1. This appeal is at the instance of the original defendant No.1 against whom as well as against respondent No.2 herein – original defendant No.2, respondent No.1 original plaintiff had filed Regular Civil Suit No. 44 of 1992 for declaration and permanent injunction.
2. The case of the plaintiff is that he was appointed as primary teacher in the year 1965 and in the month of June, 1971, when he was on leave for three weeks, he was ordered to be sent for training but when he returned from leave, he was asked to proceed to Adhyapan Mandir, Limdi where the plaintiff was not allowed to resume the duty. It is the further case of the plaintiff that the plaintiff is neither suspended, removed or discharged from service and yet he was not allowed to resume the duty. The plaintiff further averred that he was not departmentally proceeded against and still treated as terminated. He therefore sought declaration that he be treated to have been in continuous service.
3. The suit of the plaintiff was resisted by defendant No.1 stating that the suit of the plaintiff was time barred. That the suit was also not maintainable as the plaintiff has not served statutory notice under section 320 of the Gujarat Panchayats Act, 1961 (“the Act” for short). That the Court is not competent to entertain the suit of the plaintiff. That the plaintiff was in fact not on leave for three weeks but the plaintiff was on duty till 14.6.1971 and by order dated 15.6.1971, that he was asked to go for training but he refused to go for training. It is further stated that the plaintiff was appointed purely on ad-hoc basis and the condition was already incorporated at the time of his appointment that the plaintiff could be relieved from service without notice. It was also made clear to the plaintiff at the time of his appointment that the plaintiff would be required to go for training and disobedience of such order for training would result into relieving him from service. Inspite of the above condition, the plaintiff did not go for training and acted in defiance of the order dated 17.7.1970 for training It is also stated that those employees who do not comply with the order of training were not entitled to continue in service and since the plaintiff did not go for training, ad.hoc services of the plaintiff were put an end to under Rule 9(A)(2) of the Rules of the Government of Gujarat for such employees. Thus, no arbitrary or illegal action was taken against the plaintiff but the plaintiff had made himself disentitled to continue in the service of the defendant No.1. Defendant No.1 has raised various other contentions in the written statement.
4. Learned trial Judge has framed following issues at Exh. 36:
(1) Whether plaintiff proves that he is continuous in service of the defendant?
(2) Whether plaintiff was on leave on June 1971 for three weeks?
(3) Whether defendant proves that vide order No. 679/71, plaintiff had to undergo on training at Limbdi Adhyapan Mandir?
(4) Is it proved by defendant that plaintiff was given second opportunity for training at Adhyapan Mandir at Limbdi and yet he did not go there?
(5) Is it proved by the defendants that the order of training was served upon the plaintiff?
(6) Whether plaintiff proves that defendant did not allow him to resume duty at Primary School Jetalsar?
(7) Whether Plaintiff proves that action withholding him of the duties and disallowing him in resuming his duty is void and arbitrary?
(8) Whether plaintiff is yet in active service and has a right to serve till superannuation?
(9) Whether plaintiff is entitled to get a relief of declaration and permanent injunction as prayed for?
(10) What order and what decree?
5. After the arguments of both the sides were over, the learned trial Judge framed two more issues as under:
(1) Whether the termination of the plaintiff from service is illegal and void?
(2) What order and what decree?
6. On appreciation of the evidence, the learned trial Judge came to the conclusion that the services of the plaintiff were terminated for absence from duty. Learned trial Judge further observed that though the plaintiff had come out with a case that no order of termination was served, such would hardly make any difference but the fact remained that the plaintiff has been summarily terminated without any inquiry. The learned trial Judge, however, did not deal with any of the issues framed at Exh. 36 and allowed the suit of the plaintiff and ordered reinstatement of the plaintiff with full back wages.
7. Defendant No.1, the present appellant challenged the judgment and decree passed by the learned trial Judge by filing Regular Civil Appeal No. 10 of 1996 before the learned appellate Judge. Various contentions as regards non-service of statutory notice under section 320 of the Act; as regards limitation and also as regards legality of the termination of services of the plaintiff were canvassed. The learned appellate Judge however came to conclusion that since no procedure was followed before terminating services of the plaintiff, order terminating services of the plaintiff was illegal and void. So far as the issue of statutory notice under section 320 of the Act is concerned, the learned appellate Judge came to the conclusion that no such notice is required to be served before filing the suit as the action of the defendants was totally unjust, unfair unreasonable and arbitrary. As regards issue of limitation, the learned appellate Judge though found that the suit was filed after unreasonable delay of 20 years, did not accept the argument of the appellant that the suit was barred by limitation.
8. On the above said conclusions reached by the learned appellate Judge, the learned appellate Judge ultimately dismissed the appeal by judgment and decree dated 28.2.1997. It is this judgment and decree passed by the learned appellate Judge which is under challenge in this appeal.
9. This appeal was admitted on following substantial questions of law:
[1] Whether the finding of the lower Appellate Court that the suit is not barred by limitation is erroneous ?
[2] Whether the respondent is entitled to protection of Article 311 sub-clause (2) of the Constitution of India despite the fact that he is primary school teacher ?
[3] Whether recasting of issues by the Trial Court after conclusion of evidence and hearing argument was illegal and caused material prejudice to the Appellant ?
[4] Whether the judgment of the Courts below are perverse in as much as the oral and documentary evidence adduced by the parties were not considered ?
10. I have heard the learned advocates for the parties. Learned Advocate Shri Patel appearing for the appellant submitted that the appellant was appointed as ad-hoc primary teacher and was under obligation to go for training. However, he bluntly refused to go for training and, therefore, the appellant was justified by putting an end to service of the plaintiff by exercising the powers under the Rules. He submitted that the learned trial Judge not only did not decide any of the issues framed at Exh.
36 but at the time of writing judgment, the learned trial Judge framed one more issue as to Whether the termination of the plaintiff from service is illegal and void. He submitted that the learned trial Judge ought not to have framed any such issue without knowledge to the parties to the suit and ought not to have decided such issue. Mr. Patel submitted that there was no question of giving any opportunity to the plaintiff before putting an end to his service because the plaintiff was bound by the conditions of the order of appointment as per which the plaintiff was required to undergo the training and on failure of going for training, the plaintiff obviously had invited consequences of such failure and, therefore, there was no necessity for holding any inquiry against the plaintiff. Mr. Patel submitted that since the services were not put an end to for any misconduct, it was not necessary to hold the inquiry. Mr. Patel also submitted that the suit of the plaintiff was barred by section 320 of the Act because no prior notice was served under the said provisions before filing the suit. He also submitted that the suit of the plaintiff was also barred by the provisions of the Limitation Act. The plaintiff made challenge to his termination at belated stage by filing the suit, therefore, the Courts below were not justified in entertaining such a suit and grant relief to the plaintiff on the ground that the action of the appellant of terminating services of the plaintiff was illegal. Mr. Patel thus urged to allow this appeal on the substantial questions of law framed by this court while admitting the appeal. In support of his arguments, learned advocate Mr. Patel has relied on the following judgments:
(1) 1983 (1) GLR page 60 in the case of Gujarat State Road Transport Corporation versus Bhagvanji Vashram.
(2) 1994 (2) GLR page 1773 in the case of Jamnagar Municipal Corporation versus Vijay and Co.
(3) 2007 (5) SCC page 614 in the case of Hardesh Ores (P) Ltd. Versus Hede and Company.
11. As against the above submissions made by the learned advocate Mr. Patel, learned advocate Mr. M.D. Rana appearing for the plaintiff submitted that since the action of terminating services of the plaintiff was illegal and void ab initio, limitation would not come in the way of the plaintiff in filing the suit. He submitted that for any reason, if the services of the plaintiff were required to be put an end to, the plaintiff was required to be given opportunity to defend himself and unless due procedure of law is followed before terminating services of the plaintiff, the order terminating service of the plaintiff could be said to be illegal and void. He submitted that the plaintiff though was panchayat servant but still as per the settled law, he had acquired the status of Government servant and if the appellant wanted to terminate the services of the plaintiff, due process of law would be required to be followed, otherwise, the action of the appellant would, for all purpose, be treated as violative of Article 311 of the Constitution. Mr. Rana submitted that since the plaintiff was not asking for any urgent relief, there was no necessity for serving notice under section 320 of the Gujarat Panchayats Act 1961 before filing the suit and the appellate court had therefore rightly held that the suit of the plaintiff was not barred by non service of such statutory notice under section 320 of the Act. Mr. Rana submitted that even if the plaintiff had not gone for training, the plaintiff at the best could have been permitted to go for training by giving him one more opportunity especially when it was the specific case of the plaintiff that the plaintiff was on leave on medical ground. He submitted that since there was no order passed against the plaintiff terminating his services, the plaintiff, for all purposes, was in services of the appellant and it was illegal action on the part of the appellant in not permitting the plaintiff to resume the duty. He submitted that since the Courts below have found as a matter of fact that the plaintiff was not permitted to resume duty in absence of any order for terminating his services, the plaintiff was justified in filing the suit even after the period of 20 years because when there was no order passed terminating services of the plaintiff, limitation could not be said to have been reckoned at all for the cause of action available to the plaintiff. Mr. Rana submitted that the courts below have found that the suit of the plaintiff was within the period of limitation and, therefore, this court may not interfere with such finding and conclusion reached by the courts below. In support of his arguments, Mr. Rana relied on the following judgments:
(1) 1981 GLR page 320 in the case of Dhangauri Valji Bhatt v. District Panchayat, Amreli.
(2) Decision dated 23.6.2011 passed by the learned Single Judge of this Court in Second Appeal No. 37 of 1995 in the case of District Development Officer versus Natvarsinh Harbhamji Jadeja.
12. I have heard the learned advocates for the parties and having perused the judgment and decree passed by the Courts below as well as the R&P of the case, it appears that the plaintiff was appointed by order dated 17/19.9.1963 as Assistant Primary Teacher purely on ad.hoc basis. Condition No.2 and 6 of the said order of appointment provide as under:
(2) If more suitable candidate is available, then, you shall be relieved from service without any notice.
(6) Whenever you are sent for training, you would be required to go for any such training as per the Government Rules and if you commit breach or disobey such order, you shall be relieved from service.
13. The plaintiff was then ordered to be sent for training with other two persons vide order dated 4.6.1971. There is no dispute about the fact that the plaintiff did not go for training. It is the case of the plaintiff that the plaintiff was on leave and was not in a position to go for training but when he went to resume his duty, he was not permitted to resume duty and thus his services were put an end to. The plaintiff, thus, committed breach of one of the important conditions of his appointment order by not going to training though he was ordered to go for training. The plaintiff was purely on ad.hoc basis and, therefore, in my view, if the plaintiff had not complied with one of the important conditions of the order of appointment, the plaintiff being an ad.hoc employee, no other procedure in law was required to be taken against the plaintiff. However, even if there was some illegality in terminating the services of the plaintiff, the plaintiff was required to be vigilant for his rights. The plaintiff has admittedly not challenged the oral order of termination within reasonable period. It is the case of the plaintiff that his services were terminated in the year 1971. Still, the plaintiff filed the suit after long period of 20 years. The plaintiff has not given any explanation in the suit why the plaintiff took such long time for approaching the civil court. If the averments especially of the cause of action in the suit are considered, it clearly appears that the plaintiff has put forth the cause of action for filing the suit by taking stand that he was never suspended or removed but he was not allowed to resume the duty and, therefore, he made an application on 18.12.1991 but was not permitted to resume the duty and, therefore, the cause had arisen for the plaintiff to file the suit.
14. In my view, even if the plaintiff was not suspended or removed by any order, still, he had full knowledge that he was not permitted to resume the duty on account of his not joining the training and that had happened in the year 1971. Said action on the part of the appellant of not permitting the plaintiff to resume the duty was in fact taken by the plaintiff as termination of his service by oral order. Learned trial Judge has also framed the issue at the time of delivering the judgment as to whether the termination of the service of the plaintiff was illegal or not. Therefore, cause for the plaintiff to file the suit for said illegal action on the part of the appellants had arisen in the year 1971. The plaintiff for the reasons best known to him, has chosen to sit tight over his right to remedy for a long period of about 20 years. In my view, such a plaintiff who had slept over his right for a period of over 20 years to avail a remedy against the alleged illegal action of the appellant is not entitled to any relief in the suit filed by him.
15. At this stage, it is required to be noted that the learned trial Judge has not decided any of the issues framed at Exh. 36 but the learned appellate Judge has dealt with the issue of limitation by observing that since the plaintiff was neither suspended nor removed or discharged from the service and since he was not allowed to resume the duty, question of limitation did not arise.
In my view, the Courts below have misdirected themselves by not properly considering the prime issue of limitation involved in the suit proceedings. Even if the plaintiff was not suspended, removed or discharged from service, and still was not permitted to resume the duty, such action could be an alleged illegal action on the part of the appellant which had taken place in the year 1971. The plaintiff was fully aware about such alleged illegal action on the part of the appellant, therefore, the limitation for the purpose of filing the suit would certain be reckoned from such alleged illegal action on the part of the appellant. Learned appellate Judge was thus not justified in holding that the suit of the plaintiff was within the limitation on the ground that the question of limitation did not arise because the plaintiff was not permitted to resume the duty.
16. The plaintiff has made himself disentitled to claim any relief in the suit because of his own conduct of not approaching the civil court within the period of limitation. Suit filed by the plaintiff was at a very belated stage, therefore, in my view, only on the ground of limitation, suit of the plaintiff must fail.
17. Though this Court has framed more than one substantial questions of law including the question of limitation at the time of admitting the appeal, since I find that the plaintiff is not entitled to any relief in his suit which was filed at very belated stage, no other substantial questions of law except the limitation are required to be considered.
18. Decision relied on by learned advocate Mr. Rana in Second Appeal No. 37 of 1995 would not be of any help to the case of the plaintiff. Having gone through the said decision of the learned Single Judge, I find that the learned Single Judge has not considered and dealt with the issue of limitation. The plaintiff in that case had filed the suit after the period of nine years. Learned Judge in the facts of the said case, did not think it fit to interfere with the judgment and decree passed by the Courts below. However, so far as the present case is concerned, as discussed above, the plaintiff has approached the Civil Court after a period of 20 years. The plaintiff was bound by the conditions incorporated in the order of appointment where-under he was purely appointed as ad.hoc primary teacher. Thus, the said decision is of no help to the plaintiff. However, the decision relied on by learned advocate Mr. Patel for the appellant could be applied to the facts of the present case. In Bhagvanji Vashram (supra), the plaintiff of that case had filed the suit after a period of 12 years challenging order of his dismissal from service and this court held that the cause of action arose for the plaintiff when the evil consequences of alleged order of dismissal had started. In another case relied on by learned advocate Mr. Patel in the case of Vijay and Co. (supra), the issue was about the condonation of delay in filing the suit and this court held that there is no question of condoning delay in filing the suit. Therefore, this decision will have no application to the facts of the present case but the first decision cited by learned advocate Mr. Patel in case of Bhagvanji Vashram (supra) will squarely cover the issue about limitation involved in the present case.
19. In State Bank of India versus BS Agriculture Industries (I), reported in (2009) 5 SCC page 121, Hon’ble the Supreme Court has held that the plea of limitation being a jurisdictional fact, need not be pleaded, and the Court is bound to take into consideration such plea of limitation.
20. In Krishi Utpadan Mandi Samity, Manglor versus Pahal Singh reported in (2007) 12 SCC page 193, Hon’ble the Supreme Court has held that the delay and latches defeats the equity.
21. In State of Orissa versus Chandra Sekhar Mishra reported in (2002) 10 SCC 583, Hon’ble the Supreme Court has held that the Tribunal was not justified in entertaining the challenge to the order of termination after a period of 14 years.
22. In Union of India and another versus SS Kothiyal and others, (1998) 8 SCC 682, Hon’ble the Supreme Court has held that if the party does not take his own remedy and delayed such remedy, is responsible for such delay and latches and not entitled to any relief.
23. As discussed above, evil consequences had already started for the plaintiff when the plaintiff was not permitted to resume duty which the plaintiff termed as termination of his services by oral order. Such evil consequences had if started before 20 years, the suit of the plaintiff for all purposes was time barred when he filed. Thus, the Courts below have materially erred in holding that the suit of the plaintiff was within the time limit.
24. In view of the above, the appeal is required to be allowed by holding that the suit of the plaintiff was time barred and the plaintiff was not entitled to any relief in his suit which was filed at much belated stage.
25. Accordingly, this appeal is allowed. Judgment and decree passed by the Courts below are quashed and set aside.
anvyas Sd/-
(C.L.SONI, J.)