State of Uttar Pradesh v. Lalai — 1978 DIGILAW 572 (ALL)

JUDGMENT S.D. Agarwal, J. - This is defendants second appeal arising out of a suit for declaration that the order dated 4th February, 1956 and the action of taking over the charge from the plaintiff-respondent on 30th April, 1956 are unconstitutional, ultra vires and ineffective and the plaintiff-respondent still continues to be in service of the State of U. P. 2. The plaintiff-respondents case was that he was appointed as a Lekh-pal on 9th April, 1953 on probation for one year. After the expiry of the period of probation he was deemed to have been confirmed in the permanent cadre of the lekhpal and the State of U. P. had no jurisdiction to terminate the services of the plaintiff-respondent without affording him an opportunity and as such, the order was in violation of Article 311 of the Constitution and Rule 55 sub-clause (3) of Civil Services (Classification, Control and Appeal) Rules. 3. The State of U. P. contested the suit on the ground that the plaintiff-respondent was not a permanent employee. His services were terminated since he had failed to pass the departmental examination and his work was found unsatisfactory. 4. The trial court held that the plaintiff-respondent was not a permanent employee but his services were terminated illegally and as such the termination order dated 4th February, 1956 was illegal and in violation of Article 311 of the Constitution of India. The trial court further found that the suit was barred by limitation and hence the suit was dismissed. 5. The plaintiff-respondent filed an appeal. Before the lower appellate court the only question which was argued at length was as to whether the suit was within time or not. The lower appellate court came to the conclusion that the suit for declaration filed by the plaintiff-respondent was within time. In regard to the question as to whether the termination order dated 4th February, 1956 was hit by Article 311 of the Constitution the lower appellate court on the concession of the counsel for the appellant held that the termination order was in violation of Article 311 of Constitution of India. In view of this finding the appeal was allowed and the suit of the plaintiff-respondent was decreed. Aggrieved the State of U. P. and the Sub-Divisional Officer, Azamgarh have filed the present appeal. 6. In view of this finding the appeal was allowed and the suit of the plaintiff-respondent was decreed. Aggrieved the State of U. P. and the Sub-Divisional Officer, Azamgarh have filed the present appeal. 6. Sri A. P. Singh, learned standing counsel appearing on behalf of the appellants has raised two contentions before me. His first contention is that the lower appellate court has erred in holding that the suit was not barred by limitation. His contention is that the order of dismissal was dated 4th February, 1956 and the suit was filed on 6th November, 1962 beyond six years of the date of order and hence under Article 120 of the Limitation Act of 1908 the suit was barred by limitation. The second contention is that the finding recorded by the lower appellate court on the basis of the concession was illegal. The order of termination is not hit by Art. 311 of the Constitution of India. 7. I have heard the counsel for both the parties at great length. Since in my opinion the first contention raised by the learned Counsel for the appellant is correct it is not necessary for me to consider the second contention raised by the learned counsel. 8. On the 4th of February, 1956 the plaintiff-respondents services were terminated by giving him one months notice. Thereafter the plaintiff-respondent filed an appeal against the said order. The appellate order was passed by the Commissioner, Gorakhpur Division on 23rd May, 1957. The appellate authority did not set aside the order but remanded the matter to the Sub-Divisional Officer for verifying with reference to the records whether the plaintiff-respondent was a probationary lekhpal as claimed by him. If he was, in fact, temporary as stated in the order, no further action was to be communicated and the papers were directed to be deposited. If, however, it was found that he was probationary lekhpal, the procedure under Rule 55 (3) of Civil Services (Classification, (Control and Appeal) Rules was direct-led to be followed. It is admitted that no further order was passed by the Sub-Divisional Officer. The suit was filed on 6th November, 1962. In the suit the only relief claimed by the plaintiff-respondent was for a declaration that the order dated 4th Feb. 1956 and the act of taking over charge from him on 30th April, 1956 was unconstitutional and ultra vires and void. The suit was filed on 6th November, 1962. In the suit the only relief claimed by the plaintiff-respondent was for a declaration that the order dated 4th Feb. 1956 and the act of taking over charge from him on 30th April, 1956 was unconstitutional and ultra vires and void. It may be noted that the plaintiff-respondent did not at all either challenge the order dated 23-5-1957 passed in appeal nor base the cause of action of the suit on the said order. The lower appellate court held that the period of limitation would start from the date of appellate order namely, 23-5-1957 and hence, held that the suit ` was filed within time. 9. In Jagdish Prasad Mathur v. State of U. P., AIR 1956 All 114 a Bench of this Hon'ble Court held that a suit for declaration of order of dismissal from service as illegal and ultra vires is governed by Art. 120 of the Limitation Act of 1908 (hereinafter referred to as the Limitation Act.) Article 120 of the Limitation Act is a residuary article. The period of limitation according to this article is six years from the date `when the right to sue accrues. The question for determination, therefore, in the present case is as to when the right to sue accrued to the plaintiff-respondent. 10. The words `right to sue means `right to seek relief, i. e., right to prosecute by law, to obtain relief by legal procedure. In other words a right to sue accrues when a cause of action arises. In Mst. Bolo v. Mst. Hoklan, AIR 1930 PC 270 , their Lordships of the Privy Council observed: "There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe the right by the defendant against whom the suit is instituted." 11. This principle laid down by the Privy Council was accepted by the Supreme Court in Gannon Dunkerley and Company v. Union of India, AIR 1970 SC 1433 . 12. The date when the right to sue would accrue will differ from case to case depending upon what has been pleaded in the plaint and against which order the relief has been sought. 13. 12. The date when the right to sue would accrue will differ from case to case depending upon what has been pleaded in the plaint and against which order the relief has been sought. 13. I have examined the plaint in the instant case and I find that the plaintiff-respondent has claimed a relief against the order of dismissal dated 4th February, 1956. He has claimed no relief against the appellate order. No cause of action is alleged to have arisen from the said appellate order. On the facts of this case, it is clear from the plaint that the cause of action which is pleaded and the right asserted in the suit is in respect of the order dated 4th Feb., 1956. In the circumstances, so far as the plaintiff-respondent is concerned, the right to sue accrued to him on 4th Feb., 1956 and the limitation started running from that date. The plaintiff-respondent is not at all aggrieved by the appellate order. As such, no question arises of commencement of the limitation from that date. 14. Learned counsel for the respondent has, however, urged that since the original order had merged into the appellate order, the limitation would start from the date of the appellate order. He has cited before me, AIR 1962 SC 1513 Madan Gopal Rongta v. the Secretary of the Govt, of Orissa. He has relied upon an unreported decision in Hansraj Singh v. State of U. P. in Second Apneal No. 2298 of 1968 decided by a single Bench of this Court on 13th Feb. 1975. Counsel for the appellant, has however, cited a decision of the Supreme Court Sitaram Goyal v. Municipal Board, Kanpur, AIR 1958 SC 1036 , which has considered this matter in detail. In this case of Supreme Court, the plaintiff Sita Ram Goyal was dismissed by a resolution of the Board dated 5th of March, 1951. On 19th March, 1951 the order of dismissal was communicated to him. The plaintiff appealed to the Government against the order on 7th April, 1951. The appeal was dismissed on 7th April, 1952 and the order was communicated to the plaintiff on 8th of April, 1952. On 8-12-1952 the suit was filed. On 19th March, 1951 the order of dismissal was communicated to him. The plaintiff appealed to the Government against the order on 7th April, 1951. The appeal was dismissed on 7th April, 1952 and the order was communicated to the plaintiff on 8th of April, 1952. On 8-12-1952 the suit was filed. The Supreme Court held that the period of limitation will commence from 5th of March, 1951 when the resolution of Municipal Board was passed against the plaintiff dismissing him from service and not from the date of the appellate order. The Supreme Court has observed as follows (at p. 1042): "The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under S. 326 of the Act." It was further observed (at p. 1039): "On a plain reading of the provision of S. 58 (1) and (2) we are of the opinion that this contention of the appellant is not tenable. One condition of the validity of the order of dismissal made by the Board is that special resolution in that behalf should be supported by not less than ?rd members constituting the Board. Once that condition is fulfilled, there is nothing more to be done by the. Board and the only right which then accrues to the officer thus dealt with by the Board is to appeal to the State Govt, within 30 days of the, communication of that order to him. He may choose to exercise his right of appeal or without adopting that procedure he may straightway challenge the validity of the resolution on any of the grounds available to him under law, e. g., the non-observance of' the principles of natural justice and the like. He may choose to exercise his right of appeal or without adopting that procedure he may straightway challenge the validity of the resolution on any of the grounds available to him under law, e. g., the non-observance of' the principles of natural justice and the like. There is nothing in the provisions of S. 58 (1) to prevent him from doing so and if without exercising this right of appeal which is given to him by the statute, he files a suit in the civil court to establish the ultra vires or the illegal character of such resolution it could not be urged that such a suit was premature, he not having exhausted the remedies given to him under the statute. The principle that superior court may not in their discretion issue prerogative writs unless the applicant has exhausted all his remedies under the special act does not apply to a suit." 15. The Supreme Court specifically rejected the argument raised that the order of dismissal could not be operative by its own force but would continue in abeyance until the decision of the appeal, once the appeal is filed by the employee against the Board within the period specified. 16. In the present case, the learned counsel has not been able to point out any provision which expressly bars the right of filing a suit after the order of dismissal was passed. In view of the principles laid down by the Supreme Court, I am of the opinion that the plaintiff-respondent had a cause of action to file the suit from the date of dismissal order, namely, 4th of April, 1956 and the period of limitation commenced from that date. Once the period of limitation commenced it was incumbent upon the plaintiff-respondent to have filed the suit within a period of six years from the said date. The suit not having been filed within six years from 4th Feb., 1956, is clearly barred by time. In the circumstances. I set aside the findings recorded by the lower appellate court on the question of limitation. 17. Learned counsel for the respondent has in the alternative contended that a suit would be governed by Art. 131 of Limitation Act of 1908 as the nature of his right was a recurring right and he could challenge the dismissal order within a period of 12 years. 17. Learned counsel for the respondent has in the alternative contended that a suit would be governed by Art. 131 of Limitation Act of 1908 as the nature of his right was a recurring right and he could challenge the dismissal order within a period of 12 years. In my opinion, this submission has no merit. The fact that the order of dismissal was passed on 4th of Feb. 1956, the period of limitation will commence from that very date and it is not of a periodically recurring right. The order became effective from that very date and the period of limitation started running against the plaintiff-respondent from that date. There is, thus, no force in this contention raised on behalf of the respondent. 18. In view of my finding that the suit was barred by time, I allow the appeal, set aside the judgment of the lower appellate court dated 2nd Sept., 1965 and restore that of the trial Court. In the circumstances of the case, parties are directed to bear their own costs.