant-plaintiff
namely, Gurdev Singh was working as Laboratory Attendant in the office
of Chief Agricultural officer, Sangrur. While working as such, a charge
sheet dated 30.06.1983 was issued to him, however the husband of the
appellant-plaintiff did not reply to the said charge-sheet and ultimately an
Enquiry Officer was appointed and after proving the charges alleged in the
said charge sheet dated 30.06.1983, services of the Gurdev Singh was
terminated by the respondents vide order dated 08.03.1984.
3. It may be noticed that from the year 1982 onwards, Gurdev
Singh has remained absent from duty and even after passing of the order of
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termination dated 08.03.1984, Gurdev Singh never agitated the said
termination order before any authority for a period of more than 05 years
and he died on 11.06.1989. After the death of Gurdev Singh, appellant-
plaintiff being a widow of Gurdev Singh filed a civil suit challenging the
order of termination of service of Gurdev Singh dated 08.03.1984.
3. Learned trial Court held that the suit was maintainable on the
ground that after the death of Gurdev Singh in the year 1989, a notice under
Section 80 of the CPC was given by the appellant-plaintiff and in the reply
of the said notice, it was mentioned that services of the Gurdev Singh had
been terminated on 08.03.1994 i.e. during his lifetime hence, limitation
period will only start from the date of the reply to the legal notice given by
the appellant/plaintiff under Section 80 of the C.P.C. The suit filed by the
appellant-plaintiff was allowed and order of termination of service of the
Gurdev Singh was held to be bad by the trial Court vide judgment and
decree dated 17.05.1993.
4. Feeling aggrieved against the said judgment and decree dated
17.05.1993 of the trial Court, respondent-State preferred an appeal before
the lower Appellate Court, and the lower Appellate Court vide judgment
and decree dated 24.04.1995 set aside the judgment and decree of the trial
Court on the ground that once, the order of termination was passed qua
Gurdev Singh during his life time and Gurdev Singh never agitated the said
order till his death, after the death of Gurdev Singh, appellant-plaintiff
cannot say that she came to know about the order of termination of service
of Gurdev Singh only in the year 1990 hence, limitation period will start
from the date of passing of the order of termination dated 08.03.1994 and
the limitation period qua the said challenge already stood expired during the
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life time of Gurdev Singh. Said judgment and decree of the lower Appellate
Court dated 24.04.1995 is under challenge in this regular second appeal.
5. Learned counsel for the appellant-plaintiff submits that once,
the trial Court recorded a finding that the widow of Gurdev Singh came to
know about the order of termination in the year 1990 through the reply to
the notice served by her under section 80 of the CPC, said findings are
correct and the same have wrongly been set aside by the lower Appellate
Court.
6. Learned counsel for the respondent-State submits that once, the
order of termination was passed in the year 1984 and Gurdev Singh
remained alive for a period of five years after the passing of the said order
of termination, the findings recorded by the lower Appellate Court are
correct and same are liable to be upheld.
7. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
8. It may be noticed that disciplinary proceedings were held
against Gurdev Singh for remaining absent from duty. Charges were proved
and order of termination was passed on 08.03.1984 i.e. during the life time
of Gurdev Singh. In case, Gurdev Singh was aggrieved against the said
order of termination from service, he could have raised the grievance during
his life time but after the death of Gurdev Singh in the year 1989, appellant-
plaintiff stepped into the shoes of the Gurdev Singh so as to challenge the
order of termination dated 08.03.1984. Once, the appellant-plaintiff stepped
into the shoes of Gurdev Singh, who had not challenged the order of
termination during his life time and limitation period qua the challenge
to the order dated 08.03.1984 had already expired, merely, that in the reply to
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the notice served by the appellant-plaintiff under Section 80 of the CPC, a
fact regarding the termination of service of Gurdev Singh was mentioned,
the same will not provide a fresh limitation period to the appellant-plaintiff
to file a civil suit.
9. Further, as per the judgment of the Hon'ble Supreme Court of
India in Civil Appeal No.1852-1989, titled as, State of Punjab and others
vs. Gurdev Singh and Ashok Kumar, decided ib 21.08.1991, even a void
orders are to be challenged within a period of three years. Relevant
paragraphs of the judgment are 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
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 "fight to sue" accrued to the plaintiff. If a suit is not
covered by any of the specific articles prescribing a
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period of limitation, it must fall 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 residuary 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 Art.
120 it was six years which his 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 then 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 instituted
[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).
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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
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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."
10. Keeping in view the above, as there is no perversity in the
findings recorded by the lower Appellate Court qua the maintainability of
the suit filed by the appellant-plaintiff qua the challenge to the order of
termination of services of Gurdev Singh dated 08.03.1984, which was filed
much after the expiry of limitation period, no ground for interference is
made out by this Court and the present regular second appeal is accordingly
dismissed.
11. Civil miscellaneous application pending, if any, is also
disposed of.
March 19, 2024 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/Now
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