1. This transfer Application has been registered on receipt of the Title Appeal No. 29/93 from the Court of II Additional District and Sessions Judge, Darbhanga. The Title Appeal No. 29/93 was preferred by the Plaintiff applicant against the judgment dated 29.1.77 and decree dated 4.2.77 passed by the II Additional Munsif, Darbhanga, in Title Suit No. 234/93 /11/75 dismissing the prayer of the plaintiff-Applicant for declaration of his dismissal order as void, illegal and mala fide and for his reinstatement in the service.
2. The case has a chequred career. The plaintiff-applicant, Kameshwar Jha, was appointed as a Postal Clerk in Darbhanga Division on 28.12.1954. A criminal case was lodged against him for booking parcel of contraband articles on 6.7.59, and he was put under suspension. In this criminal case, a final form was submitted, but the suspension order passed against him was not revoked. Subsequently, an another criminal case was lodged against him with the allegation of submitting forged marks-sheet for getting appointment by the Inspector of post offices on 10.4.1960. A departmental proceedings was also drawn against him, which led to the impugned dismissal order dated 28.7.1960. It appears that the plaintiff-applicant filed appeal against the order of dismissal to the Director of Postal Services, Patna, on 27.10.1960, and, subsequently, an additional memorandum of appeal also on 29.10.1963, after acquittal in the aforesaid criminal case on 27.6.1962. The appeal of the plaintiff-applicant was rejected by the appellate authority, vide his order dated 26.11.64. Thereafter, he (the plaintiff-applicant) filed the aforesaid title Suit No. 234/67 No.11/75 on 4.12.1967, in the Court of Munsif, Darbhanga, which was dismissed on 29.1.77, giving rise to the TA-24/93.
2A. It appears that the learned Munsif by his aforesaid judgment and decree held, (vide issue No. 5) that the applicant- plaintiff had not been given a reasonable and adequate opportunity to defend himself in the departmental proceeding, and as such, the dismissal order based on such proceedings was not legal and valid. Accordingly, the issue was decided in favour of the plaintiff-applicant. In other words, the Suit was decided in favour of the plaintiff (applicant) on merit. But, the learned Munsif found and held (vide the issue No. 3) that the Suit was hit by limitation as he (plaintiff-applicant) had not filed the Suit within the period of six years from the date of order of dismissal i.e.
from 28.7.1960. According to the learned Munsif, in a Suit against wrongful dismissal, limitation starts from the date of order of the dismissal, (limitation starts from the date of order of the dismissal) and not from the date when the appeal before the departmental authority was dismissed. The learned Munsif has relied upon the rulings of the Hon'ble Supreme Court, as reported in AIR 1958 SC page 1036, of the Hon'ble Punjab High Court, as reported in 1966, page 109, and of the Hon'ble Madhya Pradesh High Court, as reported in AIR 1968 page 212, in taking the aforesaid view. Accordingly, the suit was dismissed.
3. The plaintiff-applicant, being aggrieved by the aforesaid judgment of the learned Additional Munsif, filed a Title Appeal No. 29 of 1977, before the District Judge, Darbhanga on 28.3.1977, challenging the finding of the learned Munsif on limitation (as at issue No. 3). It is stated that the limitation for filing the Suit would start from the date of the final order passed in Appeal by the plaintiff applicant before the Departmental authority and not from the date of dismissal of the plaintiff-applicant from service. It is said that the learned Munsif has not correctly appreciated the legal position on the basis of the aforesaid authority referred to in his judgment, which has occasioned the miscarriage of justice.
Respondents-department has not filed cross-objection or cross appeal against the finding of the learned Munsif as at issue No. 5, on the merit of the case, whereby and whereunder the learned Munsif has held that the plaintiff applicant was not given reasonable opportunity in the departmental proceeding. No written statement appears to have been filed before this Tribunal, controverting the aforesaid finding at issue No. 5 as recorded by the learned Munsif. Therefore, the aforesaid finding of the learned Munsif on the merit of the case is final and conclusive.
5. The points for consideration are; firstly, as to whether the finding of the learned Munsif (vide Issue No. 3) that the limitation period in case of wrongful dismissal starts from the date when the order of dismissal is passed by the Disciplinary authority and not from the date of the order of the appellate authority is valid and proper, and, secondly, as to whether the plaintiff (applicant) is entitled to any relief, if it is found that the Suit has wrongly been held hit by limitation.
6. So far the first point is concerned, it appears that the plaintiff applicant was dismissed on 28.7.1960. He filed representation before the Director of Postal Services on 27.10.1960, i.e. to say, within three months period of limitation as prescribed under the Central Civil Service (Classification, Control and Appeal) Rules, 1957. The plaintiff-applicant further filed the additional written statement before the appellate authority on 29.10.63, on being acquitted in Criminal case on 27.6.62. The appeal of the plaintiff applicant was rejected by the appellate authority on 26.11.64 with communication to him on 5.12.64. Thereafter, the plaintiff- applicant filed the aforesaid Title Suit No. 234/67 on 4.12.67, with prayer for declaration that his dismissal from service was void and illegal, and also, for his reinstatement in the service. The finding of the learned Munsif on the aforesaid factual position is uncontroverted. The learned Munsif applied Article 120 of the Old Limitation Act, which is a residuary article, prescribing the period of 6 years limitation for filing suit from the date when the right to sue accrues. Accordingly, relying upon the decision of the Hon'ble Supreme Court, as reported in AIR 1958 SC 1036, and also, on the rulings of the Hon'ble Punjab High Court, as reported in AIR 1966 Pb. 109, and of the Hon'ble Madhya Pradesh High Court, as reported in AIR 1968 page 212, held that the limitation period had started from the date of the dismissal, i.e. from 28.7.60, and the Suit had been filed on 4.12.67, i.e. to say, beyond six years period of limitation. Hence, the suit was dismissed. We may profitably extract paras 21 & 22 of the judgment of the learned Munsif passed in the aforesaid Title Suit No. 234/67 /11/75 as hereunder: "(21). As against this learned lawyer on behalf of defendant has submitted that in the present case starting point of limitation would be the Original order of dismissal and not the dismissal of the appellate order. In support of his submission placed his reliance on three decisions. Those decisions are reported in AIR 1958 SC 1036, AIR 1966 Punjab 109 and AIR 1968 Madhya Pradesh 212.
In the aforesaid 1958 decision our lordships of the Hon'ble Supreme Court held the view that in a suit for wrongful dismissal limitation starts from the date of order of the dismissal and not from the date when the appeal was dismissal. The same view has been propounded by our lordships of the Punjab High Court in the aforesaid decision of 1966. In the aforesaid decision of 1968. Their Lordships of the Honourable High Court of Madhya Pradesh constituting a Division Bench have held the view that "if a cause of action arises on the passing of an order by an authority then that cause of action is not suspended or cancelled by the mere filing of an appeal against that, unless there is something in the provision regulating the appeal suspending the order appealed against or rendering it in effecting by reason of filing the appeal. In the present case also I find that there is provisions of appeal against the dismissal order before the proper authority, in the Central Civil Services (Classification, Control and Appeal) Rules, 1957. But there is no such provision in those rules that by mere filling of the appeal the order appealed against would be kept in abeyance or the some would be rendered ineffective.
(22). Under the stated circumstances and especially in view of the aforesaid principles enunciated by our lordships in the above referred decisions, cited by learned lawyer of the defendant, I am of the opinion that the present suit, being filed after more than six years from the date of dismissal, is time barred. Hence, this issue is decided accordingly and against the plaintiff." 7. Thus, according to the learned Munsif, the starting point for limitation in case of wrongful dismissal is the order passed by the disciplinary authority, and if there is provision in the relevant service Rules for filing the appeal against the dismissal order, and also, for keeping the order/appealed against in abeyance, in that case only, the starting point for limitation would be the date of appellate order. Learned Munsif held that there was no provision in the Central Civil Service (Classification, Control and Appeal) Rules, 1957, that by merely filing an appeal, the order appealed against would be kept in abeyance, and, therefore, the period of limitation would start running from the date of order of dismissal passed by the disciplinary authority. The Hon'ble Punjab High Court and the Hon'ble Madhya Pradesh High Courts followed the aforesaid ruling of the Hon'ble Supreme Court, as reported in AIR 1958 SC 1036, S.K. Goel v. Municipal Board, Kanpur, 8. It appears that the aforesaid judgment of the Hon'ble Supreme Court was rendered by five Judges Bench on 19.8.1958. In the case before the Hon'ble Supreme Court, the plaintiff, who was a municipal overseer, was dismissed by a Resolution of the Municipal Board on 5.3.1951. On 19.3.51, the order of dismissal was communicated to the plaintiff and in appeal to the Government against the order on 7.4.51, the Government dismissed his appeal on 7.4.1952, and its order was communicated to the plaintiff on 8.4.52, (and its order was communicated to the plaintiff on 8,4.52 on 8.12.52, he filed a suit for. compensation for wrongful dismissal. It was held that the suit was barred by limitation. Prima facie the period of six months provided by Sub-section (3) of Section 326 would commence to run after the accrual of the cause of action and the cause of action for the suit of the plaintiff was his wrongful dismissal. The resolution dismissing him from service was passed on 5.3.1951, and communicated to him on 19.3.1951, and even extending the period of limitation by the period of notice required under Sub-section (1) of Section 326, his suit filed on 8.12.1952, was hopelessly beyond time. His suit would, therefore, be barred unless it can be said that the cause of action accrued on 8.4.1952, when the order dismissing his appeal was communicated to him by the Government.
8A. The learned Munsif delivered the aforesaid judgment in the title Suit on 4.2.77. But, in the meantime, the new Limitation Act, 1963, came into force with effect from 1.1.1964. The Article 113 of the new Limitation Act, corresponds to the old Article 120, and under this Article, in a suit for which no period of limitation is provided elsewhere in the said schedule, a limitation of three years is provided from the date when the right to sue accrues. As said above, the right to sue in the instant case has been held to have been accrued on the date of dismissal on 28.7.1960, and this was the legal position as settled by the Hon'ble Supreme Court at the time the learned Munsif rendered the aforesaid judgment holding the suit hit by limitation.
9. However, the learned counsel for the applicant has brought to our knowledge various rulings of the different High Courts, and also, of the Hon'ble Supreme Court, as reported in 1989 SCC 582=1990(1) SLJ 98 (SC), 5.5. Rathore v. Madhya Pradesh, which has been rendered by a Bench of 7 Judges of the Hon'ble Supreme Court, and contended that the aforesaid ruling of the Hon'ble Supreme Court in Gael's case has been over-ruled, and the legal position as it stands today is that suit for declaration against the order of dismissal from service is covered under Article 58 of the Limitation Act, 1963, and not under Article 113, and the right to sue first accrues not when the original order was passed by the dismissing authority, but when the order was finally disposed of any the higher authority on appeal or representation made by aggrieved employee in exhaustion of the statutory remedy, and where no such final order is made on expiry of six months from the date of appeal or representation. The Hon'ble Supreme Court in this rulings has further held that there is no justification for distinction between Court and Tribunal, being appellate or revisional authority in regard to the principle of merger while taking notice of the provision of Limitation under the Administrative Tribunals Act, 1985.
10. In the aforesaid case before the Hon'ble Supreme Court, the plaintiff, a Government servant of Madhya Pradesh, was dismissed from service on January 13, 1966. He preferred an appeal to the Divisional Commissioner and that appeal was dismissed on (sic) 31, 1966 the order of dismissal of appeal was communicated to the plaintiff on September, 1966. The plaintiff gave notice under Section 80 of the CPC on June 17, 1969, and filed his suit on September 13, 1969, asking for a declaration that the order of dismissal was inoperative and he continued to be in service. The Suit was dismissed on acceptance of the defendants 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.
11. In the aforesaid facts and circumstances of the case, overruling the decision of five Judges Bench of the Supreme Court in Goel's case, as relied upon by the learned Munsif, the Hon'ble Supreme Court laid-down the position of law of the point as hereunder; (Vide paras 20, 21, 22 and 23) "20. 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 as 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.
21. It is appropriate to notice the provision regarding limitation under Section 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 vested under Sub-section (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.
22. 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.
23. In view of what we have said above, Gael's case must be taken to have not been correctly decided." 12. It is settled law that an appeal is a continuation of the suit. The suit was filed, as said above, on 4.12.67, and, admittedly, the appellate order was communicated to the applicant on 5.12.64. The date of dismissal is 28.7.1960. If the starting point, in accordance with the aforesaid ruling of the Hon'ble Supreme Court in Rathore's case is taken as 5.12.64, when the rejection order of appellate authority was communicated to the applicant, the Suit was filed within three years period of limitation on 4.12.67. It may be pointed out that the new Limitation Act came into force on 1.1.64, and the rejection order of the appellate authority was communicated to the applicant on 5.12.64.
Therefore, the limitation period as provided under Article 58 of the new Limitation Act appears to be applicable which provides three years period of limitation from the date of cause of action. The cause of action on the basis of the aforesaid ruling of the Hon'ble Supreme Court in Rathaur's case will start to run from 5.12.64, and the Suit having been filed on 4.12.67, is within time. Accordingly, the finding of the learned munsif on the point of limitation does not appear sustainable, and it is held that the suit was not barred by limitation.
13. The aforesaid finding on limitation necessarily leads us to the merit of the case. The applicant was served with a charge memo, with allegation that in order to obtain wrongful employment in the P&T Department while applying on 31.8.54, for service in the department produced a bogus marks-sheet of the matriculation examination, 1947 (Annual) purported to have been issued by the Patna University and copy given by Shri Premthosh Rudhra, Headmaster, North Brook School, Darbhanga on 30.8.54. The inquiry officer was appointed by the Superintendent of Post Offices, Darbhanga on 7.5.1960, who held ex-parte inquiry on 27.5.1960. The inquiry officer has stated in his inquiry report that the then Superintendent of Post Offices, Darbhanga, in course of inquiry against the applicant regarding booking of four insured parcel suspected to have contained Nepali Ganja, heard that the plaintiff-applicant had secured his appointment in the department by producing a bogus marks-sheet. He (Superintendent of Post Offices) made a confidential reference to the Headmaster, North Brook Multi-purpose School, Darbhanga and Registrar, Patna University regarding genuiness or otherwise of the marks-sheet submitted by the plaintiff-applicant with his application for appointment. He was intimated by the Registrar, Patna University that the plaintiff- applicant with Roll No.DR 29(c) had secured total 391 marks, but he (the plaintiff applicant) had submitted a typed marks-sheet purported to have been issued by the Headmaster showing 465 total marks. It appears from the inquiry report that the Headmaster had stated in writing to the first inquiry officer, Shri S.C. Dutta, Inspector of Post Offices, Darbhanga, that the marks-sheet of the year 1947, were not available in his office.
However, he doubted genuiness of the signature of Shri P.T. Rudra, the then Headmaster, on the typed copy of the marks-sheet. Shri P.T. Rudra, the then Headmaster, had also disowned the signature on the marks-sheet and added that it was a forged one. The inquiry officer found that the typed marks-sheet allegedly submitted by the plaintiff applicant did not contain his father's name and the Roll No. assigned to him by the University. It appears that the then Superintendent of Post Offices, Shri T.S.P. Sinha, Darbhanga, had verified from the University the marks-sheet of the plaintiff-applicant with marks-sheet from the University under the instruction of PMG, Bihar Circle and had submitted a verification report. Accordingly, the E.O. came to the finding that the typed copy of the marks-sheet produced by the plaintiff applicant was a bogus marks-sheet which had been filed to secure his appointment in the department. Accordingly, he held the charge proved as submitted the report on 1.6.1960, which resulted into the impugned dismissal order dated 28.7.1960.
14. It appears that the Respondent Department also lodged a criminal case against the plaintiff-applicant on the same charges of submitting forged marks-sheet for securing appointment in the respondents department under Sections 465,471, 417 and 4201.P.C. This criminal case ended in acquittal, vide judgment dated 27.6.1962, passed in G.R. case No. 355/60/No. 154/62 by the Judicial Magistrate 1st Class, Darbhanga.
The judgment of the learned Judicial Magistrate is revealing. It appears from the judgment that the plaintiff applicant had not disputed that the marks-sheet filed on behalf of prosecution was a forged one.
But, his defence was that he (plaintiff applicant) had not filed the forged marks-sheet and he had been falsely implicated in this case at the instance of interested official due to his trade union activities.
The learned Magistrate, after going into detailed discussions of the evidence adduced on behalf of both the parties came to the findings that the prosecution had failed to show that the marks secured by him (i.e. plaintiff applicant) were insufficient for his appointment for which he was a candidate, and that there was some scope for handy trick against him in the office. We may usefully extract below paras 10, 11 & 12 of the judgment of the learned Judicial Magistrate, 1st Class, Darbhanga, which clearly go to show that the prosecution had failed to prove the charge against the plaintiff applicant and the learned Magistrate has positively held that he (the plaintiff applicant) had not filed the forged marks-sheet, and the defence version of replacement of the genuine marks-sheet submitted by him by the forged marks-sheet was a handi work of some clique in the office.
(10) Thus there is no prosecution evidence to show that the accused filed this forged marks-sheet. On the other hand there are cogent circumstances to show that the accused did not file this forged marks sheet. I, thus, find much substance in the defence version that due to some clique in the office the marks-sheet filed by the accused has been replaced by somebody only to land the accused into a lot of troubles. P.W. 1 has admitted that H.C. holds the key of the almirah in which these papers are kept. The possibility for unscrupulous people having access to these papers cannot, in view of the circumstances mentioned above, be completely overruled.
(11) P.W. 3 has admitted that in August, 1959 which he was holding enquiry against the accused, he learnt that the accused had filed a bogus marks-sheet as some clerk passed a remarks to that effect saying that this fact was known to all. That clerk has not been examined. Surprisingly enough P.W. 3 sat over the matter for a week from the date of the receipt of this information. He has admitted that he took action within a week from the receipt of this information. There is some significance in the matter that the clerk made remark to the above affect, though unwarranted at that time.
Perhaps, when the under hand trick had succeeded to replace the marks-sheet submitted by the accused, this casual remarks was made by the clerk to blast matter. In my opinion there is some substance in the defence version that there has been some unfair underhand dealing in the matter against the accused.
(12) In conclusion, I find that the prosecution case is not free from doubt. The accused in the above circumstances must be held entitled to benefit of doubt. I accordingly, find the accused not guilty and acquit him u/s 251A (II) Cr. P.C." 15. The law is well settled that there is no bar for initiating a departmental proceeding during the pendency of the criminal case against the delinquent officer, but, at the same time, it also appears settled that if the charges are on the same count in both the departmental inquiry and in the criminal case, the departmental inquiry should be stayed till the conclusion of the criminal case. A reference of the decision of the Hon'ble Supreme Court as reported in 1993 (3) SLR (sic) (SC) P.J. Sunder Rajan v. Unit Trust of India, may be made in this connection wherein the Hon'ble Supreme Court has held that the departmental proceeding should be stayed till the disposal of the criminal proceeding. Further the Hon'ble Supreme Court in Gulam Mohiuddin v. State of Jammu and Kashmir as reported in 1995 LIC page 210 and also held that in case a criminal case is initiated against the delinquent, the departmental proceeding commenced simultaneously and that if the foundation for the criminal charge in the FIR and the misconduct in show cause notice is the same, the departmental inquiry should be stayed pending criminal trial.
16. In the instant case, we find that the departmental inquiry was held ex-pane within two days, during the pendency of the criminal case. The inquiry report is against the finding of the judicial Court, which on the basis of unimpeachable evidence on record and compelling circumstances, came to the finding that the charges had not been brought home against the plaintiff, applicant, and his defence version had been accepted as correct. In this connection, we may also refer to the finding of the learned munsif in the aforesaid title suit No.234/93/11/75 as hereunder: (Vide concluding sentences of para 14 of the Judgment passed in case No. 234/97) "In the said circumstances I am also of the opinion that the plaintiff was not given a reasonable opportunity to defend himself in the departmental proceeding and as such the dismissal order based on such proceeding cannot be held to be legal and valid." 17. Thus, in view of the aforesaid clear and categorical finding of the Judicial Court on the merit of the case and the legal position explained above, we have no hesitation in holding that the inquiry report in the departmental proceeding is perverse, and is not based on evidence. In fact, pending criminal case on the same changes, the departmental inquiry should not have been initiated and concluded in such hot haste.
18. We may usefully refer to the latest ruling of the Hon'ble S.C. in Capt. M. Paul Authority v. Bharat Gold Mines Ltd. and another, as reported in AIR 1999 SC 1416 in which it is held: "Departmental proceedings and Cr. case--Based on identical sets of facts--Evidence in both proceedings common--Employee acquitted in criminal case--Said order of acquittal can conclude departmental proceedings--Order of dismissal already passed before decision of criminal case liable to be set aside." Accordingly, the impugned dismissal order dated 28.7.60 is not sustainable and deserves to be quashed. It is, accordingly, quashed.
19. Now, the question arises as to what relief the plaintiff-applicant is entitled to in the aforesaid facts and circumstances of the case. At the cost of repetition we may reiterate that the applicant was dismissed on 27.8.1960. He was acquitted in criminal case on merit in the same charge in 1962. The appeal preferred by the plaintiff-applicant before the departmental authority against his dismissal order was rejected on 26.11.1964, and, thereafter, he filed title suit in 1967, which, as said above, was dismissed on technical ground of limitation in 1977. Thereafter, the applicant preferred title appeal in 1977, before the District Judge; Darbhanga, which was eventually transferred to this Tribunal in 1993 and it is being disposed of in this millenium year of 2000, i.e. to say, after 40 years from the date of the impugned dismissal order when the applicant is aged about 69 years, in the evening of his life.
20. Learned counsel for the applicant has relied upon a ruling of the Hon'ble Supreme Court, as reported in 1987 SC 1833, to drive home the point that where reinstatement of the employee is not possible, a lump sum compensation in lieu there of after considering the fact that the employee was not gainfully employed elsewhere be awarded.
21. Reliance is also placed on the ruling of the Hon'ble Supreme Court, as reported in AIR 1984 Supreme Court 380, in which employee was convicted by the trial Court, but acquitted in appeal, in such circumstances, full salary was ordered to be paid on reinstatement.
22. Reliance is also placed on the ruling of the Hon'ble Punjab and Haryana High Court (D.B.) in Sukhdeo Singh v. The State of Punjab and Ors. in which termination order being held illegal by Civil Court, the petitioner was ordered to be reinstated and notwithstanding the fact that the applicant had not claimed the salary from the date of suit, yet, in law, the effect of such decision is that he is entitled to the salary from the date of the Suit till the date of his reinstatement.Om Prakash v. Union of India, (1992) 20 ATC 362=1995(1) SLJ 179 (Jodhpur) (CAT), held that normally the Government employee is reinstated with back wages, but no such direction can be given where employee is dead at the time of decision by the Tribunal. However, back wages from the date of invalid dismissal order to employee's date of superannuation was allowed. The period of invalid dismissal was directed to be taken as qualifying service for calculating pensionary benefits.
24. In view of the above discussions the applicant is held entitled to pensionary benefits from the due date of his retirement on superannuation determined at the rate applicable at the time of retirement, but without back wages. The Respondents are directed to pass necessary orders with respect to the payment of pensionary benefits in the manner as indicated above to the applicant within three months from the date of receipt of a copy of this order, failing which he (the applicant) shall be entitled to the payment of interest at the rate of 12% per annum on the amount of the pensionary benefits for the period till the payments are made. The cost of litigation is quantified at Rs. 2000/-.
1. I agree with my learned brother that the applicant must be granted limited relief as per the concluding paragraph of the order written by him. However, I have to make the following observations which must be read as part of the order : 2. The cause of action for seeking judicial relief against an order of punishment where appeal was filed by a government servant in the department, would begin to accrue when the appellate authority passed the final order on the appeal, and not on the date of the original order of punishment. But the cause of action would begin to accrue on the date of the original order, if no appeal was filed, and that would also apply where the appeal was filed, but after the limitation period for filing appeal was over, and the appeal was dismissed by the appellate authority as time barred, because, the appeal would be as good as not filed.
3. In the present matter, the impugned order of dismissal of the applicant was passed on 28.7.1960. The Director of Postal Services dismissed the appeal filed by the applicant as time barred vide order dated 26.11.1964, which was a speaking order, stating that the appeal was dated 29.10.1963, and no explanation was furnished by the appellant for submitting the appeal three years after the punishment was imposed.
Had this matter come to the Tribunal directly without having been adjudicated upon by the Addl. Munsif, Darbhanga, I would hold that it was barred by limitation.
4. But the matter was filed as a Title Suit in the Court of the Addl.
Munsif, Darbhanga, and the Addl. Munsif, by his judgment dated 29.1.1977, dismissed it as time barred on the ground that the cause of action would arise on the date the original order of punishment was passed by the disciplinary authority. As explained by my learned brother in his foregoing order, the ruling of the Supreme Court, which was applied by the trial Court, and on which ground he dismissed the Title Suit had been superseded by the subsequent ruling of the Supreme Court by a larger Constitution Bench of 7 Judges. The trial Court held that the plaintiff (now the applicant before us) filed the appeal before the Director of Postal Services on 27.10.1960, and the appeal dated 29.10.1963 was to submit additional grounds of appeal. It will not be right for the Tribunal to go into the facts leading to the concluding arrived at by the trial Court on this aspect of the matter.
5. Now, as has been explained by my learned brother, the disciplinary authority passed the impugned order of dismissal of the applicant on the basis of the report made by the inquiry officer without giving the applicant adequate opportunity for defending himself in a full-fleged departmental inquiry. The order to be passed by the Tribunal in such a case would be to remand the matter to the disciplinary authority for passing a suitable order after holding a denovo inquiry, but the matter is too old, and the only practical solution is the order proposed to be passed by my learned brother, with which I agree.