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1999 DIGILAW 1420 (SC)

R. R. Naidu v. State Of M. P.

1999-11-18

A.P.MISRA, J.JAGANNADHA RAO

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(1) LEAVE granted. (2) THE appellant was a Clerk working in the Office of the District Judge at Bilaspur who was removed from service on 10-6-1961. A departmental appeal filed by him was dismissed on 16-12-1968 by the Registrar of the High Court of Madhya Pradesh at Jabalpur. He gave a notice of suit to the State of Madhya Pradesh under Section 80 of the Code of Civil Procedure on 29-5-1971. He filed a suit on 13-9-1971 impleading the State of Madhya Pradesh as the sole defendant. The proceedings went up to the High Court and the matter was remanded by the High Court directing that the District Judge and the Registrar of the Madhya Pradesh High Court be made parties. Thereafter, the appellant impleaded the District Judge and the Registrar as parties but objection was taken on the ground of limitation. (3) THE trial courts finding was that the order of removal was bad in law but the suit was barred by limitation as against the District Judge and the Registrar. The plaintiff preferred an appeal to the appellate court. The appellate court while confirming the findings on the question of limitation reversed the finding of the trial Judge on merits as to the validity of the removal order and held that it was valid. The plaintiff preferred the second appeal to the High Court. The High Court confirmed the findings in relation to the limitation but again reversed the findings of the first appellate court and held that the order of removal was one in the nature of punishment and was bad for violation of natural justice. The High Court, therefore, dismissed the appeal. (4) IN this appeal, we have heard counsel on both sides. In our view, if there is delay in impleading the District Judge and the Registrar of the High Court it can be condoned under the proviso of sub-section (1) of Section 21 of the Limitation Act. The plaintiff had bona fide not impleaded the District Judge and the Registrar but by mistake had impleaded the State of Madhya Pradesh when he filed the suit in 1971. We condone the delay as being bona fide. The plaintiff had bona fide not impleaded the District Judge and the Registrar but by mistake had impleaded the State of Madhya Pradesh when he filed the suit in 1971. We condone the delay as being bona fide. (5) ONCE the suit is held to be in time against the District Judge and the Registrar, the next question is as to whether the High Court is right in reversing the finding of the appellate court and in holding that the order of removal is bad in law. (6) LEARNED counsel for the appellant-plaintiff contended that the finding of the High Court has become final inasmuch as the respondents have not preferred any independent appeal. We are of the view that the respondents can, without filing an appeal against the adverse finding, attack it vide Ravinder Kumar Sharma v. State of Assam. (7) SO far as the finding of the appellate court on the question of validity of the removal order was concerned it was necessary for the High Court to call for the original record relating to the removal of the plaintiff and find out the circumstances immediately preceding the order of the removal to find out whether the removal was based upon any categorical findings arrived at in order to find out his guilt. This should have been done under Order 41 Rule 27(1 )(c) [sic (b)] CPC as a requirement of the Court for enabling it to pronounce a satisfactory judgment (see K. Venkataramiah v. A. Seetharama Reddy). (8) WE are of the view that the High Court could not have given any finding as to the punitive nature of the order without looking into the record. In this connection the judgments of this Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. and Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences contain a review of the case-law on the subject as to when allegations can be said to be "motive" or "foundation" in a termination simpliciter. The judgments show that it is necessary to look into the file to know the background and whether any finding as to guilt is recorded. (9) THE finding of the High Court is therefore, set aside and the matter is remanded to the High Court. The judgments show that it is necessary to look into the file to know the background and whether any finding as to guilt is recorded. (9) THE finding of the High Court is therefore, set aside and the matter is remanded to the High Court. It will now be for the High Court to call for the record from the administrative side of the Court of the District Judge or from the Office of the Registrar of the High Court and examine whether the allegations against the appellant were the foundation for the removal or whether they were only the motive. For the aforesaid reasons while reversing the order of the High Court on the question of limitation, we remit the matter to the High Court for decision on the question as to whether the order of removal was punitive or not. It should not be understood that we have expressed any opinion on the merits relating to the validity of the order of removal. (10) THE appeal is allowed to the extent above. There shall be no order as to costs.