Mata DIn Vs. Haryana Education Board and anr. - Court Judgment

Excerpt:
- limitation act, 1963.[c.a. no. 36/1963]. sections 60 & 62: usufructuary mortgage right to seek redemption limitation held, the limitation of 30 years under article 61(a) begins to run when the right to redeem or the possession accrues. the right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. the right to seek foreclosure is co-extensive with the right to seek redemption. since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. thus the period of redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. in view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore, always redeemable would be applicable. the plea that after the expiry of the period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property would not be tenable. the mortgage cannot be extinguished by any unilateral act of the mortgagee. since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. it is equally well settled that it is not title of the suit, which determines the nature of the suit. the nature of the suit is required to be determined by reading all averments in plaint. such declaration cannot be claimed by ban usufructuary mortgagee. therefore, in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on date of mortgage but will arise on date when mortgagor pays or tenders to the mortgagee or deposits in court, the mortgage money or the balance thereof. thus, it was held that once a mortgage always a mortgage and is always redeemable. -- transfer of property act, 1882 [c.a. no. 4/1882]. sections 60 & 62; usufructuary mortgage right to seek redemption limitation held, since the mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge of some other obligation for which it is given, the security must, therefore, be redeemable on the payment or discharge of such debt or obligation. fact that at one point of time the mortgagor for one or the other reason mortgaged his property to avail financial assistance on account of necessities of life, the mortgagors right cannot be permitted to be defeated only on account of passage of time. the mortgagee remains in possession of the mortgaged property; enjoys the usufruct thereof and, therefore, not to lose anything by returning the security on receipt of mortgage debt. the limitation of 30 years under article 61(a) begins to run when the right to redeem or the possession accrues. the right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. the right to seek foreclosure is co-extensive with the right to seek redemption. since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. thus the period of redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. in view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore, always redeemable would be applicable. the plea that after the expiry of the period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property would not be tenable. the mortgage cannot be extinguished by any unilateral act of the mortgagee. since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. it is equally well settled that it is not title of the suit, which determines the nature of the suit. the nature of the suit is required to be determined by reading all averments in plaint. such declaration cannot be claimed by ban usufructuary mortgagee. therefore, in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on date of mortgage but will arise on date when mortgagor pays or tenders to the mortgagee or deposits in court, the mortgage money or the balance thereof. thus, it was held that once a mortgage always a mortgage and is always redeemable. sabina, j.1. plaintiff mata din filed a suit for declaration, which was dismissed by the sub judge, ist class, ambala city vide judgment and decree dated 21.12.1994. in appeal, the said judgment and decree were upheld by the district judge, ambala vide judgment and decree dated 17.12.1996. hence, the present appeal.2. brief facts of the case, as noticed by the lower appellate court in para nos. 2 to 6 of its judgment, are as under:2. it is claimed by the plaintiff-appellant that he was a regular employee under the haryana education board and had been working as mali-cum-chowkidar at govt. girls school, raipur rani, district ambala. he further claimed that there was no complaint against him and he was placed under suspension by the headmistress on 10.12.1985, without any reason. he further claimed that without giving any due opportunity to him to defend his case, he was held guilty.3. in order to seek justice, several representations made by the appellant proved futile and then he moved a complaint under section 25-t of industrial dispute act before the labour officer-cum-conciliation officer, ambala. the headmistress of the said school had given undertaking to withdraw the suspension order and had obtained signatures of the plaintiff-appellant on some blank, papers.4. it is further the claim of the plaintiff that he had approached the authority under the payment of wages act for getting his wages. he was required to work for more than eight hours, to which he refused and to take a revenge from him the impugned order was passed. it was further the claim of the plaintiff-appellant that he had given a notice under section 80 cpc but of no avail and then he filed the suit seeking a declaration to the effect that the order dated 20.11.1986 passed by the defendants-respondents with regard to the termination of his services is void, and not binding upon the right of the plaintiff-appellant.5. defendant-respondent no. 1 did not prefer to contest the suit before the learned trial court, hence defendant no. 1 was proceeded against ex parte.6. however, defendant no. 2 took up the plea that the suit was not maintainable and the same was barred by time. it was further claimed that the enquiry was conducted strictly as per the rules and regulations.it was further claimed that there was no illegality or infirmity in the enquiry conducted by the enquiry officer and the suit was sought to be dismissed.3. on the pleadings of the parties, following issues were framed by the trial court:1. whether the order of defendant no. 1 dated 20.11.1986 terminating the services of the plaintiff is illegal, null and void and not binding on the rights of the plaintiff, if so, its effect? opp2. whether the suit of the plaintiff is not maintainable in the present form? opd3. whether the suit of the plaintiff is barred by limitation? opd4. whether no proper notice under section 80 cpc was served, if so, its effect? opd5. whether the suit of the plaintiff is not properly valued for the purposes of court fee and jurisdiction? opd6. relief.4. after hearing learned counsel for the parties, i am of the opinion that the present appeal deserves to be dismissed.5. the scope of judicial review regarding interference with punishment order is very limited. the jurisdiction of the civil court is only to see the method/manner of awarding punishment. the court is only concerned with the procedure adopted by the punishing authority. if the procedure adopted by the punishing authority is according to rules and natural justice, then no interference with the punishment order is called for. the civil court cannot go into the merits of the case. in case, the finding of the inquiry officer is based on some evidence, then the court cannot reappreicate the evidence or weigh the same like the appellate authority. so long as there is some evidence in support of the conclusion arrived at by the departmental authority, the same has to be sustained. some defects in the inquiry has to be pointed out before the civil court can interfere with the punishment order. further more, if defect is pointed out then the delinquent employee has to show as to what prejudice has caused to him on account of the said defect. the court exercising jurisdiction of judicial review is not to interfere with the finding of the fact arrived at in a departmental inquiry excepting in a case of mala fide or perversity.6. admittedly, the plaintiff was employed as a mali-cum-chowkidar at government girls school, raipur rani, district ambala. he was placed under suspension on 10.12.1985. a notice was served upon the plaintiff. thereafter a departmental inquiry was held against the plaintiff and inquiry report dated 30.9.1986 was supplied to him, as per which all the charges levelled against the plaintiff were held to be proved. ex.dw-1/42 reveals that the inquiry report was duly received by the plaintiff and hence, the argument of the learned counsel for the appellant that a copy of the inquiry report was not supplied to the plaintiff is without any basis. a perusal of the inquiry proceedings reveals that ten charges were framed against the plaintiff. during the inquiry proceedings, plaintiff was given opportunity to cross-examine the witnesses but he-did not do so. serious allegations were levelled against the plaintiff. it was alleged that the plaintiff was not attending his duty. he was asked to report for duty yet he did not do so. the plaintiff also insulted mrs. nirmal singla by speaking rudely to her. the main thrust of charges leveled against the plaintiff were that he was not performing his duty and was misbehaving with the staff being disrespectful to them.7. during the course of arguments, learned counsel for the appellant has submitted that inquiry officer had used her personal knowledge to hold that the charges, levelled against the plaintiff, stood proved. however, a perusal of the inquiry report does not lead to the said inference that the inquiry officer was biased against the plaintiff.8. learned counsel for the appellant, during the course of arguments, placed reliance on the decision of the apex court in associated cement companies, ltd. v. their workmen and anr. : (1963)2 l.lj. 396 (s.c.), wherein it was held that where an inquiry was conducted by an officer having personal knowledge of the incident then the said inquiry stood vitiated by violation of principle of natural justice.9. learned counsel has further placed reliance on the decision of this court in satish kumar v. state of haryana and ors. 2002(2) r.s.j. 124, wherein it was held that an inquiry conducted by ignoring the principles of natural justice stood vitiated.10. the judgments relied upon by learned counsel for the appellant fail to advance the case of the appellant as these are based on different facts. hence, there is no force in the contention raised by learned counsel for the appellant. the inquiry officer has conducted the inquiry in a fair manner. in these circumstances, the courts below had rightly dismissed the suit of the plaintiff.11. no substantial question of law arises in this regular second appeal. accordingly, the same is dismissed.