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PETITIONER: STATE OF PUNJAB AND ORS.

       Vs.

RESPONDENT: GURDEV SINGH, ASHOK KUMAR

DATE OF JUDGMENT21/08/1991

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAMASWAMI, V. (J) II YOGESHWAR DAYAL (J)

CITATION:  1991 AIR 2219            1991 SCR  (3) 663  1991 SCC  (4)   1        JT 1991 (3)   465  1991 SCALE  (2)365

ACT:     Limitation Act, 1963--Article 113--Application  Suit for declaration  of continuance in service by an illegally  dis- missed employee after three years--Barred by limitation.     Civil Service--Dismissal--Illegal--Suit for  declaration of  continuance in service--Whether Article 113,  Limitation Act applies.     Limitation    Act,    1963--Article    113--"Right    to sue"--Construction of--Institution of suit when indicated.

HEADNOTE: The  respondent-plaintiff in C.A. No. 18S2/89 was  appointed as  an ad hoc Sub-inspector in the District Food and  Supply Department. He absented himself from duty from 29  September 197S. On 27 January 1977, his services were terminated.     On 18 April 1984, he instituted ’the mir for declaration that  the  termination order was against the  principles  of natural  Justice, terms and conditions of  employment,  void and inoperative and be continued to be in service.    The  State-the  appellant-defendant  contended  that  the plaintiff’sservices  were terminated in accordance with  the terms and conditions of his ad hoc appointment and the  suit was barred by time.                  .      The  trial  Court dismissed the Suit on the  ground  of limitation,  but  on appeal the  Additional  District  Judge decreed the suit, holding that the termination order  though simplicitor in nature was passed as a measure of  punishment without an ’enquiry and he should have been given an  oppor- tunity to explain his conduct by holding proper enquiry  and that,  since the order of termination was bad, the suit  was not barred by time.      The second appeal preferred by the State was  dismissed by  the  High  Court holding that as the  dismissal  of  the employee was illegal, 664 void or inoperative-being in contravention of the  mandatory provisions  of  any rules or. conditions of  service,  there was.no limitation to bring a suit for declaration of contin- uance in service.     The  respondent-plaintiff  in C.A. No. 4772/89  was  ap-

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pointed  on.  14  November 1977. On 15 March  1979,  he  was discharged  from  service for some  misconduct  and  against which appeal was made, which was rejected on 15.6.1979.     When  his revision petition was dismissed on  30.11.1979 he brought a suit on 12.2.1985 seeking declaration that  the order discharging him from service was illegal, ultra vires, unconstitutional  against the principles of natural  justice and continuance in service.     The trial court dismissed the suit. The appeal preferred by  the  plaintiff was allowed by  the  Additional  District Judge  that  the plaintiff was discharged  from  service  in contravention  of the mandatory provisions of the rules  and as  such  it  had no legal effect. There was  no  period  of limitation  .for instituting the suit for  declaration  that such  a dismissal order was not binding upon the  plaintiff. The High Court dismissed the second appeal in limine.     On the question, whether limitation governs the suit for declaration  by a dismissed employee, if the  dismissal  was illegal,  void or inoperative being in contravention of  the mandatory provisions of any rules or conditions of  service, this Court, allowing the appeals of the State the defendant, HELD: 1. The Court’s 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. [667H-668. A]     2. 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. [6TOG.H]     3.  The party aggrieved by the invalidity of  the  order has to approach the Court for relief of declaration that the order  against him is inoperative and not binding upon  him. He  must approach the Court within the prescribed.period  of limitation.  If the statutory time limit expires  the  Court cannot give the declaration sought for. [669E-F] 665     4. If an act is void or ultra vires it is enough for the Court  to declare it so and it collapses  automatically.  It need not be set aside. The aggrieved party can simply seek a declaration  that  it is void and not binding  upon  him.  A declaration  merely declares the existing state of  affairs, and  does  not ’quash’ so as to produce a new state  of  af- fairs. [668F-G]     But  none  theless the impugned dismissal order  has  at least  a de facto operation unless and until it is  declared to be void or nullity by a competent body or Court. [668H]     Smith v. East Elloe Rural Disrict Council, [1956] AC 736 at 769, referred to. Prof. Wade: Administrative Law, 6th Ed. P. 352, referred to. State  of M.P.v. Syed Quamarali, [1967] 1 SLR  228,  distin- guished.     Jagdish  Prasad  Mathur  and  Ors..v.  United  Provinces Government, AIR 1956 All 114 and Abdul Vakil v. Secretary of State and Anr-, AIR 1943 Oudh 368, Approved.     State of Punjab v. Ajit Singh, [1988] 1 SLR 96 and State of Punjab v. Ram Singh, [1986] 3 SLR 379, over-ruled.     5. 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  une-

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quivocal  threat  to infringe that right  by  the  defendant against whom the suit is instituted. [668C-D]     Mt.  Bole  v. Mt. Koklam and Ors., AIR 1930 PC  270  and Gannon Dunkerley and Co. v. The Union of India, AIR 1970  SC 1433 followed.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal Nos. 1852  & 4772 of 1989.     From the Judgment and Order dated 25.5.1988 & 11.11.1988 of the Punjab and Haryana High Court in R.S.A. Nos. 2404  of 1987 and 2246 of 1988. 666 A.S. Sohal and G.K. Bansal for the Appellants.     Atul Nanda, ,Francis Victor, S.K. Mehta (N.P.),  Subhash G. Jindal and N.A. Siddiqui for the Respondents. The Judgment of the Court was delivered by     K.  JAGANNATHA  SHETTY , J. These  appeals  against  the decision of the High Court of Punjab & Haryana raise a short issue, concerning limitation governing the suit for declara- tion  by  a dismissed employee that he Continues  to  be  in service  since his dismissal was void and  inoperative.  The High Court has observed that if the dismissal of the employ- ee is illegal, void or inoperative being in contravention of the  mandatory  provisions  of any rules  or  conditions  of service, there is no limitation to bring a suit for declara- tion that the employee continues to be in service.     The facts giving rise to these appeals, as found by  the Courts below, may be summarised as follows:     CA  No.  1852/89 The respondent in this appeal  was  ap- pointed as an ad hoc sub-inspector in the District Food  and Supply Department of Punjab State. He absented himself  from duty with effect from 29 September 1975. On 27 January 1977, his  services were .terminated. On 18 April 1984, he  insti- tuted  the suit for declaration that the  termination  order was  against  the principles of natural justice,  terms  and conditions  of employment, void and inoperative and he  con- tinues  to be in service. The State resisted the  suit  con- tending  inter  alia,  that the  plaintiff’s  services  were terminated  in accordance with the terms and  conditions  of his ad hoc appointment and the suit was barred by time.  The trial  court accepted the plea of limitation  and  dismissed the  suit,  but  on appeal the  Additional  District  Judge, Jullundhar  decreed the suit. He observed that the  termina- tion  order though simpliciter in .nature’ was passed  as  a measure of punishment. The plaintiff’s services were  termi- nated  for  unauthorised absence without an enquiry  and  he should have been given an opportunity to explain his conduct by  holding  proper  enquiry. On  the  plea  of  limitation, learned Additional District Judge held that no limitation is prescribed  for  challenging an illegal  order.  Since  the. order  of  termination was bad, the suit was not  barred  by time.  In the second appeal preferred by the State the  High Court agreed with the View following its earlier decisions. CA No. 4772/89 The respondent in this appeal was a Railway 667 Police  Constable. He was appointed on 14 November 1977.  On 15  March  1979,  he was discharged from  service  for  some misconduct. On 15 June 1979, his appeal was rejected by AIG, Railways,-Patiala, Punjab. On 30 November 1979, his revision petition  was dismissed by the Inspector General of  Police, Punjab.  On  12  February 1985 he  brought  a  suit  seeking declaration that the order discharging him from service  and

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confirmed  in  the appeal and revision, was  illegal,  ultra vires, unconstitutional and against the principles of  natu- ral justice and he continues to be in service as  constable. The trial court dismissed the suit. The appeal preferred  by the plaintiff was accepted by the Additional District  Judge who decreed the suit as prayed for. He has inter alia stated that the plaintiff was discharged from service in contraven- tion of the mandatory provisions of the rules and as such it has  no legal effect. There is no period of limitation  for. inStituting  the suit for declaration that such a  dismissal order  is  not binding upon the plaintiff.  While  affirming that  principle, the High Court dismissed the second  appeal in limine.     These  are  not the only cases in which the  Punjab  and Haryana   High  Court has taken the view that  there  is  no limitation  for  instituting the suit for declaration  by  a dismissed  or  discharged employee on the  ground  that  the dismissal  or  discharge was void or inoperative.  The  High Court  has repeatedly held that if the dismissal,  discharge or termination of services of an employee is illegal, uncon- stitutional  or against the principles of  natural  justice, the  employee  can approach the Court at  any  time  seeking declaration  that he remains in service. The suit  for  such reliefs  is  not governed by any of the  provisions  of  the Limitation  Act  [See: (i) State of. Punjab v.  Ajit  Singh, [1988]  1  SLR  96 and (ii) State of Punjab  v.  Ram  Singh, [1986] 3 SLR 379.]     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 limita- tion 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  or application. Section 2(J) also defines, "prescribed  period" to mean the period of limitation computed in accordance with the  provisions  of  the Act. The Court’s  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 668 "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 fail 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  residu- ary 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  insti-

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tuted (See: (i) Mt. Bole v. Mt. Koklam and Ors., AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. v. The Union of India, AIR 1970 SC 1433).     In  the  instant cases, the respondents  were  dismissed from  service. May be illegally. The order of dismissal  has clearly infringed their right to continue in the service and indeed  they were precluded from attending the  office  from the  date of their dismissal. They have not been paid  their salary from that date. They came forward to ’the Court  with a  grievance that their dismissal from service was  no  dis- missal in law.’ According to them the order of dismissal was illegal,  inoperative and not binding on them.  They  wanted the  Court  to  declare that their dismissal  was  void  and inoperative and not binding on them and they continue to  be in.  service. For the purpose of these cases, we may  assume that  the order of dismissal was void inoperative and  ultra vires, and not voidable. If an Act is void or ultra vires it is  enough for the Court to declare it so and  it  collapses automatically. It need not be set aside. The aggrieved party can simply seek a declaration that it is void and not  bind- ing  upon  him. A declaration merely declares  the  existing state of affairs and does not ’quash’ so as to produce a new state of affairs.     But  nonetheless  the impugned dismissal  order  has  at least  a de facto operation unless and until it is  declared to be void or nullity by a competent body or Court. In Smith v. East. Elloe Rural District Council, [1956] AC 736 at  769 Lord Redcliffe observed: 669               " An order even if not made in good faith,  is               still an actcapable of legal consequences.  It               bears  no brand of invalidity upon  its  fore-               head.  Unless  the necessary  proceedings  are               taken  at law to establish the cause of  inva-               lidity  and  to get it  quashed  or  otherwise               upset,  it  will remain as effective  for  its               ostensible  purpose as the most impeccable  of               orders."     Apropos  to  this  principle, Prof.  Wade  states:  "the principle  must  be equally true even where the  ’brand’  of invalidity’ is plainly visible; for their also the order can effectively  be resisted in law only by obtaining the  deci- sion of the Court (See: Administrative Law 6th Ed. p.  352). Prof. Wade sums up these principles:               "The  truth  of the matter is that  the  court               will  invalidate an order only if  ’the  right               remedy  is sought by the right person  in  the               right proceedings and circumstances. The order               may be hypothetically a nullity, but the Court               may  refuse to quash it because of the  plain-               tiff’s  lack of standing, because he does  not               deserve a discretionary remedy, because he has               waived  his  rights, or for some  other  legal               reason.  In  any such case  the  ’void’  order               remains  effective and is, in reality,  valid.               It  follows that an order may be void for  one               purpose and valid for another, and that it may               be  void against one person but valid  against               another." (Ibid p. 352)     It  will be clear from these principles, the  party  ag- grieved  by the invalidity of the order has to approach  the Court  for relief of declaration that the order against  him is  inoperative and not binding upon him. He  must  approach the Court within the prescribed period of limitation. If the statutory  time  limit  expires the Court  cannot  give  the

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declaration sought for.     Counsel  for the respondents however, has placed  strong reliance  on the decision of this Court in State of M.  P.v. Syed  Quamarali, [1967] 1 SLR 228. The High Court  has  also relied  upon  that  decision to hold that the  suit  is  not governed  by.  the limitation. We may examine  the  case  in detail.  The respondent in that case was a sub-inspector  in the  Central  Province Police Force. He was  dismissed  from service  on 22 December 1945. His appeal against that  order was  dismissed by the Provincial Government,  Central  Prov- inces  and Berar on 9 April 1947. He brought the suit  on  8 December 1952 on allegation that the order of dismissal  was contrary to the para 24 1 of the Central Provinces and 670 Berar  Police  Regulations and as such contrary to  law  and void, and prayed for recovery of Rs.4724/5 on account of his pay  and dearness allowance as sub-inspector of  police  for the three years immediately preceding the date of the insti- tution of the suit. The suit was decreed and. in the  appeal before  the  Supreme Court, it was urged that  even  if  the order  of dismissal was contrary to the  provisions  of.law, the  dismissal  remained valid until and unless  it  is  set aside  and no relief in respect of salary could  be  granted when the time for obtaining an order setting aside the order of dismissal had elapsed. It was observed:               "We therefore hold that the order of dismissal               having  been  made in breach  of  a  mandatory               provision  of the rules subject to which  only               the power of punishment under section 7  could               be exercised, is totally invalid. The order of               dismissalhad therefore, no legal existence and               it  was  not necessary for the  respondent  to               have  .the  order set aside by  a  Court.  The               defence of limitation which was based .only on               the  contention that the order.had to  be  set               aside by a court before it became invalid must               therefore be rejected."     These  observations  are  of little  assistance  to  the plaintiffs  in the present case. This Court only  emphasized that since the order of dismissal was invalid being contrary to para 241 of the Berar Police Regulations, it need not  be set  aside. But it may be noted that Syed  Qamarali  brought the  suit within the period of limitation. He was  dismissed on  22 December 1945. His appeal against the order  of  dis- missal was rejected by the Provincial Government on 9  April 1947. He brought the suit which has given rise to the appeal before  the Supreme Court on 8 December 1952. The  right  to sue accrued to Syed Qamarali when  the Provincial Government rejected his appeal affirming the original order  of  dismissal and the suit was  .brought  within  six years from that date as prescribed under Article 120 of  the Limitation Act, 1908.     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  gov- erned  by Article 120 of the Limitation Act. A similar  view has been taken by Oudh Chief Court in Abdul Vakil v.  Secre- tary  of  State  and Anr., AIR 1943 Oudh 368.  That  in  our opinion is the correct view to be taken. A suit for declara- tion 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 671

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High Court in. these and other cases ((i)State of Punjab  v. Ajit Singh,. [1988] 1 SLR 96 and (ii) State of Punjab v. Ram Singh, [1986] 2 SLR 379 is not correct and stands overruled.     In  the  result,  we allow the appeals,  set  aside  the judgment  and decree of the High Court and dismiss the  suit in  each  case. In the circumstances, however,  we  make  no order as to costs. V.P.R. Appeals allowed. 672