Krishan Lal v. Punjab Steate Warehousing Corporation

Mr. Arun Bansal, Advocate for the respondent. RANJIT SINGH J. This Regular Second Appeal is filed by Krishan Lal, who was working as Assistant with Punjab State Warehousing Corporation, Chandigarh (hereinafter referred to as 'Corporation') and is resident of Bathinda. The appellant was posted as Accounts Clerk in the Corporation in January, 1969. He was promoted as Warehousing Manager and subsequently as Sub Divisional Clerk on 08.08.1972. He was again promoted as Warehousing Corporation Grade III and deputed to look after the work of Assistant in the office of District Manager, Bathinda. On 03.03.1978, he was posted as Warehousing Manager, Alwalpur. The appellant did not join his duties at the said place and sent an application for casual leave which was supported by medical certificate. The appellant has averred in the plaint that he was never informed about rejection of his causal leave but was sent Regular Second Appeal No. 3387 of 1985 2 order terminating the services under Regulation 11 of Punjab State Warehousing Corporation Staff Regulations of the Corporation. He, accordingly, filed the suit alleging that he could not be treated on probation as he had to be deemed to have been confirmed, once he had remained in service for number of years and had even received promotion. Accordingly, the appellant would contend that the order passed against him could not have been so passed without holding any inquiry and giving him an opportunity to defend himself. The respondent/Corporation filed written statement raising the plea that the suit was barred by limitation and that it was not maintainable. Respondent also challenged the jurisdiction of the Court to entertain the suit. It was also urged that there was no order of confirmation made and as such the appellant was on probation and was required to be treated on probation. On the basis of pleadings following issues were framed:-

1. Whether the suit is within limitation? OPP

2. Whether order impugned is illegal, arbitrary, unjust without jurisdiction, against principles of natural justice as pleaded in the plaint? OPP.

3. Whether plaintiff is entitled to the declaration sought for? OPP.

4. Relief. The issue of limitation was taken up as a part of the issue framed while considering issue of jurisdiction. The trial Court decided the issue of limitation against the respondent-Corporation by making Regular Second Appeal No. 3387 of 1985 3 reference to the case of State of Madhya Pradesh Vs. Syed Qamarali, 1967 SLR 228 (SC), where it was held that the void order has no existence and therefore, no question of limitation arises to challenge such an order, which is void. Against this judgment, the Corporation filed an appeal, which was allowed though on different grounds. Without going into the other aspects of the issue involved in this case, I am of the view that the issue of limitation alone would be enough to decide the case. The case of Syed Qamarali (supra) has subsequently been considered by the Hon'ble Supreme Court in the case of State of Punjab versus Gurdev Singh 1991 (3) S.C.T. 488. In this case, the Hon'ble Supreme Court has held that limitation of three years to file the suit in case where the employee is dismissed would be governed by the residuary Article 113 of the limitation Act. The following observations made in the case of Syed Qamarali (supra) were taken note of in the case of Gurdev Singh (Supra):- “ We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under Section 7 could be exercised, is totally invalid. The order of dismissal had therefore, no legal existence and it was not necessary for the respondent to have the order set aside by a Court. The defence of limitation which was based only on the contention that the order had to be set aside by a Court before it became invalid must therefore Regular Second Appeal No. 3387 of 1985 4 be rejected.” The Hon'ble Supreme Court went on to comment on the above observation made in Syed Qamarali's case (supra) while deciding Gurdev Singh's case (supra):- “ These observations are of little assistance to the plaintiffs in the present case. This court only emphasized that since the order of dismissal was invalid being contrary to para 241 of the Berar Police Regulations, it need not be set aside. But it may be noted that Syed Qamarali brought the suit within the period of limitation. It was dismissed on 22 December, 1945. His appeal against the order of dismissal was rejected by the Provincial Government on 9 April, 1947. He brought the suit which had given rise to the appeal before the Supreme Court on 8 December, 1952. The right to sue accrued to Syed Qamarali when the Provincial Government rejected his appeal affirming the original order of dismissal and the suit was brought within six years from that date as prescribed under Article 120 of the Limitation Act, 1908.” The judgments on the issue of limitation rendered by the Allabhad High Court in the case of Jagdish Prasad Mathur v. United Provinces Government, AIR 1956 All 114 and Abdul Vakil v. Secretary of State, AIR 1943 Oudh 368 were approved in the case of Gurdev Singh's (supra) and the judgment of this Court in the cases of State of Punjab v. Ajit Singh (1981) 1 Serv LR 96 (Punj & Regular Second Appeal No. 3387 of 1985 5 Har) 96 and State of Punjab v. Ram Singh, (1986) 3 Serv LR 379 (Punj & Har), were overruled as not taking the correct view. The counsel for the appellant, however, contends that the limitation would not be an issue as the appellant was pursuing his remedy before the Labour Court from 25.2.1979 to 9.8.1982, when the case was dismissed for want of jurisdiction. The counsel would, thus, contend that Section 14 of the Limitation Act would apply in this case. The principle that the period during which the person was pursuing remedy before a Court should be excluded for computing the period of limitation would apply in cases where the suit is filed in the wrong Court i.e. the Court having no jurisdiction to entertain it or that where suit is instituted in a wrong Court in consequence of bonafide mistake of law or defect of procedure or not in cases where party has chosen altogether different remedy before a different Court having jurisdiction to grant relief. (See Lal Bihar Lal and aother Vs. Bani Madhava Khatri and others, AIR 1949 Patna293). Section 14 of the Limitation Act speaks of prosecution of proceedings in a Court which from defect of jurisdiction or other cause of like nature is unable to entertain it. The Hon'ble Supreme Court in M/s Shakti Tubes Ltd. Tr. Director Vs. State of Bihar & Ors., 2009 (1) RCR (Civil) 512, has assigned the meaning and purpose to words “other cause of like nature”. The appellant has not indicated in any manner that the approach made before the Labour Court in this case was in a belief of a bonafide mistake of law or fact or as a consequence of defect or procedure. Nothing is stated to urge that the labour Court had lacked in jurisdiction to entertain the suit or reference. The Regular Second Appeal No. 3387 of 1985 6 benefit of Section 14, thus, to exclude the period of limitation strictly can not apply to the facts of the present case. In this view, the suit was liable to be dismissed only on the ground of limitation. I am thus not inclined to interfere in the Regular Second Appeal as this substantial question of law was wrongly decided by the trial Court. On this ground, no case for interference in the Regular Second Appeal is made out. Dismissed. March 17, 2010 ( RANJIT SINGH ) JUDGE