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 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 Govern-
ment 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 circum-
stances 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 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 departmen-
tal 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 therefrom 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 therefrom by an appeal court and
the order dismissing the revision petition by
a yet higher court, ..... because the de-
partmental
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
therefrom or even in the order passed in
revision, it does so only for certain pur-
poses, 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 Jen-
kins 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 be-
comes 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 commence-
ment of the period of limitation as prescribed
in the relevant statute and if the
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 consider-
ations hedged round with hairsplitting techni-
calities ..... 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 pre-
cious rights and privileges that were not
there before. Why should they be viewed nar-
rowly? 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 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 ques-
tion 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 Gov-
ernment 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 retro-
spective effect to that Article. The argument
that the order of dismissal merged in the
order passed in appeal therefrom 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 Constitu-
tion. 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
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 authori-
ty 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 authori-
ty 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 appel-
late 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 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 thereunder 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 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 rele-
vant service rules as to redressal of griev-
ances,
(a) if a final order has been made
by the Government or other authority or offi-
cer 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 appli-
cant 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 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 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.