S.S. Rathore
Vs. State of Madhya Pradesh [1989] INSC 268 (6 September 1989)
Misra
Rangnath Misra Rangnath Venkataramiah, E.S. (Cj) Mukharji, Sabyasachi (J) Oza,
G.L. (J) Ray, B.C. (J) Singh, K.N. (J) Natrajan, S. (J)
CITATION:
1990 AIR 10 1989 SCR Supl. (1) 43 1989 SCC (4) 582 JT 1989 (3) 530 1989 SCALE
(2)510
ACT:
Limitation
Act, 1963--First Schedule--Articles 58 and 113--'When the right to sue or cause
of action first accrues'--Interpretation of--Held to be not from the date of
original adverse order but from the date when the order on the statutory appeal
is made or six months from the date of preferring statutory appeal--Statutory
appeals to be disposed of expeditiously--Ordinarily a period of three to six
months to be the outer limit.
HEAD NOTE:
The
plaintiff-appellant was dismissed from service by the Collector on 13.1.1966.
His departmental appeal was dismissed by the Divisional Commissioner on
31.8.1966.
Thereupon
the appellant instituted a suit on 30.1.1969 asking for a declaration that the
order of dismissal was inoperative and that he continued to be in service. The
suit was dismissed by the trial court and that order was upheld by the
appellate courts. In dismissing the suit the courts below accepted the defence
plea that it had been filed beyond the period of limitation prescribed
therefore under Article 58 of the first Schedule of the Limitation Act.
Hence
this appeal. This appeal initially came up for hearing before a Division Bench
of this Court. At the hearing reliance was placed before a decision of this
Court in Sita Ram Goel v. The Municipal Board, Kanpur & Ors., [1959] SCR
1148 in support of the contention that the suit was barred by limitation. The
Division Bench took the view that the decision of this Court rendered by five
Judge Bench in Sita Ram Goel's aforesaid required reconsideration. This is how
the appeal has come up before a Seven Judge Bench. The question that fell for
determination by the Court was 'When was the right to sue first accrued' to the
appellant i.e. whether from the date when the original adverse order of
dismissal was passed against him or when the departmental/statutory appeal was
finally disposed of. The appellant's contention is that the original order
having merged in the final order whereby his departmental appeal was disposed
of, the right to sue accrued from that date and on this reckoning, the suit
filed by him was within time.
44
Allowing the appeal and remanding the matter to trial Court, this Court,
HELD:
Powers of adjudication ordinarily vested in courts are being exercised under
the law by tribunals and other constituted authorities. [51H] In respect of
many disputes the jurisdiction of the court is now barred and there is a
vesting of jurisdiction in tribunals and authorities. That being the position,
there is no justification for the distinction between courts and tribunals in
regard to the principle of merger. [51H; 52A] It must be held in the instant case,
that the order of dismissal made by the Collector did merge into the order of
the Divisional Commissioner when the appellant's appeal was dismissed on
31.8.1966. [52B] The cause of action first arises when the remedies available
to the public servant under the relevant service Rules as to redressal are
disposed of. [53B] The cause of action shall be taken to arise not from the
date of the original adverse order but on the date when the order of the higher
authority where a statutory remedy is provided entertaining the appeal or
representation is made.
Where
no such order is made, though the remedy has been availed of, a six months'
period from the date of preferring of the appeal or making of the
representation shall be taken to be the date when cause of action shall be
taken to have first arisen. [53H; 54A] In every such case until the appeal or
representation provided by a law is disposed of, accrual of the cause of action
shall first arise only when the higher authority makes its order on appeal or
representation and where such order is not made on the expiry of six months
from the date when the appeal was filed or representation was made. [54D] Redressal
of grievances in the hands of the departmental authorities taken an unduly long
time. That is so on account of the fact that no attention is ordinarily
bestowed over these matters and they are not considered to be governmental
business of substance. This approach has to be deprecated and authorities on
whom power is vested to dispose of appeals and revisions under the service
Rules must dispose of such matters as expeditiously as possible. [52G-H] 45 Ordinarily,
a period of three to six months should be the outer limit. That would
discipline the system and keep the public servant away from a protracted period
of litigation. [53A] Sita Ram Goel v. The Municipal Board, Kanpur & Ors.,
[1959] SCR 1148, overruled.
Madan Gopal
Rungta v. Secretary to the Government of Orissa, [1962] Supp. 3 SCR 906,
followed.
Pierce
Leslie Co. Ltd. v. Violet Ouchterlony Wapshare & Ors., and vice verse,
[1969] 3 SCR 203; State of Uttar Pradesh v. Muhammad Nooh, [1958] SCR 595;
Collector of Customs, Calcutta v. East India Commercial Co. Ltd., [1963] 2 SCR
563; Somnath Sahu v. State of Orissa & Ors., [1969] 3 SCC 384; C.I.T.v. Amrit
Lal Bhagilal & Co., [1959] SCR 713 and Raghuvir Jha v. State of Bihar &
Ors., [1986] Suppl. SCC 372, referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 207 of 1984.
From
the Judgment and Order dated 12.3. 1982 of the Madhya Pradesh High Court in Misc
Civil Case No. 539 of 1981.
Ranjit
Kumar and Subhash Sharma for the Appellant.
Prithvi
Raj and S.K. Agnihotri for the Respondent.
The
Judgment of the Court was delivered by RANGANATH MISRA, J. This appeal is by
special leave and is directed against the judgment of the High Court of Madhya
Pradesh by which the High Court has in second appeal upheld the dismissal of
the plaintiff's suit on the plea of limitation.
The
plaintiff, a Government servant of Madhya Pradesh, was dismissed from service
by the Collector on 13th of January, 1966. He preferred an appeal to the
Divisional Commissioner and that appeal was dismissed on 31.8.1966. The order
of dismissal of the appeal was communicated to the plaintiff on 19.9.1960. The
plaintiff gave notice under s.80 of the Code of Civil Procedure on 17.6.1969
and filed his suit on 30th of September, 1969, asking for a declaration that
the order of dismissal was inoperative and he continued to be in service. This
46 suit has been dismissed in the Courts below on acceptance of the defence
plea that it had not been filed within three years from the date when the cause
of action first arose, as required under Article 58 of the First Schedule of
the Limitation Act, 1963.
When
this appeal came up for hearing before a Division Bench, reliance was placed on
the decision of this Court in Sita Ram Goel v. The Municipal Board, Kanpur
& Ors., [1959] SCR 1148 in support of the contention that the suit was
barred by limitation. The Division Bench extracted a passage from Goel's
judgment where it said:
'The
result is no doubt unfortunate for the appellant, because the trial court found
in his favour in regard to his plea of wrongful dismissal. If he had only
brought the suit within the period prescribed by section 326 of the Act, he
might possibly have got some relief from the Court. He, however, chose to wait
till the decision of the State Government on his appeal and overstepped the
limit of time to his own detriment. We are unable to come to any other
conclusion than the one reached above and the appeal must, therefore, stand
dismissed; but in the peculiar circumstances of the case we make no order as to
costs', and observed:
"Such
unfortunate results should be avoided, if it is possible to do so. We are of
the view that the decision in Sita Ram Goel's case which has been decided by a
Bench of five Judges requires to be reconsidered ..... " (See 1988 Suppl.
SCC 522) That is how this appeal has come before the Seven Judge Bench.
The
plaintiff's suit was one to obtain a declaration that the order of dismissal
was bad and he continued to be in service. To such a suit the Courts below have
rightly applied Article 58 of the First Schedule of the Limitation Act. That
Article runs thus:
"58.
To obtain any Three When the right to other declaration. years sue first
accrues." Appellant's counsel placed before us the residuary Article 113
and has referred to a few decisions of some High Courts where in a 47 situation
as here reliance was placed on that Article. It is unnecessary to refer to
those decisions as on the authority of the judgment of this Court in the case
of Pierce Leslie & Co. Ltd. v. Violet Ouchterlony Wapshare & Ors. vice
versa, [1969] 3 SCR 203, it must be held that Article 113 of the Act of 1963,
corresponding to Article 120 of the old Act, is a general one and would apply
to suits to which no other Article in the schedule applies.
The
fate of this appeal, therefore, rests upon the finding as to when the right to
sue first accrued. All the three Courts have accepted the position that on
1.3.1966 when the order of dismissal was made by the Collector, the right to sue
first accrued. Admittedly, the suit was not filed within a period of three
years from that date. The appeal was dismissed on 31.8.1966. The sixty days'
time spent for complying with the requirement of notice under s. 80 of the Code
of Civil Procedure was available to the plaintiff in addition to the period of
three years. If the date, therefore, counts, from the date of the appellate
order, the suit would be within time.
In Goel's
case the question of merger of the order of the lower authority in the order of
the higher authority was considered. Adverting to this aspect, Bhagwati, J. who
spoke for the Court, said:
"The
initial difficulty in the way of the appellant, however, is that departmental
enquiries even though They culminate in decisions on appeals or revision cannot
be equated with proceedings before the regular courts of law." Reliance
was placed on the observations of this Court in State Uttar Pradesh v. Mohammad
Nooh, [1958] SCR 595, where it has been said:
....
an order of dismissal passed on a departmental enquiry by an officer in the
department and an order passed by another officer next higher in rank
dismissing an appeal there from and an order rejecting an application for
revision by the head of the department can hardly be equated with any propriety
with decrees made in a civil suit under the Code of Civil Procedure by the
Court of first instance and the decree dismissing the appeal there from by an
appeal court and the order dismissing the revision petition by a yet higher
court, ..... because the departmental 48 tribunals of the first instance or on
appeal or revision are not regular courts manned by persons trained in law
although they may have the trapping of the courts of law ,' and the Court
proceeded to say:
"The
analogy of the decisions of the courts of law would, therefore, be hardly
available to the appellant." Alternately, the Court also examined the
question as to whether when the appeal of the appellate court affirming the
decree of the trial court was made, the original decree had ceased to be
operative. Bhagwati, J. quoted with approval another part of the judgment in Moharnmad
Nooh's case, where it was said:
"In
the next place, while it is true that a decree of a court of first instance may
be said to merge in the decree passed on appeal there from or even in the order
passed in revision, it does so only for certain purposes, namely, for the
purposes of computing the period of limitation for execution of the decree as
in Batuk Nath v. Munni Dei, 41 Indian Appeals 104, or for computing the period
of limitation for an application for final decree in a mortgage suit as in Jowad
Hussain v. Gendan Singh, 53 Indian Appeals 197. But as pointed out by Sir
Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Soid
v. Pirthichand Lal, 40 indian Appeals 52, whatever be the theory under other
systems of law, under the Indian law and procedure an original decree is not
suspended by the presentation of an appeal nor is its operation interrupted
where the decree on appeal is merely one of dismissal. There is nothing in the
Indian law to warrant the suggestion that the decree or order of the court or
tribunal of the first instance becomes final only on the termination of all
.proceedings by way of appeal or revision.
The
filing of the appeal or revision may put the decree or order in jeopardy but
until it is reversed or modified it remains effective.' Bhagwati, J. then said:
"The
original decree being thus operative what we are really concerned with is the
commencement of the period of limitation as prescribed in the relevant statute
and if the 49 statute prescribes that it commences from the date of the accrual
of the cause of action there is no getting behind these words in spite of the
apparent inequity of applying the same." In Mohammad Nooh's case the
question for consideration was whether the impugned order in the proceedings
under Article 226 of the Constitution before the High Court was an order prior
to the Constitution and, therefore, the High Court could not exercise its
jurisdiction or was it one pending at the commencement of the Constitution and
the revisional order being after the Constitution came into force, the writ
petition would be maintainable. The majority, as also Bose, J. who otherwise
differed, agreed that jurisdiction under Article 226 of the Constitution was
not retrospective. The majority opinion, however, was that it would not be
correct to say that the order of dismissal made on April 20, 1948, merged in
the appellate order dated May 7, 1949, and both the orders in due course merged
in the revisional order of April 22, 1950. The original of dismissal was
operative on its own strength. Bose, J. however, observed:
"I
see no reason why any narrow or ultra technical restrictions should be placed
on them. Justice should, in my opinion, be administered in our Courts in a
common-sense liberal way and be broad-based on human values rather than on
narrow and restricted considerations hedged round with hairsplitting technicalities
..... The final order was passed after the Constitution on April 22, 1950. It
is true that if it had been passed before the Constitution came into force on
January 26, 1950, the petitioner would have had no remedy in the Courts. But
the Constitution breathed fresh life into this land and conferred precious
rights and privileges that were not there before. Why should they be viewed
narrowly? Why should not that which would have been regarded as still pending
for present purposes, if all had been done after the Constitution, be construed
in any different way when the final act, which is the decisive one for these
purposes, was done after it?" The problem in Mohammad Nooh's case,
therefore, was different from what was for consideration in Goel's case.
In Madan
Gopal Rungta v. Secretary to the Government of Orissa, [1962] Suppl. 3 SCR 906,
a Constitution bench of this Court was 50 examining the correctness of the
finding of the High Court that it had no jurisdiction to entertain a petition
under Article 226 of the Constitution as the revisional order was that of
Government of India located outside its territorial jurisdiction. Rungta's case
took into consideration the judgment in Mohammad Nooh's case and stated:
"We
are of opinion that the principle of Mohammad Nooh's case cannot apply in the
circumstances of the present case. The question there was whether the High
Court could issue a writ under Art. 226 in respect of a dismissal which was
effective from 1948, simply because the revision against the order of dismissal
was dismissed by the State Government in April, 1950 after the Constitution
came into force. It was in these circumstances that this Court held that the
dismissal having taken place in 1948 could not be the subject matter of an
application under Art. 226 of the Constitution for that would be giving
retrospective effect to that Article. The argument that the order of dismissal
merged in the order passed in appeal there from and in the final order of
revision was repelled by this Court on two grounds. It was held, firstly, that
the principle of merger applicable to decrees of courts would not apply to
orders of departmental tribunals, and, secondly, that the original order of
dismissal would be operative on its own strength and did not gain greater
efficacy by the subsequent order of dismissal of the appeal or revision, and
therefore, the order of dismissal having been passed before the Constitution
would not be open to attack under Art. 226 of the Constitution. We are of
opinion that the facts in Mohd. Nooh's case were of a special kind and the
reasoning in that case would not apply to the facts of the present case."
The view expressed by Wanchoo, J. in Rungta's case meets with our approval. In Rungta's
case this Court ultimately held that the order of the State Government had merged
into the order of the Central Government and the High Court was, therefore,
right in its view that it had no jurisdiction.
The
next Constitution Bench decision of this Court is that of Collector of Customs,
Calcutta v. East India Commercial Co. Ltd., [1963] 2 SCR 563 where this Court
observed:
"The
question, therefore, turns on whether the order of 51 the original authority
becomes merged in the order of the appellate authority even where the appellate
authority merely dismisses the appeal without any modification of the order of
the original authority. It is obvious that when an appeal is made, the
appellate authority can do one of three things, namely, (i) it may reverse the
order under appeal, (ii) it may modify that order, and (iii) it may merely
dismiss the appeal and thus confirm the order without any modification. It is
not disputed that in the first two cases where the order of the original
authority is either reversed or modified it is the order of the appellate
authority which is the operative order and if the High Court has no
jurisdiction to issue a writ to the appellate authority it cannot issue a writ
to the original authority. The question therefore is whether there is any
difference between these two cases and the third case where the appellate
authority dismisses the appeal and thus confirms the order of the original
authority. It seems to us that on principle it is difficult to draw a
distinction between the first two kinds of orders passed by the appellate
authority and the third kind of order passed by it. In all these three cases
after the appellate authority has disposed of the appeal, the operative order
is the order of the appellate authority whether it has reversed the original
order or modified it or confirmed it. In law, the appellate order of
confirmation is quite as efficacious as an operative order as an appellate
order of reversal or modification." A 3-Judge Bench decision in the case
of Somnath Sahu v. The State of Orissa & Ors., [1969] 3 SCC 384 is an
authority in support of the position as accepted by the two Constitution Bench
judgments referred to above. There, it was held in the case of a service
dispute that the original order merged in the appellate order of the State
Government and it is the appellate decision which subsisted and became
operative in law and was capable of enforcement. That judgment relied upon
another decision of this Court in support of its view being C.I.T .v. Amrit Lal
Bhagilal & Co., [1959] SCR 713.
The
distinction adopted in Mohammad Nooh's case between a court and a tribunal
being the appellate or the revisional authority is one without any legal
justification. Powers of adjudication ordinarily vested in courts are being
exercised under the law by tribunals and other constituted authorities. In
fact, in respect of many disputes the 52 jurisdiction of the court is now
barred and there is a vesting of jurisdiction in tribunals and authorities.
That being the position, we see no justification for the distinction between
courts and tribunals in regard to the principle of merger. On the authority of
the precedents indicated, it must be held that the order of dismissal made by
the Collector did merge into the order of the Divisional Commissioner when the
appellant's appeal was dismissed on 31.8. 1966.
In
several States the Conduct Rules for Government servants require the
administrative remedies to be exhausted before the disciplinary orders can be
challenged in court.
Section
20(1) of the Administrative Tribunals Act, 1985 provides:
"20(1).
A Tribunal shall not ordinarily admit an application unless it is satisfied
that the applicant had availed of all the remedies available to him under the
relevant service rules as to redressal of grievances." The Rules relating
to disciplinary proceedings do provide for an appeal against the orders of
punishment imposed on public servants. Some Rules provide even a second appeal
or a revision. The purport of s. 20 of the Administrative Tribunals Act is to
give effect to the Disciplinary Rules and the exhaustion of the remedies
available there under is a condition precedent to maintaining of claims under
the Administrative Tribunals Act. Administrative Tribunals have been set up for
Government servants of the Centre and several States have already set up such
Tribunals under the Act for the employees of the respective States. The law is
soon going to get crystallised on the line laid down under s. 20 of the
Administrative Tribunals Act.
In
this background if the original order of punishment is taken as the date when cause
of action first accrues for purposes of Article 58 of the Limitation Act, great
hardship is bound to result. On one side, the claim would not be maintainable
if laid before exhaustion of the remedies; on the other, if the departmental
remedy though availed is not finalised within the period of limitation, the
cause of action would no more be justiciable having become barred by
limitation. Redressal of grievances in the hands of the departmental
authorities take an unduly long time. That is so on account of the fact that no
attention is ordinarily bestowed over these matters and they are not considered
to be governmental business of substance. This approach has to be deprecated
and authorities on whom power is vested to dispose of appeals and revisions under
the Service Rules must dispose of such matters as 53 expeditiously as possible.
Ordinarily, a period of three to six months should be the outer limit. That
would discipline the system and keep the public servant away from a protracted
period of litigation.
We are
satisfied that to meet the situation as has arisen here, it would be
appropriate to hold that the cause of action first arises when the remedies
available to the public servant under the relevant service Rules as to redressal
are disposed of.
The
question for consideration is whether it should be disposal of one appeal or
'the entire hierarchy of reliefs as may have been provided. Statutory guidance
is available from the provisions of sub-ss. (2) and (3) of s. 20 of the
Administrative Tribunals Act. There, it has been laid down:
"20(2).
For the purposes of sub-section (1), a person shall be deemed to have availed
of all the remedies available to him under the relevant service rules as to redressal
of grievances, (a) if a final order has been made by the Government or other
authority or officer or other person competent to pass such order under such
rules, rejecting any appeal preferred or representation made by such person in
connection with the grievances; or (b) where no final order has been made by
tee Government or other authority or officer or other person competent to pass
such order with regard to the appeal preferred or representation made by such
person, if a period of six months from the date on which such appeal was
preferred or representation was made has expired.
(3)
For the purposes of sub-sections (1) and (2), any remedy available to an
applicant by way of submission of a memorial to the President or the Governor
of a State or to any other functionary shall not be deemed to be one of the
remedies which are available unless the applicant had elected to submit such
memorial." We are of the view that the cause of action shall be taken to
arise not from the date of the original adverse order but on the date when the
order of the higher authority where a statutory remedy is provided 54
entertaining the appeal or representation is made and where no such order is
made, though the remedy has been availed of, a six months' period from the date
of preferring of the appeal or making of the representation shall be taken to
be the date when cause of action shall be taken to have first arisen. We,
however, make it clear that this principle may not be applicable when the
remedy availed of has not been provided by law. Repeated unsuccessful representations
not provided by law are not governed by this principle.
It is
appropriate to notice the provision regarding limitation under s. 21 of the
Administrative Tribunals Act.
Sub-section
(1) has prescribed a period of one year for making of the application and power
of condonation of delay of a total period of six months has been vested under
subsection (3). The Civil
Court's jurisdiction
has been taken away by the Act and, therefore, as far as Government servants
are concerned, Article' 58 may not be invocable in view of the special
limitation. Yet, suits outside the purview of the Administrative Tribunals Act
shall continue to be governed by Article 58.
It is
proper that the position in such cases should be uniform. Therefore, in every
such case only when the appeal or representation provided by law is disposed
of, cause of action shall first accrue and where such order is not made, on the
expiry of six months from the date when the appeal was-filed or representation
was made, the right to sue shall first accrue.
Submission
of just a memorial or representation to the Head of the establishment shall not
be taken into consideration in the matter of fixing limitation.
In
view of what we have said above, Goel's case must be taken to have not been
correctly decided.
Reliance
was placed by appellant's learned counsel on a recent decision of a Two Judge
Bench in the case of Raghubir Jha v. State of Bihar & Ors., [1986] Suppl.
SCC 372. The conclusion reached is in accord with what we have held but the
legal position was not at all referred to or examined.
It is
unnecessary to make any further reference to that judgment.
Now
coming to the facts of the present appeal. Since the claim has been dismissed
on the plea of limitation and our conclusion is that the suit was within time,
the judgments of the trial Court, the First 55 Appellate Court and the High
Court are set aside and the matter is remitted to the trial Court for disposal
in accordance with law. Too long a period has now intervened between the dismissal
of the suit and our order of remand.
We,
therefore, direct the learned trial Judge to take all effective steps open to
him in law to ensure that the suit is disposed of finally before the 15th of
December, 1989.
Costs
shall abide the event.
Y.Lal.
Appeal allowed.
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