S.Kumar Vs. The Institute of
Constitutional and Parliamentary Studies an [1983] INSC 137 (29 September 1983)
PATHAK, R.S.
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 up to 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 up to 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. [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]
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
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 up to 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 injection
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 up to 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.
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.
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