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PETITIONER: S.KUMAR

       Vs.

RESPONDENT: THE INSTITUTE OF CONSTITUTIONAL AND PARLIAMENTARY STUDIESAND

DATE OF JUDGMENT29/09/1983

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. CHANDRACHUD, Y.V. ((CJ) MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR   59            1984 SCR  (1) 153  1983 SCC  (4) 516        1983 SCALE  (2)918

ACT:      Civil Procedure-Proceedings  commenced-Change in  cause of action-Whether  proceedings  can  be  maintained  on  the original cause of action.      Civil Procedure-Amendment of plaint-When to be done.

HEADNOTE:      The appellant  who was  found guilty  of a charge in an enquiry was served with a notice to show cause why he should not be  dismissed from  service. A  second charge  was  also framed against the appellant. The appellant filed a suit for declaration and  an injunction and obtained an exparte order restraining the  respondent and its officers from dismissing him.  The  Subordinate  Judge  dismissed  the  suit  as  not maintainable. The  appellant  filed  an  appeal  before  the Senior Subordinate  Judge. In  reply to the stay application it  was   stated  that   the  stay  application  had  become infructuous  as   the  appellant  had  been  dismissed  from service. The  Senior Subordinate Judge dismissed the appeal. The appellant  filed a  second appeal  in the High Court and during the  pendency moved  an application  for amendment of the  plaint.   The  High   Court  rejected   the   amendment application and  dismissed the  appeal. In  this appeal  the appellant urged  that  among  the  reliefs  claimed  in  his amendment  application  filed  in  the  High  Court  he  had included the  relief for  declaring the  order of  dismissal invalid. The  appellant filed  an  application  praying  for amendment of the plaint by the inclusion of such a relief.      Dismissing the appeal,      HELD: The appeal is not maintainable.      Once an  order of  dismissal was  passed against him, a different cause  of action arose and it was not possible for the appellant  to maintain  the proceedings  on the original cause of  action. The  original reliefs  claimed in the suit consisted of  a decree  of declaration  that the proceedings taken against  the appellant  upto the framing of the second charge on October 15/16, 1975 were invalid, and a decree for perpetual  injunction   restraining  the   respondents  from dismissing the  appellant. At no stage upto the dismissal of his second  appeal did  the appellant  attempt to  include a relief in  his plaint against the order of dismissal. On the

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contrary, the  reliefs sought  to be  included  through  the amendment application  filed in  the High Court proceeded on the assumption  that the  appellant was  still continuing in service. [156 E-F; B-C] 154      The Court  is constrained  to  reject  the  application praying for  leave to amend the plaint inasmuch as it is for the  first   time  throughout   this  protracted  proceeding commencing with the institution of the suit in 1975 that the appellant is  now seeking  to include the relief although he had come  to  know  several  years  ago  that  he  had  been dismissed. No circumstance has been shown explaining why the appellant should  be permitted  at this  late stage to amend the  plaint.  It  has  also  not  been  established  by  the appellant that if a suit is a filed now against the order of dismissal it  would be  within  the  period  of  limitation. [156;H 157 A-B]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2613 of 1980.      Appeal by  Special leave  from the  Judgment and  Order dated the  18th April,  1980 of  the  Delhi  High  Court  in Regular Second Appeal No. 33 of 1977.      Petitioner in Person.      Anand Prakash,  C.S. Vaidyanathan,  Probir Chowdhry Ms. Laxmi Anand and Samir Prakash for the Respondent.      The Judgment of the Court was delivered by      PATHAK, J.  This appeal  by special  leave is  directed against a judgment of the High Court of Delhi dismissing the appellant’s second appeal.      The appellant  was appointed  in 1968  to the  post  of Research Officer  of the  Institute  of  Constitutional  and Parliamentary Studies,  New Delhi,  as a  society registered under the  Societies Registration  Act, 1860,  and was later designated as Assistant Director. Subsequently, he was given additional charge of the Library of the Institute. In March, 1974 the  appellant submitted  a bill  of  Rs.  350  to  the Institute  claiming   reimbursement  of   medical   expenses incurred by  him in  the delivery  of a  child to  his  wife during the  previous month. The Institute, however, framed a charge on  November 5, 1974 against the petitioner, alleging that he  was attempting to draw the sum by tendering a false bill. A member of the Executive Council of the Institute was appointed to  enquire into  the  charge  and  the  appellant participated in the enquiry proceedings. During the pendency of the  proceedings the  appellant appealed to the Executive Council of  the Institute to change the Enquiry officer but, it is alleged by the appellant, while the appeal was pending consideration 155 the appellant  received a  Memorandum dated July 17/18, 1975 from the  Executive Chairman  of the  Institute placing  the appellant under  suspension. The  Enquiry officer  completed his report  on August  9, 1975  holding that  the charge  of presenting a false bill was proved against the appellant. On October 15/16,  1975 a  second charge was framed against the appellant alleging  that he  was  guilty  of  disobeying  an officer order  requiring him  to hand  over  charge  of  the Library. The  appellant was also served with a notice of the same  date,  along  with  a  copy  of  the  enquiry  report, requiring him  to show  cause why he should not be dismissed from  service.   The  appellant   then  filed   a  suit  for

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declaration and  injunction in  the  Court  of  the  learned Subordinate Judge,  Delhi on  November 15, 1975 and obtained an ex-parte order restraining the Institute and its officers from dismissing  him. When  the matter  came  on  for  final disposal on  August 24,  1976 the  learned Subordinate Judge dismissed the  suit without  trial on  the preliminary point that it was not maintainable. He expressed the view that the appellant’s remedy  lay in  damages and  not in  a suit  for declaration. The appellant appealed, and during the pendency of the appeal the learned Senior Subordinate Judge passed an order dated  August 28,  1976 declining to grant an-ex-parte stay order. On September 3, 1976 the Institute filed a reply stating that  the stay application had become infructuous as the appellant  had been  dismissed from  service. The appeal filed by  the appellant  was dismissed by the learned Senior Subordinate Judge on January 22, 1977, who endorsed the view of the  trial court  that the remedy of the appellant lay in damages instead  of by a suit for declaration. The appellant filed a second appeal in the High Court of Delhi. During the pendency of the appeal he moved an application for amendment of the plaint. On April 18, 1980 the High Court rejected the amendment application  and also dismissed the second appeal. And now this appeal.      The appellant  attempted to place his case before us on its  merits,   but  strong   objection  was   taken  by  the respondents to  the maintainability  of the  appeal  on  the ground that  the order dismissing the appellant had not been challenged by  him, that the order had become final and that the  continued   existence  of   the  order  constituted  an impediment to  the consideration  of the  reliefs claimed in the suit.  The appellant  strenuously urged  that the appeal continues to  survive, and  he attempted  to establish  that among the reliefs claimed in his amendment application filed in the High Court he had included a relief for declaring the order of  dismissal invalid  and, he said, the amendment had been wrongly refused. Shortly before 156 concluding his  submissions  in  this  Court,  he  filed  an application in  this appeal  praying for  amendment  of  the plaint by the inclusion of such relief.      We have  examined the  record of  the case  and we find that at no stage upto the dismissal of his second appeal did the appellant  attempt to  include a  relief in  his  plaint against the order of dismissal. On the contrary, the reliefs sought to  be included  through  the  amendment  application filed in the High Court proceeded on the assumption that the appellant was  still continuing in service, for we find that one of  the reliefs  specifically mentioned in the amendment application was:           "(c) "A  decree for perpetual injuction he granted      to the  plaintiff against  the defendants,  restraining      the defendants  from dismissing  the plaintiff from the      post of  Assistant Director and Incharge of the Library      of the  Institute and taking any action on the basis of      the enquiry report or show-cause notice and holding any      second enquiry  on the basis of the second charge-sheet      or taking any action whatsoever in these matters." Plainly, once  an order of dismissal was passed against him, a different  cause of  action arose  and it was not possible for the appellant to maintain the proceeding on the original cause of  action. The  original reliefs  claimed in the suit consisted of  a decree  of declaration  that the proceedings taken against  the appellant  upto the framing of the second charge on October 15/16, 1975 were invalid, and a decree for perpetual  injunction   restraining  the   respondents  from

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dismissing the appellant.      The appellant contended that the order of dismissal had not been  served on  him and,  therefore,  no  occasion  had arisen for  challenging the  order. It  was alleged  that an unsigned copy  of an order of dismissal had been received by him and  nothing more.  We  cannot  accept  the  contention, because we find ample evidence on the record indicating that the  appellant  treated  the  order  served  on  him  as  an effective order and that otherwise also he was aware that he had been  dismissed. Indeed,  he took  proceedings in  court charging the  respondents with contempt of court for passing an order of dismissal while his suit was still pending.      As regards  the application now filed before us praying for leave  to amend the plaint, we are constrained to reject it inasmuch 157 as it  is for  the first  time  throughout  this  protracted proceeding commencing  with the  institution of  the suit in 1975 that the appellant is now seeking to include the relief although he  had come  to know several years ago that he had been dismissed.  No circumstance  has been  shown explaining why the  appellant should be permitted at this late stage to amend the  plaint. It  has also  not been established by the appellant that  if a  suit is filed now against the order of dismissal it would be within the period of limitation.      Upon the  aforesaid considerations,  we are  of opinion that the  present appeal  is liable  to be  dismissed as not maintainable.      We find  it unnecessary  to  enter  into  the  question whether the  charge framed  against the  appellant,  on  the basis of  which he  has been  dismissed, stands  proved.  We express no opinion in the matter.      While concluding,  we may  record  that  the  appellant claims arrears  of pay  from the  Institute. We  believe  it would be  just and  proper that the Institute should examine the claim  of the appellant, and if it finds that any amount is due  to the appellant it should make payment thereof with all reasonable  expedition. It  is hoped that in this regard the Institute  will not  seek the advantage of any technical objection, including the period of limitation.      In  the   result,  the   appeal  is  dismissed  as  not maintainable. There is no order as to costs. H.S.K.                                     Appeal dismissed. 158