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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: NANDLAL RAIGAR

DATE OF JUDGMENT:       16/04/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. BHARUCHA S.P. (J)

CITATION:  1996 SCC  (4) 459        JT 1996 (5)   420  1996 SCALE  (4)179

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The respondent,  while working  as  Accountant  in  the Telephones  Department   in  Rajasthan   was   charged   for fabrication of  record and was dismissed from service on May 9, 1973. After dismissal of the departmental appeal, he laid the suit  in 1980  seeking declaration that the order of his dismissal was illegal. The appellants have taken, apart from others, limitation as one of the objections. The trial Judge while dismissing  the suit  on the ground of limitation, had recorded the  findings that  enquiry contemplated  under the Rules was  not properly  conducted and  that therefore,  his dismissal  from   service  was   not  correct  in  law.  The respondent carried the matter in appeal. The appellant Court set aside  the order  which  was  confirmed  in  the  second appeal. Thus this appeal by special leave.      The only  question  is:  whether  the  suit  is  within limitation?  Article   113  of   the  Limitation  Act,  1963 prescribes three years when the right to sue accrues for the purpose of  enforcing the  right. Since the right to sue had accrued to  the respondent  on May  9, 1973  and the date of dismissal of the departmental appeal is August 26, 1974, the later date  would provide limitation and would be considered to be  the date  from which  the running  of the  limitation began, viz.,  August 26.  1974. Once  the limitation  starts running its  due course,  on expiry of three years from that date, the  right to  seek remedy  to the respondent is lost. The High  Court has  upheld the  judgment of  the  appellate Court on  the finding  that from  the inception the order of dismissal was  not made  in accordance  with law  and as the respondent had  not filed  any cross-objection against those findings recorded  by the  trial Court, it would not be open to him to object to the decree for reinstatement. We find no force in  the reasoning  of the  High Court or the appellate Court. It   is  true that  this court  in  State  of  Madhya Pradesh v.  Syed Qamarali  [1967 SLR  2281 ],  had  held  in

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paragraph  20,  relied  upon  by  learned  counsel  for  the respondent, that  once the  order of  dismissal is  found to have no  legal existence,  it  was  not  necessary  for  the respondent to have the orders set aside by a court. It would be seen  that in that case the respondent was prosecuted for the offence  and he  was acquitted  on merits.  The order of dismissal was  founded upon  the very  same misconduct which was subject-matter  of the prosecution. Since the respondent therein was acquitted on merits, there was no foundation for dismissal  of  the  respondent  from  service.  Under  those circumstances, the  order was  considered to be non-existent and, therefore, it was held that he was not required to file separate suit  for setting aside the order of dismissal. The ratio of  the said  decision has no application to the facts in a  case where  the departmental enquiry was conducted and he was  found to have committed misconduct as provided under the Rules.  The limitation,  therefore, would  begin to  run from the  date of  dismissal from  service. If the dismissed delinquent  employee   does  not  avail  of  the  remedy  by impugning the  order of dismissal within limitation, then it would not  be open  to him  to challenge in the sit that the order of  dismissal is  in violation  of the  Rules, that he could ignore the order and then file the suit at any time at his  pleasure.  If  that  contention  is  given  acceptance, startling   consequences    would   follow.    Under   these circumstances, this  Court did  not intend  to lay down that even in  a case of dismissal after due enquiry and where the order is allowed to become final, it would be ignored by the delinquent employee  and contended  that the limitation does not stand  as a  bar to  him. Moreover,  the  interpretation given by  this Court  is based  upon paragraph  241  of  the Police Regulations. The ratio therein would be considered to be applicable to the facts in that case.      The  appeal   is  accordingly   allowed,  but,  in  the circumstances, without costs.      Since pursuant  to the interim directions given by this Court the respondent has been reinstated, the salary paid to him during  his continuance in service is directed not to be recovered.