16 August 1996
Supreme Court
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THE SECRETARY,MINISTRY OF WORKS & HOUSINGGOVERNMENT OF INDI Vs SHRI MOHINDER SINGH JAGDEV & ORS.


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PETITIONER: THE SECRETARY,MINISTRY OF WORKS & HOUSINGGOVERNMENT OF INDIA

       Vs.

RESPONDENT: SHRI MOHINDER SINGH JAGDEV & ORS.

DATE OF JUDGMENT:       16/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (8)    46

ACT:

HEADNOTE:

JUDGMENT: Present:               Hon’ble Mr. Justice K. Ramaswamy               Hon’ble Mr. Justice G.B. Pattanaik      Ms Binu  Tamta and  Ms.  Sushma  Suri,  Advs.  for  the appellants      Keshav Dayal,  Sr. Adv., S.N. Aggarwal, P.D. Sharma and H.K. Puri, Advs. with him for the Respondents                          O R D E R      The following order of the Court was delivered:                          O R D E R      Leave granted.  We have  heard learned  Counsel on both sides.      This appeal  by special  leave arises from the judgment and   order dated  March 22, 1994 made by the Division Bench of the  Delhi High Court in RFA (OS) No. 27/94. The admitted facts are  that the respondent came to be appointed on March 7, 1956  as Section  officer in  the  Central  Public  Works Department. Thereafter, the Executive Engineer discovered on October 6,  1956 that  he had  the appointment  on producing false certificates.  Consequently, a  report was  laid under Section 420,  468 and 127, Indian Penal Code and he was kept under suspension.  Independent thereof, exercising the power under Rule  5 of the Central Government Services (Temporary) Service Rules  1949, his  services were  terminated by order dated September 10, 1957. The respondent after his acquittal by the  criminal court  laid the  suit in  forma pauperis on August 13,  1965 seeking declaration that the termination of his service  was wrong,  unconstitutional, that he should be deemed to have continued in service and that he was entitled to Rs.84,000/-  by way salary and damages by way of expenses incurred by  him to defend the criminal cases etc. The trial Judge (single  Judge of  the High  Court) by  his  judgement dated March 22, 1994, though held that the termination order was  unconstitutional,   since  he  was  terminated  without compliance of  Article 311(2) of the Constitution, dismissed the suit  as barred  by limitation.  On appeal, the Division

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Bench held  that the  suit was  not barred by limitation for the reason  that he had laid the suit after the rejection of his application  for reinstatement  and  consequent  to  the acquittal by  the criminal  court on  May 8,  1964 and that, therefore, it was within limitation. The suit was decreed.      Ms. Binu Tamta, learned counsel for the Union of India, contended that  the Division  Bench has  committed  grievous error of law in decreeing the suit. According to the learned counsel,  cause  of  action  for  the  suit  had  arisen  on September 10,  1957; the  limitation for  the declaration of the suit  is 3  years from  the date of the dismissal. Since the suit was filed on August 13, 1965, it was clearly barred by limitation.  In support  thereof she placed reliance on a decision of  this Court  in State of Punjab & Ors. vs Gurdev Singh  [JT  1991  (3)  SC  465]  The  learned  counsel  also contended that  this is not a case of dismissal on the basis of misconduct  an criminal charge but is independent thereof and that,  therefore, the  acquittal does  not  furnish  any cause of  action to  lay  the  suit  as  emphasised  by  the respondent -  plaintiff. The  High Court was wrong in laying emphasis in that behalf.      Shri Keshav  Dayal,  learned  senior  counsel  for  the respondent, on  the other  hand, contended that the order of suspension does  indicate that the respondent was kept under suspension pending  criminal proceedings;  he was ultimately acquitted.  Thereafter,   he  made   a  representation   for reinstatement; on  its rejection,  the suit  came to be laid and, therefore,  the suit  was not  barred by limitation. In support thereof  he placed reliance on two judgments of this Court, viz.,  Babulal vs.  State of  Haryana & Ors [(1991) 2 SCC 335]  and State of M.P. vs Syed Qamarali [1967 SLR 228]. He also  contended that the appeal was incompetent since the respondent had  impleaded the  Union of  India as  the first party- defendant  and the aggrieved person would be only the Union of  India and  not the  Secretary. The  Special  Leave Petition also  was barred  by limitation.  He also  contends that on  the peculiar  facts and  circumstances,  since  the respondent was  under suspension  right from 1957 and he had the  relief  from  the  Division  Bench  in  1994  with  all consequential benefits,  it  may  not  warrant  interference under Article 136 of the Constitution.      Having given  due consideration  to the  contentions of the  counsel   and  having   gone  through   the  facts  and circumstances of  the case,  first question  that arises is: whether the  appeal has  been competently  laid? It  is  not disputed and  cannot be disputed that the Union of India can lay  the   suit  and  be  sued  under  Article  300  of  the Constitution in  relation to  its affairs.  Under Section 79 read with  Order 27  Rule 1,  Code of  Civil Procedure, in a suit, by or against the Central Government, the authority to be named as plaintiff/defendant shall be Union of India. The Secretary, Ministry  of Works  and Housing  is a limb of the Union of  India transacting  its functions  on behalf of the Government  under   the  concerned  Department  as  per  the business rules  framed under Article 77 of the Constitution. Therefore, the  appeal came  to be  filed by  the Secretary, though wrongly  described. The  nomenclature  given  in  the cause title  as Secretary  instead of Union of India, is not conclusive. The  meat of  the matter  is that  the Secretary representing the  Government of  India had  filed the appeal obviously on  behalf of  Union  of  India.  Accordingly,  we reject the first contention.      The question  then  is:  whether  the  delay  has  been properly explained in filing the special leave petition. The appellants have  sufficiently stated  the  circumstances  in

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which they came to file the special leave petition after the expiry of  limitation. It is not in dispute that the counsel who appeared  for the  Union of  India in the High Court had sent his  record and  intimation of  the  result  after  the expiry of limitation. Therefore, the blame has to be laid on the counsel  who was  irresponsible  is  not  informing  the Government, after  the appeal was allowed by the High Court. The Government  acts only  through its  officers at  diverse stage. The  advocate who appeared for the Union of India had forsaken his responsibility without informing the Government of the  action to  be taken  on the  result of  the decision given by  the High  Court. Admittedly,  after the receipt of the copy  of the  judgment from the advocate on September 1, 1994 Several  steps have  been taken till filing the special leave petition on 23.1.1995. Proper explanation for 217 days has accordingly been given in the affidavit filed in support of the  SLP. We  find that  the explanation  offered by  the appellant is  well acceptable  and is accepted. Accordingly, the delay is not in our view a bar to consider the matter on merits. Accordingly, the delay is condoned.      The crucial  question is: whether the suit is barred by limitation? Section  3 of  the  Limitation  Act,  1963  [for short, the  "act"] postulates  that the  limitation  can  be pleaded. If  any proceedings have been laid after the expiry of the period of limitation, the court is bound to take note thereof and  grant appropriate relief and has to dismiss the suit, if  it is  barred by  limitation. In  this  case,  the relief  in   the  plaint,  as  stated  earlier,  is  one  of declaration. The  declaration is clearly governed by Article 58 of the Schedule to the Act which envisages that to obtain "any other" declaration the limitation of three years begins to run  from  the  period  when  the  right  to  sue  "first accrues".  The  right  to  sue  had  first  accrued  to  the respondent on  September  10,  1957  when  the  respondent’s services came  to  be  terminated.  Once  limitation  starts running, until its running of limitation has been stopped by an order of the competent civil court or any other competent authority, it cannot stop. On expiry of three years from the date of  dismissal  of  the  respondent  from  service,  the respondent  had   lost  his  right  to  sue  for  the  above declaration.      The contention  of Shri  Keshav Dayal is that the order of suspension  has been  made pending investigation into the offence. It  would contemplate  that respondent  has  got  a right to  take  action  consequent  to  the  result  of  the criminal case.  Since he  was acquitted of the charge on May 8, 1964,  cause of  action had  on that day, first arisen to the respondent.  We find  no force  in the contention. Three courses are  open to the employer. Firstly to take action in terms of  the order  of appointment;  Secondly, according to the conduct rules; and thirdly as a result of criminal case. In this  case, the  employer had exercised the first option, namely,  termination   of  service  in  terms  of  order  of appointment.      Rule 5  of the  Rule contemplates  that Service  can be terminated in terms of appointment. The terms of appointment clearly mentions  that it  can be  terminated  at  any  time without notice.  Under those  circumstances, the termination is in  exercise of  the statutory under Rule 5 of the Rules. The decision  of this Court in Babulal’s case (supra) has no application in  this case.  Therein, the foundation of cause of action  was the  misconduct punishable under Section 420, IPC, Having  been suspended  and dismissed  from service for these misconduct,  after acquittal  he had  filed  the  suit within the  limitation.  Therefore,  the  ratio  therein  is

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clearly inapplicable  to the facts in the case. Equally, the decision of  the Constitution  Bench in Syed Qamarali’s case (supra) is  inapplicable. Therein,  the suit  was filed  for declaration that he was wrongfully dismissed. Therefore, the dismissal order  was the  foundation for  cause  of  action. After dismissal  of the  Departmental’s appeal  he laid  the suit  Accordingly,   the  suit   came  to  be  filed  within limitation. It  was held  that once  the dismissal order was found to  be unconstitutional in the eye of law, there is no valid order  of termination,  As proposition  of law,  there cannot be  any dispute  in that behalf, But the question is: whether the  above ratio  is applicable to the facts in this case.  As  already  stated,  the  employer  is  entitled  to terminate the services of its employee in terms of the order of appointment  which confers  power to take action in terms thereof. As  seen, Rule  5 of  Rules clearly  gives power to terminate the  services of the temporary servant in terms of the  order  of  appointment.  Until  the  temporary  service matures into  a permanent,  he has  no right to the post. At any point  of time  before that right accrues, it is open to the employer  to terminate the service in terms of the order of appointment.  This question was elaborately considered by a Bench of three judges of this Court in Gurdev Singh’s case (supra). We  respectfully agree  with the ratio therein. The High  Court  wrongly  applied  the  principle  of  dismissal followed by conviction for misconduct and acquittal thereof.      The appeal is accordingly allowed and the judgement and order of the Division Bench is set aside, but, in the circumstances, without costs.