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Rajasthan High Court · body

2007 DIGILAW 1460 (RAJ)

Dr. S. P. Mishra v. N. C. E. R. T

2007-08-02

G.S.SARRAF

body2007
Judgment G.S. Sarraf, J.—This is an appeal of the plaintiff against the dismissal of his suit with costs by the learned Additional District Judge No. 1, Ajmer by judgment and decree dt. 03.02.1995. 2. The facts as disclosed in the plaint may be summarized thus. The plaintiff was posted as Lecturer (Education) in the Regional College of Education, Ajmer in March, 1975. On 19/25.03.1975, the plaintiff’s application for the post of Teacher Trainer in Training College in Nigeria was forwarded by the defendant No.1. By order dated 17.11.1975, the defendant No. 1 accorded sanction for deputation of the plaintiff for a period of three years for assignment as Senior Education Officer in Nigeria from the date of his relieving from the post of Lecturer on various terms and conditions. The plaintiff was relieved of his duties from 07.08.1976 and thereafter the plaintiff joined as Senior Education Officer in Nigeria on 14.08.1976. The plaintiff was promoted as Principal Education Officer w.e.f. Sept., 1978. On receiving the letter dated 16.07.1979 of the Principal of the College, the plaintiff’s period of deputation was extended upto 07.08.1981 with the concurrence of the Government of India. By letter dated 27.01.1981, the Principal, Federal Advanced Teachers College, Nigeria informed the Secretary to the Government of India that looking to the qualifications of the plaiiltiff the period of deputation of the plaintiff be extended for two more years. At this the defendant No. 2 by letter dated 2/4.4.1981 informed the plaintiff that he would be completing five years deputation period in Nigeria on 07.08.1981 therefore, the plaintiff must report for duty back in the Regional College of Education, Ajmer after completing the present term of deputation as no further extension would be granted to him. By its letter dated 14.07.1981 the Federal Ministry of Education Nigeria requested the Secretary to the Government of India for further extension of the period of deputation of the plaintiff for two years in view of the fact that the services of the plaintiff were very much needed for the development of the Chemistry Department of the Institution. By its letter dated 14.07.1981 the Federal Ministry of Education Nigeria requested the Secretary to the Government of India for further extension of the period of deputation of the plaintiff for two years in view of the fact that the services of the plaintiff were very much needed for the development of the Chemistry Department of the Institution. By letter dated 08.08.1991, the plaintiff informed the defendants that he was not being relieved of his duties, therefore, considering the request of the Nigeria Government sympathetically his deputation might be extended for a period of two years, but if due to administrative difficulties, the extension was not possible then his letter might be treated as his resignation from the service. The plaintiff did not receive any response till he stayed at Ajmer. The defendants neither treated nor accepted the letter dated 08.08.1981 of the plaintiff as his resignation and after almost two years vide letter dated 17.06.1983 informed the plaintiff that the deputation period of the plaintiff was already over on 07.08.1981 and deputation beyond five years was not permissible, therefore, the plaintiff must return to his duty within fifteen days from the date of receiving the letter or send his unconditional resignation from the post held by him failing which disciplinary proceedings would be initiated against him. The plaintiff was not in a position to assume the charge of his office at Ajmer unless he was relieved by the Government of Nigeria but the resignation dated 8.8.1981 of the plaintiff was wrongly and illegally accepted by the defendant No. 1 by order dated 4/5.4.1984. Aggrieved by the aforesaid order, the plaintiff filed an appeal before the defendants on 26.10.1984 and sent a reminder on 18.01.1985 but the defendants did not send any reply to the plaintiff. By letter dated 02.05.1985 the College of Nigeria informed the defendant No. 1 that the plaintiff would be completing his period of deputation under the contract on 13.08.1985 and he had been instructed to report back to his parent organization on 23.10.1985. The plaintiff by letter dated 09.10.1985 requested the defendant No. 1 to allow him 50 to resume his duty w.e.f. 23.10.1985 and then repeated the request on 20.10.1985 and 24.10.1985 but the defendant did not accede to his request. The plaintiff by letter dated 09.10.1985 requested the defendant No. 1 to allow him 50 to resume his duty w.e.f. 23.10.1985 and then repeated the request on 20.10.1985 and 24.10.1985 but the defendant did not accede to his request. However, the plaintiff received a memo dated 29/30.10.1985 whereby he was informed that his resignation from the post of Lecturer had already been accepted w.e.f. 08.08.1981 and, therefore, there was no ground for re-consideration of his request. The plaintiff, therefore, filed a suit and prayed that the order dated 29/30.10.1985 of the defendant No. 1 be declared void and the defendants be directed to reinstate the plaintiff with back wages and continuity in service and he be given benefit of seniority and promotions etc. 3. According to the written statement filed by the defendants the deputation period of five years expired on 07.08.1981 and it was necessary for the plaintiff to assume charge in his parent department on 08.08.1981. The deputation period could not be extended further as per the request of the Government of Nigeria. By letter dated 17.06.1983 the plaintiff was given an opportunity to join within fifteen days but when the plaintiff did not join then by order dated 04.04.1984 his resignation dated 08.08.1981 was accepted and thereafter there was no significance of any appeal or correspondence against that order and as a matter of fact, the defendants never received any appeal dated 26.10.1984 or of another date. According to the written statement the cause of action accrued to the plaintiff when his letter of resignation was accepted by letter dated 04.04.1984 and, therefore, the suit is barred by the law of limitation and the time taken in prosecuting his legal remedy in other courts not being bona-fide cannot be condoned under Section 14 of the Limitation Act. According to the written statement, the writ petitions filed in the Delhi High Court and the Apex Court with the same subject matter were dismissed and therefore, this suit is barred on the principles of res-judicata. 4. According to the written statement, the writ petitions filed in the Delhi High Court and the Apex Court with the same subject matter were dismissed and therefore, this suit is barred on the principles of res-judicata. 4. Learned trial Court framed the following Issues: 1- D;k izfroknh&1 }kjk fnukad 29@30-10-1985 dks oknh dk lsok ls R;kxi= Lohdkj djus ds vknsÓk ds fo:¼ izLrqr vihy fujLr djus ds ckjs esa ikfjr vknsÓk] okni= ds pj.k Øekad 13 esa of.kZr dkj.kksa ds vk/kkj ij voS/k ,oa ÓkwU; gS\ 2- D;k ;g okn ifjlhek vof/k ds Hkhrj izLrqr fd;k x;k gS vkSj oknh /kkjk 14 ifjlhek vf/kfu;e ds vUrZxr ykHk iznku djus dk vf/kdkjh gS\ 3- D;k okn iwoZ fu.khZr fo"k; ds fl¼kar ds vk/kkj ij oftZr gS\ 4- D;k izfroknh 1 Hkkjrh; lafo/kku ds vuqPNsn 12 ds vUrZxr jkT; dh ifjHkk"kk esa ugha vkus ds dkj.k] oknh dk ;g okn izfroknhx.k ds fo:¼ fujLr fd;s tkus ;ksX; gS\ 5- vuqrks"k\ 5. Since, Issues Nos. 2 and 3 were purely legal, therefore, before recording the evidence on any other Issues the learned trial Court heard the parties on Issues Nos. 2 and 3 and, after deciding both the Issues against the plaintiff dismissed the suit of the plaintiff with costs. 6. Aggrieved by this judgment, the plaintiff has preferred this appeal. 7. Learned counsel for the appellant has contended that the trial Court has committed an error since apparently the writ petitions filed by the appellant were dismissed in limine and they could not operate as res-judicata since they were not decided on merits deciding any Issue arising in the litigation. As regards the limitation, the learned counsel for the appellant has submitted that the plaintiff is entitled to exclude the period spent in prosecuting the legal remedies in other Courts. He has argued that an enforcement of right should not be denied only on the technical ground of delay because unless a liberal view is taken gross injustice would be caused to the plaintiff. In this case according to him, the period of limitation began to run from 29/30.10.1985 by the letter of the above date of the defendants because in this letter the order dated 04/05.04.1984 had merged and thereafter if the period spent in prosecuting the remedies in other Courts is condoned then the suit of the plaintiff is within limitation. In this case according to him, the period of limitation began to run from 29/30.10.1985 by the letter of the above date of the defendants because in this letter the order dated 04/05.04.1984 had merged and thereafter if the period spent in prosecuting the remedies in other Courts is condoned then the suit of the plaintiff is within limitation. He has placed reliance on 1998(6) SCC 200 , 1996(6) SCC 100 and AIR 1975 SC 824 . 8. learned counsel for the respondents has argued that on the same subject matter the writ petition filed by the plaintiff in Delhi High Court and the S.L.P. in the Apex Court and thereafter the writ petition filed under Article 32 of the Constitution of India before the Apex Court and its review petition have been dismissed, therefore, another writ plaintiff or civil suit would not be maintainable. He has submitted that the limitation in this case began to run by the letter of the defendants dated on 04/05.04.1984 and this letter did not merge in the order dated 29/30.10.1985 because the memo dated 29/30.10.1985 is a mere information to the plaintiff that his resignation had already been accepted w.e.f. 08.08.1981. He has submitted that it is not on record that when the writ petitions were filed by the plaintiff in various courts as no copies of these writ petitions have been filed by him and as a matter of fact, the plaintiff has not prosecuted any remedy between 1986 to 1988 and the suit filed by the plaintiff in January, 1991 is clearly barred by limitation. 9. I will first deal with Issue No. 3 which relates to the principle of res-judicata. 10. The Central Administrative Tribunal by its order dated 21.01.1986 allowed the plaintiff to withdraw his application because that could not be entertained by the Tribunal. Thereafter the plaintiff filed a writ petition in the Delhi High Court which was dismissed on 13.03.1986 by one word order. Dismissed. The SLP filed by the plaintiff against this order was decided by the Apex Court on 08.09.1986 and the following order was passed, Special leave petition is dismissed. The plaintiff then filed a writ petition filed under Article 32 of the Constitution of India which filed by the plaintiff was dismissed by the Apex Court on 26.03.1990 and the order was as under: The writ petition is dismissed. The plaintiff then filed a writ petition filed under Article 32 of the Constitution of India which filed by the plaintiff was dismissed by the Apex Court on 26.03.1990 and the order was as under: The writ petition is dismissed. The review petition filed by the plaintiff against the above order was dismissed by the Apex Court in August, 1990 and the order passed was as under : We have carefully gone through the Review Petition and the connected papers. We find no merit in the Review Petition, which is accordingly dismissed. No doubt in the order passed by the Apex Court there is mention of merit but the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared. 11. The question is as to whether the writ petitions, which were dismissed in limine by non-speaking orders operate as res-judicata to the maintainability of the present suit. 12. In the case of Daryao & others vs. State of U.P. & Ors., AIR 1961 SC 1457 the Hon’ble Supreme Court has held that “If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res-judicata. It is true, that prima facie dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res-judicata against a similar petition filed under Article 32. In the case of The Workmen of Cochin Port Trust vs. The Board of Trustees, AIR 1978 SC 1283 , the Apex Court has held that “Of-course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly, even if one writ petition is dismissed in limine by a non-speaking one word order “dismissed” another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the thresh-hold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceedings will not be barred on the principles of res-judicata. In the case of Pujari Bai vs. Madan Gopal, 1989(3) SCC 433 the principle has been repeated that when a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res-judicata but not a dismissal in limine. 13. In the instant case since earlier petitions have not been decided on merits with a speaking order the provisions of Section 11 of the Civil Procedure Code are not attracted. 14. In view of the above discussion I hold that the suit of the plaintiff is not barred by principle of res-judicata. 15. I, therefore, set-aside the finding of the trial Court on Issue No.3 and Issue No.3 is decided in favour of the plaintiff. 16. Now, I will deal with Issue No.2. 17. The present suit has been filed by the plaintiff on 08.01.1991. The resignation of the plaintiff dated 08.08.1981 was never withdrawn by him and it was accepted by the defendant No. 1 by order dated 4/5.4.1984. The memo dated 29/30.10.1985 is merely an information to the plaintiff that his resignation had already been accepted w.e.f. 08.08.1981 and, therefore, the order dated 04.04.1984 did not and could not merge in the memo dated 29/30.10.1985. Thus, the limitation began to run from 4/5.4.1984. The Court takes into account only the actual days, when proceedings were pending in the Court and were being actually prosecuted in that Court but the plaintiff has not filed copies of application, S.L.P. and writ petitions. Thus, the limitation began to run from 4/5.4.1984. The Court takes into account only the actual days, when proceedings were pending in the Court and were being actually prosecuted in that Court but the plaintiff has not filed copies of application, S.L.P. and writ petitions. It is, therefore, impossible to correctly assess the period which the plaintiff took in pursuing his remedy in other Courts. It is also clear that the SLP of the plaintiff was dismissed by the Hon’ble Supreme Court by order dated 18.09.1986 and thereafter he did not take any recourse to any proceeding before 1988. It is very clear that the period covered by bonafide litigation is exempted but forming the intervals between these successive petitions, when the plaintiff merely stood by allowing the limitation to run, could not be exempted. 18. Section 14(1) of the Limitation Act, runs as under : “In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceedings relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.” For attracting Section 14(1) it is an indispensable requirement that the Court in which the prior civil proceedings were pending must have been unable to entertain it on account of defect of jurisdiction or other cause of like nature. Section 14 does not apply where the Court merely declines to give relief or dismisses the writ petition in limine. 19. In this case the Courts have declined to give relief to the plaintiff and have dismissed the writ petitions filed by him in limine and there is absolutely nothing on record to show that the Courts on account of defect of jurisdiction or other cause of like nature were unable to entertain them. The plaintiff thus cannot get the benefit of Section 14 of the Limitation Act and the suit is clearly barred by limitation. 20. I, therefore, affirm and approve the finding of the trial Court on Issue No.2. 21. The plaintiff’s appeal deserves to be dismissed as the decision of trial Court on Issue No.2 has been affirmed by this Court. 22. 20. I, therefore, affirm and approve the finding of the trial Court on Issue No.2. 21. The plaintiff’s appeal deserves to be dismissed as the decision of trial Court on Issue No.2 has been affirmed by this Court. 22. The appeal, therefore, fails and is hereby dismissed with costs.