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2009 DIGILAW 1328 (PNJ)

Bhim Singh v. Haryana State

2009-08-05

SABINA

body2009
JudgmentJudgment Sabina, J. 1. Plaintiff-Bhim Singh had filed a suit for declaration. Civil Judge (Junior Division), Gurgaon, vide judgment and decree dated 5.5.2007 dismissed the suit of the plaintiff being time barred. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by Additional District Judge, Gurgaon vide judgment and decree dated 27.8.2007. Hence, the present appeal. 2. The facts of the case as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment read as under :- "Brief facts of the present case are that the plaintiff/appellant filed a suit for declaration to the effect that the adverse remarks communicated to the plaintiff by the defendant No. 2 vide letter dated 7.8.1996 for the year 1995-96 are quite illegal, unlawful, ultra vires, arbitrary and against the principle of natural justice, equity and good conscience and are not binding on the plaintiff on the grounds mentioned in the plaint and are liable to be expunged and if during the pendency of the suit, the defendant No. 3 chances to reject the representation, the same may kindly be declared as illegal. It is inter alia alleged that the defendant No. 2 vide letter dated 7.8.1996 had communicated the following illegal and unlawful adverse remarks to the plaintiff for the year 1995-96 :- (i) Over all assessment : Average (ii) Integrity : Doubtful (iii) Adverse remarks on the record : Does not take interest in his work. It is inter alia alleged that the defendant No. 2 vide letter dated 7.8.1996 had communicated the following illegal and unlawful adverse remarks to the plaintiff for the year 1995-96 :- (i) Over all assessment : Average (ii) Integrity : Doubtful (iii) Adverse remarks on the record : Does not take interest in his work. and the above mentioned adverse remarks were quite hollow being based on surmises and conjectures and there was no reason and material in possession of the recording authority to record such like adverse remarks and the adverse remarks were against the well settled law of Honble Punjab and Haryana High court as laid down in RSJ 2002 Vol.II, pages 109 and 115 and Honble Supreme Court of India as laid down in SLR 1997 Vol.II, page 311 in which it has been mentioned that the recording authority must be fair and honest in the assessment of work and conduct of its employees and the remarks should be recorded in a constructive manner and it was submitted that no complaint was ever inquired into by the recording authority, no explanation of the plaintiff was ever called for and the perusal of the adverse remarks revealed beyond any shadow of doubt that the recording authority has not given the passing reference of the material on the basis of which such adverse remarks have been recorded and in the absence of the same, the plaintiff was deprived of to make any effective representation against these remarks and the plaintiff being aggrieved of the adverse remarks had made representation to defendant No. 3 within the time in the year 1997 and the same had not been disposed of by the defendant No. 3 and the delay in disposal of the same under the well settled law makes the adverse remarks as non-est and vitiated in the eyes of law and plaintiff requested the defendants several time orally but the defendants did not pay nay heed to his request. Hence, the present suit. Hence, the present suit. On notice, the defendants put in appearance and filed their written statement and tool some preliminary objections that the plaintiff has not locus standi and cause of action to file the suit and the plaintiff has concealed the real facts and has not come to the court with clean hands and the suit is not maintainable in the present form and the plaintiff has not availed the alternate remedy of appeal before the competent appellate authority so the suit is liable to be dismissed and the suit is hopelessly time barred. In reply on merits, the allegations were again controverted while submitting that the adverse remarks were recorded on the basis of his work and conduct during the period under report and since the work, conduct and performance of the plaintiff was not found satisfactory and up to the required norms and standard and the plaintiff had committed many irregularities and misappropriation during the year and so, the competent authority had rightly recorded adverse remarks against the plaintiff and the adverse remarks were conveyed to the plaintiff vide memo No. 14704 dated 7.8.1996 under proper receipt and it was denied that the adverse remarks were based on surmises and conjectures and there was sufficient material against the plaintiff and it was further submitted that the plaintiff committed fraud, amounting to Rs. 128/- on 13.5.1995 which was also recorded in his annual confidential report for the year 1995-96 and the case of fraud was proper and fair enquiry was conducted by the competent authority and the plaintiff was found guilty of the charges levelled against him and the competent authority imposed the punishment of stoppage of two increments without cumulative effect and suspension period was restricted for the period 17.5.1995 to 21.8.1995 to the emoluments already drawn by him vide memo No. 17110 dated 18.9.1997 and the plaintiff remained willful absent on 21.12.1995 and thus, 200 Kms were missed and thus, he has caused loss to Government and in this case also fair and proper enquiry was conducted and charges levelled against him were fully established by the Enquiry Officer and the competent authority passed the order of censure of his services and suspension period was also restricted to the subsistence allowance vide memo No. 10862/ECC dated 29.6.1998 and the aforesaid cases were noted specifically in the ACR which was recorded as doubtful in view of the rules and instructions applicable upon the plaintiff as per the settled law and it was further submitted that the annual confidential report was rightly recorded by the competent authority. While denying other allegations, the dismissal of the suit was prayed for." 3. On the pleadings of the parties, trial court framed the following issues :- "(1) Whether the adverse remarks communicated to the plaintiff by defendant No. 2 vide his letter No. 14707 dated 7.8.1996 for the year 1995-96 are quite illegal, unlawful, ultra vires, arbitrary, against the principle of natural justice, equity and good conscience and not binding on the plaintiff on the grounds mentioned in the plaint ? OPP (2) Whether plaintiff has no locus standi and cause of action to file the present suit ? OPD (3) Whether the plaintiff has concealed the true and material facts from the court ? OPD (4) Whether the suit is not6 maintainable ? OPD (5) Whether the suit is time barred ? OPD (6) Whether the plaintiff has not availed the alternate remedy of Appeal before the competent appellate authority so the suit is liable to be dismissed ? OPD (7) Relief." 4. After hearing learned counsel for the appellant, I am of the opinion that no ground for interference by this Court is made out. 5. OPD (6) Whether the plaintiff has not availed the alternate remedy of Appeal before the competent appellate authority so the suit is liable to be dismissed ? OPD (7) Relief." 4. After hearing learned counsel for the appellant, I am of the opinion that no ground for interference by this Court is made out. 5. Plaintiff had filed a suit challenging the adverse remarks communicated to him vide letter dated 7.8.1996 for the year 1995-96. Plaintiff instituted the suit on 7.11.2005. Plaintiff could challenge the adverse remarks communicated to him within a period of three years. However, the suit was filed by the plaintiff after a long delay. 6. Honble the Apex Court in the case of The State of Punjab and others v. Gurdev Singh Ashok Kumar 1991(5) SLR 1 has held as under:- " 4. First of all, to say that the suit is not governed by the law of Limitation runs afoul of our Limitation Act. The statute of limitation was intended to provide a time limit for all suits conceivable. Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of Limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limitation has not been set up as a defence. Section 2 (J) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal of application. Section 2 (J) also defines "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act. The Courts function on the presentation of plaint is simply to examine whether, on the assumed facts, the plaintiff is within time. The court has to find out "when the right to sue" accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act 1908) is a residuary Article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. The residuary article is applicable to every variety of suits not otherwise provided for. Article 113 (corresponding to Article 120 of the Act 1908) is a residuary Article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under Article 120 it was six years which has been reduced to three years under Article 113. According to the third column in Article 113, time commences to run when the right to sue accrues. The words " right to sue" ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted (see : (i) Mt. Bole v. Mt. Koklam and others(AIR 1930 P.C. 270) and (ii) Gannon Dunkerley and Co. v. The Union of India (AIR 1970 S.C. 1433). 11. The Allahabad High Court in Jagdish Prasad Mathur and ors. v. United Provinces Government (AIR 1956 All 114) has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void, is governed by Article 120 of the Limitation Act. A similar view has been taken by Oudh Chief Court in Abdul Vakil v. Secretary of State and anr. (AIR 1943 Oudh 368). That in our opinion is the correct view to be taken. A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act. The decision to the contrary taken by the Punjab & Haryana High Court in these and other cases (State of Punjab v. Ajit Singh (1988(1) SLR 96) and (ii) State of Punjab v. Ram Singh (1986(3) SLR 379) is not correct and stands overruled." 7. Courts below had rightly held that the suit of the plaintiff was time barred. 8. No substantial question of law arises in this appeal for consideration. Accordingly, the appeal is dismissed.