Haryana State and Another Vs. Zile Singh - Court Judgment

Excerpt:
ajay tewari, j. oral: this appeal has been filed against the concurrent judgments of the courts below decreeing the suit of the respondent challenging the following orders of punishment:- exhibitdatedd-128.11.1977d-602.02.1978d-1219.06.1982d-1624.11.1977d-2519.11.1993d-3525.01.1994by all these orders of punishment the total number of nine increments of the respondent were stopped with cumulative effect. he filed the suit dated 14.09.1995. both the courts below held that there were serious procedural infirmities while passing these orders. with regard to order ex.d1, d6 and d12, both the courts below held that no regular inquiry was conducted. with regard to order ex.d16 both the courts below held that even the inquiry was held but no evidence was led before the inquiry officer. as far as ex.d25 was concerned, the courts below found that the complaint and the show cause notice was never served upon the respondent and with regard to ex.d35 it was held that the copy of the complaint was not supplied to the respondent alongwith the charge-sheet and a copy of the inquiry report was not supplied alongwith the show cause notice. today learned deputy advocate general has proposed the following question of law:- “1. whether the suit of the plaintiff-appellant barred by limitation at least as regard orders dated 28.11.1977 (ex.d1), 02.02.1978 (ex.d6), 19.06.1982 (ex.d12), 24.11.1977 (ex.d16). “2. whether the learned courts below erred in setting aside the order ex.d35 even though the respondent had admitted his guilt? as regards question no.1, learned counsel for the respondent has placed reliance on union of india and others versus tarsem singh (2008) 8 scc 648 wherein the hon'ble supreme court has held as follows :- “7. to summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the administrative tribunal). one of the exceptions to the said rule is cases relating to a continuing wrong. where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. but there is an exception to the exception. if the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. for example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. but if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. as a consequence, the high courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” learned counsel for the appellant on the other hand has placed reliance on the judgment of the hon'ble supreme court in state of punjab and another versus balkaran singh (2006) 12 supreme court cases 709, wherein it has been held as under :- “16. it was argued on behalf of the plaintiffs, as was done in the trial court, that the cause of action must be held to be a recurring one and hence the suit must be held to be not barred by limitation. reliance was placed on the decision in amritlal berry v. cce (1975) 4 scc 714. that decision arose from a proceeding under article 32 of the constitution of india. it was not a suit. there was no occasion for this court to consider the scope of article 58 of the limitation act in that writ petition. it was only stated that when a citizen aggrieved by the action of the government department had approached the court and obtained declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievance to the court. this is hardly a defence to a plea based on article 58 of the limitation act in respect of the relief of declaration with respect to an order which was issued twelve years prior to the suit and which immediately affected the pay receivable by them. in fact this court in s.s. rathore v. state of m.p. (1989) 4 scc 582, a decision rendered by seven hon'ble judges, has clearly held in suits relating to service matters, that :(scc p.591, para 21) “yet, suits outside the purview of the administrative tribunals act shall continue to be governed by article 58.” in a series of subsequent decisions, this court has held that a suit for declaration in matters relating to a service is governed by article 58 of the limitation act, 1963. (see for instance, mohd. quaramuddin v. state of a.p. (1994) 5 scc 118, vasant ramchandara deshpande v. state of maharashtra (1997) 11 scc 305, rajasthan srtc v. nand lal 1999 scc (lands) 658.) in state of punjab v. gurdev singh (1991) 4 scc 1 a three-judges bench of this court held that a party aggrieved by the order, even if it is found to be void, has to approach the court for relief of declaration that the order against him is inoperative and void within three years of the order.” both the aforementioned judgments have been rendered by a division bench consisting of two hon'ble judges. in this connection, this court is to be guided by the principles as laid down by the full bench of this court in m/s indo swiss time limited, dundahera v. umrao and others, air 1981 punjab and haryana 213(1), wherein it was held as follows :- “23. now the contention that the latest judgment of a coordinate bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. when judgments of the superior court are of co-equal benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. it is manifest that when two directly conflicting judgments of the superior court and of equal authority are extent than both of them cannot be binding on the courts below. inevitably a choice though a difficult one has to be made in such a situation. on principles of it appears to me that the high court must follow the judgment which appears to it to lay down the law more elaborately and accurately. the mere incidence of time whether the judgments of co-equal benches of the superior court are earlier or later is a consideration which appears to me as hardly relevant. 38. on a careful consideration of the respective contentions of the learned counsel for the parties, in the light of various decisions cited by them, it transpires that the view taken in the judgment of the supreme court in himalaya tiles and marbles (p.) ltd. (air 1980 sc 1118) (supra), on which reliance has been placed by mr. sarin, is in conflict with the view taken in the earlier judgment in municipal corporation of the city of ahmedabad's case (1970) 1 scwr 183(supra). as observed by my lord the chief justice, a perusal of the two judgments plainly indicates that there is a direct conflict on the point which needs our decision. both the judgments have been rendered by a bench consisting of two hon'ble judges and cannot possibly be reconciled. in this situation a some what interesting though tricky question arise for determination i. e., when there is a direct conflict between the two decisions of the supreme court rendered by co-equal benches, which of them should be followed by the high courts and the courts below. 39. on this question, my lord the chief justice in his elaborate judgment has held that the courts may follow the judgment which appears to them to state the law accurately and that mere incidence of time whether the judgment of the co-equal benches of the superior court are earlier of later is a consideration which appears to be hardly relevant. i have also given my thoughtful consideration to the entire matter and find myself in respectful agreement with the aforesaid observation of my lord the chief justice.” looked at from this angle, in my considered opinion the judgment in tarsemsingh's case (supra) would further advance the cause of justice and state the law more accurately. consequently, it has to be held that limitation would not hit the claim of the respondent in this case. resultantly, the question no.1 is partly held in favour of the respondent in so much as even though the suit was barred by limitation yet the relief has to be restricted for a period of 3 years and 2 months prior to the date of filing of the suit viz., 14.09.1995. as regards the second question, learned deputy advocate general has stated that the purpose of supplying a copy of the complaint with the charge-sheet was to enable the delinquent to know about the case against him and to file reply as such. likewise, the purpose of supplying a copy of inquiry report was to enable the delinquent to challenge the findings of the inquiry officer before the competent authority in respect of the allegation on which ex.d35 was passed. learned deputy advocate general has drawn the attention of this court to a letter ex.d44 whereby the respondent had admitted his mistake. developing his argument, learned deputy advocate general has argued that once the respondent had admitted his mistake i.e. collection of money without issuance of tickets there was no prejudice caused to him either by the non-supply of the complaint with the charge-sheet or by the non-supply of the inquiry report with the show cause notice. as per learned deputy advocate general the moment the respondent had admitted his guilt straightway the show cause notice was issued to him without holding any inquiry. learned counsel for the respondent on the other hand has argued that non-supply of inquiry report with the show cause notice has been repeatedly held by the courts to be a fundamental infraction and thus it cannot be condoned in any manner. in my opinion in the present facts and circumstances of the case, the arguments of learned deputy advocate general would have to prevail. the provision for providing copies/inquiry report are all attendant to the rules of natural justice which have been repeatedly held to be not mechanical and to take colour from the circumstances in which they sought to be raised. once the respondent had admitted his defalcation no prejudice was caused to him by the non-communication of complaint or the inquiry report. resultantly, the second question of law is held in favour of the appellant. in the circumstances, this appeal is allowed in respect of the order dated 25.01.1994 (ex.d35) and that punishment is upheld. with regard to the other punishment orders this appeal is dismissed. no costs.

Judgment:

Ajay Tewari, J.

Oral:

This appeal has been filed against the concurrent judgments of the Courts below decreeing the suit of the respondent challenging the following orders of punishment:-

Exhibit	Dated
D-1	28.11.1977
D-6	02.02.1978
D-12	19.06.1982
D-16	24.11.1977
D-25	19.11.1993
D-35	25.01.1994

By all these orders of punishment the total number of nine increments of the respondent were stopped with cumulative effect. He filed the suit dated 14.09.1995. Both the Courts below held that there were serious procedural infirmities while passing these orders. With regard to order Ex.D1, D6 and D12, both the Courts below held that no regular inquiry was conducted. With regard to order Ex.D16 both the Courts below held that even the inquiry was held but no evidence was led before the inquiry officer. As far as Ex.D25 was concerned, the Courts below found that the complaint and the show cause notice was never served upon the respondent and with regard to Ex.D35 it was held that the copy of the complaint was not supplied to the respondent alongwith the charge-sheet and a copy of the inquiry report was not supplied alongwith the show cause notice.

Today learned Deputy Advocate General has proposed the following question of law:-

“1. Whether the suit of the plaintiff-appellant barred by limitation at least as regard orders dated 28.11.1977 (Ex.D1), 02.02.1978 (Ex.D6), 19.06.1982 (Ex.D12), 24.11.1977 (Ex.D16).

“2. Whether the learned Courts below erred in setting aside the order Ex.D35 even though the respondent had admitted his guilt?

As regards question No.1, learned counsel for the respondent has placed reliance on Union of India and others versus Tarsem Singh (2008) 8 SCC 648 wherein the Hon'ble Supreme Court has held as follows :-

“7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

Learned counsel for the appellant on the other hand has placed reliance on the judgment of the Hon'ble Supreme Court in State of Punjab and another versus Balkaran Singh (2006) 12 Supreme Court Cases 709, wherein it has been held as under :-

“16. It was argued on behalf of the plaintiffs, as was done in the trial court, that the cause of action must be held to be a recurring one and hence the suit must be held to be not barred by limitation. Reliance was placed on the decision in AmritLal Berry v. CCE (1975) 4 SCC 714. That decision arose from a proceeding under Article 32 of the Constitution of India. It was not a suit. There was no occasion for this Court to consider the scope of Article 58 of the Limitation Act in that writ petition. It was only stated that when a citizen aggrieved by the action of the government department had approached the court and obtained declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievance to the court. This is hardly a defence to a plea based on Article 58 of the Limitation Act in respect of the relief of declaration with respect to an order which was issued twelve years prior to the suit and which immediately affected the pay receivable by them. In fact this Court in S.S. Rathore v. State of M.P. (1989) 4 SCC 582, a decision rendered by seven Hon'ble Judges, has clearly held in suits relating to service matters, that :(SCC p.591, para 21)

“Yet, suits outside the purview of the Administrative Tribunals Act shall continue to be governed by Article 58.”

In a series of subsequent decisions, this Court has held that a suit for declaration in matters relating to a service is governed by Article 58 of the Limitation Act, 1963. (See for instance, Mohd. Quaramuddin v. State of A.P. (1994) 5 SCC 118, Vasant Ramchandara Deshpande v. State of Maharashtra (1997) 11 SCC 305, Rajasthan SRTC v. Nand Lal 1999 SCC (LandS) 658.) In State of Punjab v. Gurdev Singh (1991) 4 SCC 1 a three-Judges Bench of this Court held that a party aggrieved by the order, even if it is found to be void, has to approach the court for relief of declaration that the order against him is inoperative and void within three years of the order.”

Both the aforementioned judgments have been rendered by a Division Bench consisting of two Hon'ble Judges. In this connection, this Court is to be guided by the principles as laid down by the Full Bench of this Court in M/S Indo Swiss Time Limited, Dundahera v. Umrao and others, AIR 1981 Punjab and Haryana 213(1), wherein it was held as follows :-

“23. Now the contention that the latest judgment of a coordinate Bench is to be mechanically followed and must have pre-eminence irrespective of any other consideration does not commend itself to me. When judgments of the superior court are of co-equal benches and therefore of matching authority then their weight inevitably must be considered by the rationale and the logic thereof and not by the mere fortuitous circumstances of the time and date on which they were rendered. It is manifest that when two directly conflicting judgments of the superior Court and of equal authority are extent than both of them cannot be binding on the courts below. Inevitably a choice though a difficult one has to be made in such a situation. On principles of it appears to me that the high Court must follow the judgment which appears to it to lay down the law more elaborately and accurately. The mere incidence of time whether the judgments of co-equal Benches of the Superior Court are earlier or later is a consideration which appears to me as hardly relevant.

38. On a careful consideration of the respective contentions of the learned counsel for the parties, in the light of various decisions cited by them, it transpires that the view taken in the judgment of the Supreme Court in Himalaya tiles and Marbles (P.) Ltd. (AIR 1980 SC 1118) (supra), on which reliance has been placed by Mr. Sarin, is in conflict with the view taken in the earlier judgment in Municipal Corporation of the City of Ahmedabad's case (1970) 1 SCWR 183(supra). As observed by my Lord the Chief justice, a perusal of the two judgments plainly indicates that there is a direct conflict on the point which needs our decision. Both the judgments have been rendered by a Bench consisting of two Hon'ble judges and cannot possibly be reconciled. In this situation a some what interesting though tricky question arise for determination i. e., when there is a direct conflict between the two decisions of the Supreme Court rendered by co-equal Benches, which of them should be followed by the High Courts and the courts below.

39. On this question, my Lord the Chief Justice in his elaborate judgment has held that the Courts may follow the judgment which appears to them to state the law accurately and that mere incidence of time whether the judgment of the co-equal Benches of the superior Court are earlier of later is a consideration which appears to be hardly relevant. I have also given my thoughtful consideration to the entire matter and find myself in respectful agreement with the aforesaid observation of my Lord the Chief Justice.”

Looked at from this angle, in my considered opinion the judgment in TarsemSingh's case (supra) would further advance the cause of justice and state the law more accurately. Consequently, it has to be held that limitation would not hit the claim of the respondent in this case. Resultantly, the question No.1 is partly held in favour of the respondent in so much as even though the suit was barred by limitation yet the relief has to be restricted for a period of 3 years and 2 months prior to the date of filing of the suit viz., 14.09.1995.

As regards the second question, learned Deputy Advocate General has stated that the purpose of supplying a copy of the complaint with the charge-sheet was to enable the delinquent to know about the case against him and to file reply as such. Likewise, the purpose of supplying a copy of inquiry report was to enable the delinquent to challenge the findings of the inquiry officer before the competent authority in respect of the allegation on which Ex.D35 was passed. Learned Deputy Advocate General has drawn the attention of this Court to a letter Ex.D44 whereby the respondent had admitted his mistake. Developing his argument, learned Deputy Advocate General has argued that once the respondent had admitted his mistake i.e. collection of money without issuance of tickets there was no prejudice caused to him either by the non-supply of the complaint with the charge-sheet or by the non-supply of the inquiry report with the show cause notice. As per learned Deputy Advocate General the moment the respondent had admitted his guilt straightway the show cause notice was issued to him without holding any inquiry.

Learned counsel for the respondent on the other hand has argued that non-supply of inquiry report with the show cause notice has been repeatedly held by the Courts to be a fundamental infraction and thus it cannot be condoned in any manner.

In my opinion in the present facts and circumstances of the case, the arguments of learned Deputy Advocate General would have to prevail. The provision for providing copies/inquiry report are all attendant to the rules of natural justice which have been repeatedly held to be not mechanical and to take colour from the circumstances in which they sought to be raised. Once the respondent had admitted his defalcation no prejudice was caused to him by the non-communication of complaint or the inquiry report. Resultantly, the second question of law is held in favour of the appellant.

In the circumstances, this appeal is allowed in respect of the order dated 25.01.1994 (Ex.D35) and that punishment is upheld. With regard to the other punishment orders this appeal is dismissed. No costs.