Punjab-Haryana High Court
Ashok Kumar vs State Of Haryana And Others on 21 October, 2024
Author: Suvir Sehgal
Bench: Suvir Sehgal
RSA-2171-2022 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
(238)
RSA-2171-2022 (O&M)
Date of decision:- 21.10.2024
ASHOK KUMAR ... APPELLANT
VERSUS
STATE OF HARYANA AND OTHERS ... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SUVIR SEHGAL
Present:- Mr. Alakh Bhatt, Advocate for
Mr. Sandeep Singal, Advocate
for the appellant.
Mr. Aman Bahri, Addl. A.G., Haryana
****
SUVIR SEHGAL, J. (ORAL)
CM-7423-C-2022
1. For the reasons given in the application, it is allowed.
2. Delay of 69 days in the re-filing of the appeal is condoned.
CM-7424-C-2022
3. Exemption, as prayed for, is granted.
4. Application is allowed.
RSA-2171-2022
5. Appellant-plaintiff is in second appeal before this Court
challenging the judgments and decrees passed by the Courts below,
whereby the suit for declaration and mandatory injunction filed by him has
been dismissed.
authenticity of this order/judgment
RSA-2171-2022 (O&M) -2-
6. Factual position leading to the filing of the appeal is that plaintiff
was working as a Conductor with the defendants and was promoted to the
post of Sub Inspector. During his service tenure, he was served with some
charge sheets on various allegations, which were contested by him.
Defendant No.3 passed orders dated 26.09.1994, 04.09.1994, 20.11.1995,
28.11.1995, 05.03.1997 and 09.08.2001 imposing punishments, whereby
some increments were withheld. Pleading that he had not been given any
opportunity of being heard before the passing of the penal orders, plaintiff
filed the suit for declaration and mandatory injunction. Upon being served,
suit was contested by the defendants by filing a joint written statement,
wherein various preliminary objections were raised. It was submitted that
the plaintiff had embezzled government money by not depositing the bus
ticket fare and his service record was un-satisfactory. He was awarded
punishments for acts of omission and commission. Plaintiff filed a
replication to the written statement filed by the defendants by re-iterating
his stand. Trial Court framed issues on the basis of the pleadings of the
parties, who led evidence in support of their respective case. After the
parties were heard, by judgment and decree dated 29.07.2019, Trial Court
dismissed the suit. Plaintiff remained unsuccessful before the First
Appellate Court and his appeal was dismissed by the learned District Judge,
Rohtak by judgment dated 20.03.2020 resulting in the institution of the
present appeal.
7. Counsel for the appellant has argued that both the Courts have
erred in dismissing the suit as being barred by time, even though no issue
authenticity of this order/judgment
RSA-2171-2022 (O&M) -3-
was framed on the question of limitation. By referring to the testimony of
Virender Kumar, DW-2, Clerk, he contends that the record of the
disciplinary proceedings was not available with the defendants, who have
failed to establish that due procedure was adopted before passing the
punishment orders.
8. Per contra, learned State counsel has opposed the appeal and has
urged that under Section 3 of the Limitation Act, 1963, it is obligatory for
the Court to examine as to whether the suit is within time. He submits that
the suit for declaration filed by the appellant-plaintiff is beyond the
prescribed period of three years and has been rightly dismissed by both the
Courts below.
9. I have considered the arguments addressed by counsel for the
parties as well as examined the paper-book of the appeal.
10. The arguments of counsel for the appellant deserve to be noticed
and are rejected. The law is well settled. In V.M. Salgaocar and Bros.
Versus Board of Trustees of Port of Mormugao and another (2005) 4
SCC 613, Supreme Court has held as follows:-
"20. The mandate of Section 3 of the Limitation Act is that
it is the duty of the court to dismiss any suit instituted after
the prescribed period of limitation irrespective of the fact
that limitation has not been set up as a defence. If a suit is
ex facie barred by the law of limitation, a court has no
choice but to dismiss the same even if the defendant
intentionally has not raised the plea of limitation.
21. This Court in Manindra Land & Building
Corpn. Ltd. v. Bhutnath Banerjee [(1964) 3 SCR 495 :
authenticity of this order/judgment
RSA-2171-2022 (O&M) -4-
AIR 1964 SC 1336] held (AIR para 9):-
"Section 3 of the Limitation Act enjoins a
court to dismiss any suit instituted, appeal
preferred and application made, after the
period of limitation prescribed therefor by
Schedule I irrespective of the fact whether the
opponent had set up the plea of limitation or
not. It is the duty of the court not to proceed
with the application if it is made beyond the
period of limitation prescribed. The Court had
no choice and if in construing the necessary
provision of the Limitation Act or in
determining which provision of the Limitation
Act applies, the subordinate court comes to an
erroneous decision, it is open to the court in
revision to interfere with that conclusion as
that conclusion led the court to assume or not
to assume the jurisdiction to proceed with the
determination of that matter."
11. Section 3 of the Limitation Act, 1963, casts a duty on the Court to
dismiss a suit if it is barred by time, even if limitation has not been set up as
a defence. The argument of counsel for the appellant does not hold water.
12. This Court will now deal with the second argument of the
appellant-plaintiff. In State of Punjab and others Versus Gurdev Singh
and Ashok Kumar, (1991) 4 SCC 1, Supreme Court has held that a 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 limitation
and if the statutory time limit has expired, the Court cannot give the
declaration sought for.
13. Following this judgment, in State of Punjab and others Versus
Rajinder Singh, 1999 SCC (L&S) 664, Supreme Court observed as under:-
authenticity of this order/judgment
RSA-2171-2022 (O&M) -5-
"4. After conducting departmental enquiry, by
proceedings dated 10.12.1981, two increments with
cumulative effect were stopped. The suit was filed on 15-
1-1988. Article 58 of the Schedule to the Limitation Act
21 of 1963 prescribes three years limitation from the date
of the order, to seek a declaration that the impugned
order was illegal and did not bind him. The residuary
provision is Article 113 also equally prescribes the
limitation of three years. The limitation starts running
from the date of passing of the order withholding
increments. On expiry of three years from that date, the
limitation expires by the efflux of time. Consequently, the
suit gets barred by limitation. Section 3 of the Limitation
Act directs the court to take notice of the bar of limitation
before proceeding further. This legal position was set at
rest by the judgment of this Court in State of Punjab v.
Gurdev Singh, (1991) 4 SCC 1. The suit of the
respondent is barred by limitation."
14.Adverting to the admitted facts of the present case, appellant-plaintiff
was imposed with punishments vide penal orders passed between the year
1994 to the year 2001. He has challenged all these orders by filing a suit for
declaration, which was instituted by him on 26.04.2017. The suit was
instituted by him after more than 15 years of passing of the last punishment
orders. The suit is clearly barred by limitation as it has been filed beyond
the period of three years of passing of the last punishment order dated
09.08.2001. In view of the clear enunciation of law by the Supreme Court,
as has been noticed above, the judgment of this Court in Malkiat Singh
authenticity of this order/judgment
RSA-2171-2022 (O&M) -6-
Versus State of Haryana, 2007 (4) SCT 801, relied upon by counsel for the
appellant would not be attracted to the facts of the present case. This Court
does not find any infirmity or illegality in the judgments passed by the
Courts below, which are upheld.
15. As a consequence of the above discussion, the appeal being bereft
of merit is dismissed with no order as to cost.
(SUVIR SEHGAL)
JUDGE
21.10.2024
Kamal
Whether Speaking/Reasoned Yes/No
Whether Reportable Yes/No
authenticity of this order/judgment
