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2018 DIGILAW 2529 (ALL)

Union of India v. Avadhesh Pratap Singh

2018-12-12

JASPREET SINGH

body2018
JUDGMENT : JASPREET SINGH, J. 1. The second appeal assails the judgment and decree passed by the Court of Additional District Judge, Raebareli in Regular Civil Appeal No.21 of 1983, wherein the appeal of the defendant-appellant was dismissed affirming the judgment and decree dated 21.01.1983 passed by Munsif, Raebareli in R.S. No.190 of 1982 (Avadhesh Pratap Singh vs. Union of India & Ors.), whereby the suit of the plaintiff-respondent was decreed. 2. This Court, by means of an order dated 28.11.2017 noted that though the appeal was admitted vide order dated 03.09.1985. However, substantial questions of law were not formulated. Thus, the Court went on to formulate the following substantial questions of law, which are being reproduced as under:- "1. Whether the learned trial court has acted illegally and in excess of jurisdiction vested in entertaining and decreeing the plaintiff-respondent's suit which was barred by time? 2. Whether the learned trial court has illegally and wrongfully given the benefit of exclusion of certain period namely 29.4.1977 to 14.11.1977 & 23.7.1980 to 26.8.1982 while calculating the period of limitation and maintainability of suit? 3. Whether the learned trial court has usurped the jurisdiction not vested in it by entertaining and decreeing the plaintiff-respondents suit?" 3. Heard learned counsel for the appellant Shri Raj Kumar Singh and since none responded for the respondent, hence, the appeal was heard ex-parte in terms of Order XLI, Rule 17, Sub-rule (2) CPC. 4. Brief facts leading to the above appeal are being noticed hereinafter. 5. Avadhesh Pratap Singh, the plaintiff-respondent instituted a suit for declaration on the ground that he was appointed as Extra-Departmental Mail Peon, Postal Department, Raebareli and was posted in Tilenda Branch, Post Office on 22.02.1965, where he worked up till 14.08.1976. The Inspector of Post Office, North District, Raebareli put the plaintiff-respondent off duty since 14.08.1976. Thereafter, he was served with a charge-sheet under Rule 8 of the Posts and Telegraphs Extra Departmental (Conduct and Service) Rules, 1964 dated 04.02.1977 whereby the plaintiff-respondent was asked to submit his explanation within ten days, which was done by plaintiff-respondent on 12.02.1977. Thereafter, the plaintiff-respondent was dismissed from his services vide order dated 29.04.1977 against which the plaintiff-respondent preferred an appeal before the Inspector, Superintendent of Post Office, Rarebareli and his appeal was also rejected vide order dated 13.07.1977. Thereafter, the plaintiff-respondent was dismissed from his services vide order dated 29.04.1977 against which the plaintiff-respondent preferred an appeal before the Inspector, Superintendent of Post Office, Rarebareli and his appeal was also rejected vide order dated 13.07.1977. Thereafter, the plaintiff-respondent submitted a fresh representation before the Superintendent of Post Office on 02.11.1977 for review of the order and later on 14.11.1977, the review petition of the aforesaid plaintiff-respondent was also rejected. 6. It was pleaded by the plaintiff-respondent that on 23.07.1980, he further submitted a representation to the Director of Postal Services, Lucknow, however, no action was taken. Thereafter, the plaintiff-respondent served notice under Section 80 CPC to the defendant-appellant on 24.09.1980 and thereafter a suit was filed on 31.01.1981, which was withdrawn on 21.08.1982 and a fresh suit was filed on 31.08.1982 which was R.S. No.190 of 1982. 7. The defendant-appellants contested the suit by filing the written statement and clearly pleaded that there was no breach regarding the Rules and Regulations applicable to the Extra Departmental Agents and thus all the allegations of the plaintiff-respondent for violation of the Rules was denied. In paragraph-12 of its written statement, a specific plea regarding the limitation was raised and it was pleaded that the suit was barred by time and more over any effort of the plaintiff-respondent to file repeated representation would not help in extending the time. Accordingly, it was pleaded that the suit was time barred and no relief could be granted to the plaintiff-respondent. 8. The Court of the Munsif, Raebareli after due consideration of the respective case of the parties, vide its judgment and decree dated 21.01.1983 held that the suit of the plaintiff-respondent was within time and that the order terminating the services of the plaintiff was without jurisdiction and accordingly allowed the suit. 9. The defendant-appellants preferred a regular civil appeal before the Additional District Judge, Raebareli, registered as Regular Civil Appeal No.21 of 1983. The first appellate Court also after considering the material on record upheld the findings of the trial court holding that the suit of the plaintiff-respondent was within time and the order dismissing the services of the plaintiff-respondent dated 29.04.1977 was bad and the appeal was dismissed. 10. Being aggrieved against the aforesaid, the appellants assailed the two judgments and decree before this Court by means of the present second appeal. 11. 10. Being aggrieved against the aforesaid, the appellants assailed the two judgments and decree before this Court by means of the present second appeal. 11. While pressing the substantial questions of law No.1 and 2 which are interconnected, it has been argued by the learned counsel for the appellant that apparently the suit was barred by virtue of Article 58 of the Indian Limitation Act, 1963. Elaborating his arguments, learned counsel for the appellant stated that the plaintiff-respondent was appointed as an Extra Department Mail Peon, who was served with a charge-sheet on 04.02.1977 and vide order dated 29.04.1977 his services were terminated. The plaintiff-respondent preferred an appeal in accordance with the Posts and Telegraphs Extra Departmental (Conduct and Service) Rules, 1964, which was also dismissed by the competent authority on 13.07.1977. Thereafter, the plaintiff-respondent had also preferred a review which was also rejected on 14.11.1977 and thus it would be seen that 14.11.1977 would be starting point of limitation to assail the order dated 29.04.1977 in terms of Article 58 of the India Limitation Act and since, the suit was instituted on 31.08.1982 beyond three years from 14.11.1977 hence, prima-facie, the suit was barred by limitation. 12. It was urged that two courts below have committed an error in not only ignoring the aforesaid aspect of the matter but has wrongly construed the pleadings and has excluded the period consumed by the plaintiff-respondent in making unnecessary representations as well as the period which the plaintiff consumed initially by filing a suit which was withdrawn and thus this period could not be excluded. Accordingly, the findings arrived at by the two courts below are erroneous. 13. It was also urged by the learned counsel for the appellant that since the appellant was an employee of the Postal and Telegraph Department, hence, after exhausting the remedy as provided under the Service Rules, it was open for the plaintiff-respondent for filing a petition before the Services Tribunal or before the Hon'ble High Court and the civil suit was not maintainable thus, the civil court has usurped the jurisdiction not vested in it by entertaining the suit of the plaintiff-respondent. 14. 14. The learned trial court while considering the issue of limitation held that though the starting point of limitation was 14.11.1977 that is the date on which the review of the plaintiff-respondent was rejected however, the time period consumed between 23.07.1980 till 31.01.1981 that is the date when the first suit was instituted by the plaintiff-respondent shall be excluded and thus if the aforesaid period is excluded then the suit of the plaintiff-respondent will be within three years. 15. The first appellate Court also affirmed the aforesaid findings and the appeal of the defendant was rejected. 16. It is in this backdrop that the findings of the trial court and the first appellate Court have been assailed before this Court. 17. Learned counsel for the appellant has relied upon the decision of the Hon'ble Apex Court, reported in (1989) 4 SCC Page 582 -S.S. Rathore vs. State of Madhya Pradesh and(2006) 12 SCC Page 09 -State of Punjab and another vs. Balkaran Singh. Relying upon the aforesaid judgments, learned counsel for the appellant has impressed upon the Court that in terms of Article 58 of the Limitation Act, the starting point of limitation is to be construed as the date when the remedies available to the said employee under the relevant Service Rules is disposed of. 18. The submission of the learned counsel for the appellant is that since the order of dismissal is dated 29.04.1977 and the departmental appeal and review availed by the plaintiff-respondent also came to be rejected on 14.11.1977, thus this date would be the relevant date for reckoning the date of commencement for cause of action and the suit was filed on 31.08.1982, accordingly, the suit was barred. 19. After having heard learned counsel for the appellant, the Court is of the opinion that the submission of the learned counsel for the appellant has force. 20. From the perusal of the plaint, it is an undisputed fact that the plaintiff-respondent was appointed as Extra Departmental Mail Peon. It is also admitted to the plaintiff that he was served with a charge-sheet under Rule 8 of the Posts and Telegraphs Extra Departmental (Conduct and Service) Rules, 1964 to which he had submitted his explanation. 20. From the perusal of the plaint, it is an undisputed fact that the plaintiff-respondent was appointed as Extra Departmental Mail Peon. It is also admitted to the plaintiff that he was served with a charge-sheet under Rule 8 of the Posts and Telegraphs Extra Departmental (Conduct and Service) Rules, 1964 to which he had submitted his explanation. Later on, his services came to be terminated by means of an order dated 29.04.1977 against which the plaintiff-respondent preferred a departmental appeal which was also rejected on 13.07.1977 and further a review was filed which also came to be dismissed on 14.11.1977. 21. From the above factual matrix, it is clear that the cause of action first accrued to the plaintiff-respondent on 14.11.1977 when the plaintiff-respondent had exhausted his remedy under the Departmental Rules. 22. However, a question that requires consideration is whether in the facts and circumstances the time period consumed by the plaintiff-respondent in moving fresh representation (non-statutory) would grant the benefit to the plaintiff-respondent to seek an exclusion of time while computing the limitation for filing the suit. 23. It will be apposite to note that Section 3 of the Indian Limitation Act provides a mandate that every suit, appeal or an application made after the prescribed period shall be dismissed although limitation made not be set up as a defence. Thus, it would be seen that irrespective of the fact that whether the plea of limitation is taken as a defence or not, it is incumbent upon the court to look into the matter and see whether a suit or the appeal or application as the case may be is within the limitation or not ? 24. It is equally settled that once the time begins to run no subsequent disability or inability stops the same. This proposition is contained in Section 9 of the Indian Limitation Act. 25. Exclusion of time has been provided under Section 14 of the Indian Limitation Act which provides for exclusion of time where the plaintiff has been prosecuting another civil proceeding with due diligence in a Court without jurisdiction. 26. This proposition is contained in Section 9 of the Indian Limitation Act. 25. Exclusion of time has been provided under Section 14 of the Indian Limitation Act which provides for exclusion of time where the plaintiff has been prosecuting another civil proceeding with due diligence in a Court without jurisdiction. 26. The two courts while granting the exclusion of time to the plaintiff-respondent have erred by misconstruing the mandate of Section 14 of the Indian Limitation Act and has also not considered whether the time consumed by the plaintiff-respondent in making a non statutory representation could have been excluded or not in the first place. 27. The answer to the aforesaid question has been succinctly answered by the Hon'ble Apex Court in the case of S.S. Rathore vs. State of Madhya Pradesh(supra), in which, it has been observed as under: "20. We are of the view that the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though the remedy has been availed of, a six months' period from the date of preferring of the appeal or making of the representation shall be taken to be the date when cause of action shall be taken to have first arisen. We, however, make it clear that this principle may not be applicable when the remedy availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle. 22. It is proper that the position in such cases should be uniform. Therefore, in every such case only when the appeal or representation provided by law is disposed of, cause of action shall first accrue and where such order is not made, on the expiry of six months from the date when the appeal was-filed or representation was made, the right to sue shall first accrue." 28. This judgment of the Hon'ble Apex Court rendered by Seven Hon'ble Judges has clearly held that the original cause of action to assail an order would arise when the remedy as provided under the Departmental Rules have been exhausted. However, repeated unsuccessful representation not provided by law will not govern this principle. This judgment of the Hon'ble Apex Court rendered by Seven Hon'ble Judges has clearly held that the original cause of action to assail an order would arise when the remedy as provided under the Departmental Rules have been exhausted. However, repeated unsuccessful representation not provided by law will not govern this principle. The aforesaid judgment has also been referred and relied upon in a subsequent judgment of State of Punjab vs. Balkaran Singh (supra). 29. Thus, the findings of the two courts below that time consumed by the plaintiff-respondent in filing the fresh representation from 23.07.1980 till 31.01.1981 i.e. when the first suit was filed, is to be excluded, is erroneous and in light of the categorical pronouncements of the Hon'ble Apex Court, the representation dated 23.07.1980 being non-statutory would not confer any benefit to the plaintiff-respondent in getting any benefit for exclusion of time. 30. This matter can be seen from another perspective as well inasmuch as dismissal of the review of the plaintiff-respondent on 14.11.1977, if at all he moved the representation dated 23.07.1980 even then there is no explanation or reason as to what prevented the plaintiff-respondent to wait from 14.11.1977 till 23.07.1980. Thus, as indicated above, in view of Section 9 of the Indian Limitation Act, once the limitation started to run, there was no occasion for the same to have stopped and merely by making or taking recourse to non-statutory representation it would not grant any benefit to the plaintiff-respondent for excluding time as the limitation would not stop. 31. The two courts below have further erred in not considering the mandate of Section 14 inasmuch as exclusion of time can only be granted to a party if it is contesting a suit in a court without jurisdiction. However, it is not the case in the present case. The initial suit was filed before the civil court on 31.01.1981 and was withdrawn by the plaintiff-respondent on 21.08.1982. The withdrawal of suit in terms of Order 23 Rule 1 CPC is on the own volition of the plaintiff-respondent and so he is equally bound by the rigours of Rule 2 of Order 23 CPC which provides that any fresh suit which is instituted on the permission granted under Rule (1) would bind the plaintiff-respondent insofar as the limitation is concerned. Thus, the conjoint effect is that even if the plaintiff withdrew the first suit he would not be entitled to any benefit so far as the limitation is concerned as the first suit itself was instituted on 31.01.1981 beyond three years from 14.11.1977. 32. The exclusion of time granted by the two courts to the plaintiff-respondent is contrary to the settled legal principles. The ingredients regarding the applicability of Section 14 of the Limitation Act has been considered by the Hon'ble Apex Court in the case of Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and others, reported in (2008) 7 SCC Page 169. The relevant portion of the aforesaid judgment is being reproduced hereunder:- "21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a Court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a Court." 33. Also from the perusal of the notice given by the plaintiff-respondent under Section 80 CPC it indicates that the plaintiff-respondent was aware of the fact that the cause of action for the suit and the relief claimed commenced on 14.11.1977, therefore, subsequent effort to claim the benefit of Section 14 for exclusion of time does not appear to be bonafide. Moreover, as mentioned above, the ingredients of Section 14 indicate that both the prior and the subsequent proceedings must be before a court and prosecuted by the same party with due diligence and in good faith and the failure of the prior proceedings must be due to defects of jurisdiction or other cause of like nature. 34. The ingredient as mentioned above are wanting in the present case inasmuch as the prior suit filed by the plaintiff-respondent was withdrawn by him on his own volition and was not on account of any defect of jurisdiction. 34. The ingredient as mentioned above are wanting in the present case inasmuch as the prior suit filed by the plaintiff-respondent was withdrawn by him on his own volition and was not on account of any defect of jurisdiction. Moreover, the exclusion of time granted for the period when the representation of the plaintiff-respondent remained pending before the Departmental Authority also cannot be granted inasmuch as for attracting Section 14 of the Limitation Act, the two proceedings must be in a Court. The representation (non-statutory) before the Departmental Authority and the fact that such authority is not a Court, does not come to the help of the plaintiff-respondent to claim the benefit of Section 14 of the Indian Limitation Act, hence, granting of benefit of exclusion of time to the plaintiff-respondent in the facts of the case was an erroneous exercise of jurisdiction by the two courts below. 35. From the above, it is clear that the suit of the plaintiff-respondent was barred by limitation and the endeavour of the two courts below to exclude the time as 23.07.1980 to 31.01.1981 and 31.01.1981 to 26.08.1982, while calculating the period of limitation is wholly erroneous and it has resulted in recording of incorrect findings which cannot be sustained. The findings recorded by the two courts below are perverse and against the settled legal principles and thus liable to be set aside. 36. Insofar as the third question is concerned whether the trial court had usurped the jurisdiction not vested in it by entertaining and decreeing the plaintiff's suit is concerned, this question can be answered in light of the judgment rendered by the Hon'ble Supreme Court Rajasthan S.R.T.C. vs. Mohar Singh, reported in (2008) 5 SCC Page 542, wherein it has been held that the civil courts may have a limited jurisdiction in service matters, but it cannot be said to have no jurisdiction at all by entertaining a suit. The relevant portion is being reproduced as under:- "Civil Court may have a limited jurisdiction in service matters but it cannot be said to have no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the order passed in the disciplinary proceedings or on the quantum of punishment imposed. The relevant portion is being reproduced as under:- "Civil Court may have a limited jurisdiction in service matters but it cannot be said to have no jurisdiction at all to entertain a suit. It may not be entitled to sit in appeal over the order passed in the disciplinary proceedings or on the quantum of punishment imposed. It may not in a given case direct reinstatement in service having regard to Section 14(1)(b) of the Specific Relief Act, 1963 but, it is a trite law that where the right is claimed by the plaintiff in terms of common law or under a statute other than the one which created a new right for the first time and when a forum has also been created for enforcing the said right, the Civil Court shall also have jurisdiction to entertain a suit where the plaintiff claim benefit of a fundamental right as adumbrated under Article 14 of the Constitution of India or mandatory provisions of statute or statutory rules governing the terms and conditions of service." 37. Thus from the above, it is clear that the civil courts would have jurisdiction in case if the principles of nature justice are found to have been violated by the State Authorities. In the present case, it would indicate that the suit was filed in the year 1982 which is prior to creation of the Services Tribunal. Thus, at the relevant time of institution of the suit, it was the civil court which had the jurisdiction to consider the matters and issue which was raised by the plaintiff respondent. Thus, it cannot be said that the civil court did not have jurisdiction or that it had usurped the jurisdiction. Thus, the question is answered accordingly. 38. Before concluding, it will be relevant to note that the plaintiff-respondent namely Avadhesh Pratap Singh was aged 36 years as indicated in the plaint in the year 1982. This appeal is being disposed in the year 2018 and thus with the passage of time, it is absolutely certain that Shri Avadhesh Pratap Singh must have superannuated years ago. 38. Before concluding, it will be relevant to note that the plaintiff-respondent namely Avadhesh Pratap Singh was aged 36 years as indicated in the plaint in the year 1982. This appeal is being disposed in the year 2018 and thus with the passage of time, it is absolutely certain that Shri Avadhesh Pratap Singh must have superannuated years ago. Since, the appeal is being allowed on the question of limitation, however it is made clear that no action against the plaintiff-respondent be instituted for any dues which may have paid to him on account of the fact that he had served in the Department during the period, the matter was pending before the Court. 39. This Court is conscious of the fact that ordinarily under Section 100 CPC this kind of a direction is not issued. However in exceptional circumstances the Court is not powerless to issue directions which are required to meet the ends of justice. A Division Bench of this Court in the case of Smt. Abida Begum vs. R.C.&E. Officer, reported in AIR 1959 (All) Page 675 and followed in 2004 (5) AWC Page 4707 -Dr. Ravindra Kumar Goel vs. State of U.P.; 2004 (2) UPLBEC Page 1404 -U.P. Nursing Home Association and others vs. Rajesh Kumar Srivastava and State of U.P. vs. Khempal and others, reported in 2017 (2) ADJ Page 494 has consistently held that in exceptional circumstances a Judge sitting in a particular jurisdiction can issue directive relating to another jurisdiction so as to do complete justice. 40. Thus, taking a holistic view and considering the fact that the plaintiff-respondent has already completed his service tenure, years ago and this appeal is allowed only on the question of limitation, thus, it would be very inequitable if after setting aside the judgment and decree, the Department may initiate process for recovering of dues against the retired employee, hence in the exceptional circumstances, the aforesaid direction has been issued. 41. In the result, the second appeal is allowed and the judgment and decree dated 31.01.1985 passed by Civil Judge, Raebareli and the judgment and decree dated 21.01.1983 passed by Munsif, Raebareli are set aside subject to the directions contained in the judgment. 42. No order as to costs.