R.S.A v. Kartar Singh, State of Punjab & Anr.

CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** *** Present : Mr. Vikas Singh, Advocate for the appellant. Mr. P.S.Thiara, Addl. AG Punjab for the respondents. ***

1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This appeal has been filed against the judgment and decree of the lower appellate Court whereby the judgment and decree of the trial Court was reversed and the suit of the appellant challenging the orders of punishment of stoppage of increments with cumulative effect was dismissed. The details of the impugned orders are as under :- “No.2458/62/Steno/GM, dated 5.5.1983 stopping four increments with cumulative effect. No.1490-91/Steno dated 16.3.1984 stopping one increment with cumulative effect. No.4235-37/TA dated 27.7.1983 stopping two increments R.S.A No. 1094 of 1993 ::2:: with cumulative effect.” The trial Court declared the orders dated 5.5.1983 and

16.3.1984 as having been passed after following due process of law but set aside the order dated 27.7.1983 being illegal, null and void. However, the lower appellate Court dismissed the suit being barred by limitation. No question of law was proposed when this appeal was filed. However, today counsel for the appellant has proposed the following question of law :- “ Whether the suit can be said to be barred by limitation since a recurrent cause of action has arisen to the appellant ?” Learned counsel for the appellant has placed reliance on Union of India and others versus Tarsem Singh (2008) 8 SCC 648 wherein the Hon'ble Supreme Court has held as follows :- “7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to R.S.A No. 1094 of 1993 ::3:: recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” Learned counsel for the respondent on the other hand has placed reliance on the judgment of the Hon'ble Supreme Court in State of Punjab and another versus Balkaran Singh (2006) 12 Supreme Court Cases 709, wherein it has been held as under :- It was argued on behalf of the plaintiffs, as was “16. done in the trial court, that the cause of action must be held to be a recurring one and hence the suit must be held to be not barred by limitation. Reliance was placed on the decision in Amrit Lal Berry v. CCE (1975) 4 SCC 714. That decision arose from a proceeding under Article 32 of the Constitution of India. It was not a suit. There was no occasion for this Court to consider the scope of Article 58 of the Limitation Act in that writ petition. It was only stated that when a citizen aggrieved by the action of the government department had approached the court and obtained declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievance to the court. This is hardly a defence to a plea based on Article 58 of the Limitation Act in respect of the relief of declaration with respect to an order which was issued twelve years prior to the suit and which immediately affected the pay receivable by them. In fact this Court in S.S. Rathore v. State of M.P. (1989) 4 SCC 582, a decision rendered by seven Hon'ble Judges, has clearly held in suits relating to service matters, that : (SCC p.591, para 21) “Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.” In a series of subsequent decisions, this Court has held that a suit for declaration in matters relating to a service is governed by Article 58 of the Limitation Act, 1963. (See for instance, Mohd. Quaramuddin v. State of A.P. (1994) 5 SCC 118, Vasant Ramchandara Deshpande v. State of Maharashtra (1997) 11 SCC 305, Rajasthan SRTC v. Nand Lal 1999 SCC (L&S) 658.) In State of Punjab v. Gurdev Singh (1991) 4 SCC 1 a three-Judges Bench of this Court held that a party aggrieved by the R.S.A No. 1094 of 1993 ::4:: order, even if it is found to be void, has to approach the court for relief of declaration that the order against him is inoperative and void within three years of the order.” Both the aforementioned judgments have been rendered by a Division Bench consisting of two Hon'ble Judges. In this connection, this Court is to be guided by the principles as laid down by the Full Bench of this Court in M/S Indo Swiss Time Limited, Dundahera v. Umrao and others, AIR 1981 Punjab and Haryana 213(1), wherein it was held as follows :- “23. Now the contention that the latest judgment of a co- ordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior court are of co-equal benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extent than both of them cannot be binding on the courts below. Inevitably a choice though a difficult one has to be made in such a situation. On principles of it appears to me that the high Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant. 38. On a careful consideration of the respective contentions of the learned counsel for the parties, in the light of various decisions cited by them, it transpires that the view taken in the judgment of the Supreme Court in Himalaya tiles and Marbles (P.) Ltd. (AIR 1980 SC 1118) (supra), on which reliance has been placed by Mr. Sarin, is in conflict with the view taken in the earlier judgment in Municipal Corporation of the City of Ahmedabad's case (1970) 1 SCWR 183(supra). As observed by my Lord the Chief justice, a perusal of the two judgments plainly indicates that there is a direct conflict on the point which needs our decision. Both the judgments have been rendered by a Bench consisting of two Hon'ble judges and cannot possibly be reconciled. In this situation a R.S.A No. 1094 of 1993 ::5:: some what interesting though tricky question arise for determination i. e., when there is a direct conflict between the two decisions of the Supreme Court rendered by co-equal Benches, which of them should be followed by the High Courts and the courts below.

39. On this question, my Lord the Chief Justice in his elaborate judgment has held that the Courts may follow the judgment which appears to them to state the law accurately and that mere incidence of time whether the judgment of the co-equal Benches of the superior Court are earlier of later is a consideration which appears to be hardly relevant. I have also given my thoughtful consideration to the entire matter and find myself in respectful agreement with the aforesaid observation of my Lord the Chief Justice.” Looked at from this angle, in my considered opinion the judgment in Tarsem Singh's case (supra) would further advance the cause of justice and state the law more accurately. Consequently, it has to be held that limitation would not hit the claim of the appellant in this case. Resultantly, this appeal is allowed, the judgment and decree of the lower appellate Court is set aside and that of the trial Court is restored. However, the benefit thereof would be granted to the appellant only for a period of 3 years and 2 months prior to the date of filing of the suit viz 27.3.1990. No costs. February 09, 2012. `kk' ( AJAY TEWARI ) JUDGE