Holding

A suit for declaration that an order of dismissal is illegal, void or ultra vires is governed by Article 113 of the Limitation Act, 1963, and must be filed within three years from the accrual of the right to sue.

Summary

The Supreme Court considered two civil appeals filed by former government employees who, after being dismissed, sued for a declaration that their termination was illegal, void, and that they remained in service. The Punjab High Court had held that no limitation period applied to such suits when the dismissal was illegal. The Supreme Court examined whether the Limitation Act, 1963 governs these declaration suits and, if so, which provision applies. It held that the right to sue accrues when the dismissal order is found to be illegal, and the suit is therefore subject to the residuary Article 113 of the Limitation Act, which provides a three‑year limitation period. Consequently, the appeals were allowed, the High Court judgments set aside, and the suits dismissed as time‑barred. No costs were awarded.

Issues considered

Whether a suit for declaration of continuance in service by a dismissed employee, when the dismissal is illegal, void or ultra vires, is governed by the Limitation Act, 1963.
If governed by the Limitation Act, which specific provision prescribes the limitation period for such a suit.

Legislation cited

Limitation Act, 1908s. Article 120
Limitation Act, 1963s. Article 113, s. Section 2(j), s. Section 3

Subjects

Limitation ActArticle 113illegal dismissaldeclaration suitright to suecivil servicevoid orderstatutory limitation

Judgment

STATE OF PUNJAB AND ORS.
A
v.
GURDEV SINGH, ASHOK KUMAR

AUGUST 21, 1991

[K. JAGANNATHA SHETTY, V. RAMASWAMI AND B
YOGESI-\WAR DAYAL, JJ.J

Limitation Act, 1963-Article 113-Application-Suit for decla-
ration of continuance in service by an illegally dismissed employee after
three years-Barred by limitation.

Civil Service-Dismissal-Illegal-Suit for declaration of conti- c
nuance in service-Whether Article 113, Limitation Act applies.

Limitation Act, 1963-Article ·113-"Right to sue"-Construc-
tion of-Institution of suit when indicated.
D
The respondent-plaintiff in C.A. No. 1852/89 was appointed as an
ad hoc Sub-inspector in the District Food and Supply Department. He
. absented himself from duty from 29 September 1975. On 27 January
1977, his services were terminated.

On 18 April 1984, he instituted the suit for declaration that the E
termination order was against the principles of natural justice, terms
and conditions of employment, void and inoperative and be continued to
be in service.

The State-the appellant-defendant contended that -the plaintiff's
services were terminated in accordance with the terms and conditiollS of F
his ad hoc appointment and the suit was barred by time.

The trial Court dismissed the suit on the ground of limitation, but
on appeal the Additional District Judge decreed the suit, holding that
the termination order though simplicitor in nature was passed as a
measure of punishment without an enquiry and he should have been G
given an opportnnily to explain his conduct by holding proper enquiry
and that, since the order of termination was bad, the suit was not
barred by lime.

The second appeal preferred by the Slate was dismissed by the
High Court holding that as the dismissal of the employee was illegal, H

663
664 St:PREME COURT REPORTS [1991] 3 S.C.R.

void or inoperative be!ng fn contravention of the mandatory provisions
A
of any rules or cond~tions t.1f service, there was no linlitation to bring a
suit for declaration of continuance in service.

The respondent-plaintiff in C.A. No. 4772/89 was appointed on. 14
November 1?77. On 15 March 1979, he was discharged from service for
B some misconduct and against which appeal was made, which was re-
jected on 15.6.1979.

When his revision petition was dismissed on 30.11.1979 he
brought a suit on 12.2.1985 seeking declaration that the order discharg-
ing him from service was illegal, ultra vires, unconstitutional against the
principles of natural justice and continuance in service.
c
The trial court dismissed the suit. The appeal preferred by the
plaintiff was allowed by the Additional District Judge that the plaintiff
was discharged from service in contravention of the mandatory provi·
sions of the rules and as such it had no legal effect. There was no period of
D limitation for instituting the suit for declaration that such a dismissal
order was not binding upon the plaintiff. The High Court dismissed the
second appeal in limine. · ~

On the question, whether limitation governs the suit for declara-
tion by a dismissed employee, if the dismissal was illegal, void or
E inoperative being in contravention of the mandatory provisions of any
rules or conditions of service, this Court, allowing the appeals of the
State-the defendant,

HELD: I. The Court's function on the presentation of plaint is r\. ,
simply to examine whether, on the assumed facts, the plaintiff is within
F time. The Court has to find out when the "right to sue" accrued to the
plaintiff. If a suit is not covered by any of the specific articles prescrib-
ing a period of limitation, it must faU within the residuary article. [667H-668A)

2. A suit for declaration that an order of dismissal or termination
from service passed against the plaintiff is wrongful, illegal or ultra
G vires is governed by Article ll3 of the Limitation Act. [670G-H)
f
3. The party aggrieved by the invalidity of the order has to
approach the Court for relief of declaration that the order against him
is inoperative and not binding upon him. He must approach the Court
within the prescribed period of limitation. If the statutory time limit
H expires the Court cannot give the declaration sought for. [669E-F)
STATE OF PUNJAB v. GURDEV SINGH 665

4. If an act is void or ultra vires it is enough for the Court to A
declare it so and it collapses automatically. It need not he set aside. The
aggrieved party can simply seek a declaration that it is void and not
.~ binding upon him. A declaration merely declares the existing state of
affairs, and does not 'quash' so as to produce a new state of affairs. [668F-G]
B
But nonetheless the impugned dismissal order has at least a de ·
facto operation unless and until it is declared to be void or nullity by a
competent body or Court. [6688]

Smith v. East Elloe Rural Disrict Council, [1956] AC 736 at 769,
referred to.
c
Prof. Wade: Administrative Law, 6th Ed. P. 352, referred to.

State of M. P. v. Syed Quamarali, [1967] 1 SLR 228, distinguished.

lagdish Prasad Mathur and Ors. v. United Provinces Govern-
D
ment, AIR 1956 All 114 and Abdul Vakil v. Secretary of State and Anr ..
AIR 1943 Oudh 368, Approved.

- , State of Punjab v. Ajit Singh, [1988] 1 SLR 96 and State of
Punjab v. Ram Singh, [1986] 3 SLR 379, over-ruled.

5. The words "right to sue" ordinarily mean the right to seek E
relief by means oflegal proceedings. Generally, the right to sue accrues
only when the cause of action arises, that is, the right to prosecute to
obtain relief by legal means. The suit must be instituted when the right
)'- · asserted in the suit is infringed or when there is a clear and unequivocal
threat to infringe that right by the defendant against whom the suit is
instituted. [668C-D] F

Mt. Bole v. Mt. Koklam and Ors., AIR 1930 PC 270 and Gannon
Dunkerley and Co. v. The Union of India, AIR 1970 SC 1433,
followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1852 G
& 4772 of 1989.

From the Judgment and Order dated 25.5.1988 & 11.11.1988 of
the Punjab and Haryana High Court in R.S.A. Nos. 2404 of 1987 and
2246 of 1988.
H
666 SUPREME COURT REPORTS I 1991! 3 S.C.R.

A.S, Saha! and G.K. Bansal for the Appellants.
A
Atul Nanda,, Francis. Victor, S.K. Mehta (N.P.), Subhash
G. Jindal and N.A. Siddiqui for the Respondents. ~-

The Judgment of the Court was delivered by
B
K . .JAGANNATHA SHETTY, J. These appeals against the
decision of the High Court of Punjab & Haryana raise a short issue
concerning limitation governing the suit for declaration by a dismissed
employee that he continues to be in service since his dismissal was void
and inoperative. The High Court has observed that if the dismissal of
C the employee is illegal, void or inoperative being in contravention of
the mandatory provisions of any rules or conditions of service, there is
no limitation to bring a suit for declaration that the employee con-
tinues to be in service.

The facts giving rise to these appeals, as found by the Courts
D below, may be summarised as follows:

CA No. 1852/89 The respondent in this appeal was appointed as
an ad hoc sub-inspector in the District Food and Supply Department of
Punjab State. He absented himself from duty with effect from 29 ,
September 1975. On 27 January 1977, his services were terminated. ;·
E On 18 April 1984, he instituted the suit for declaration that the termi- j
nation order was against the principles of natural justice, terms an~
conditions of employment, void and inoperative and he continues to\
be in service. The State resisted the suit contending inter alia, that the I
plaintiff's services were terminated in accordance with the terms and i
conditions of his ad hoc appointment and the suit was barred by time.
F The trial court accepted the plea of limitation and dismissed the suit,
but on appeal the Additional District Judge, Jullundhar decreed the
suit. He observed that the termination order though simpliciter in
nature· was passed as a measure of punishment. The plaintiff's services
were terminated for unauthorised absence without an enquiry and he
should have been given an opportunity to explain his conduct by hold-
G ing proper enquiry. On the plea of limitation, learned Additional Dis-
trict Judge held that no limitation is prescribed for challenging an
illegal order. Since· the order of termination was bad, the suit was not
barred by time. In the second appeal preferred by the State the High
Court agreed with the view following its earlier decisions.

H CA No. 4772/89 The respondent. in this appeal was a Railway
STATE OF PUNJAB v. G\JRDEV SINGH [SHETTY, J.I 667

Police Constable. He was appointed on 14 November 1977. On 15
A
March 1979, he was discharged from service for some misconduct. On
_J 15 June 1979, his appeal was rejected by AIG, Railways, Patiala,
Punjab. On 30 November 1979, his revision petition was dismissed by
the Inspector General of Police, Punjab. On 12 February 1985 he
brought a suit seeking declaration that the order discharging him from
service and confirmed in the appeal and revision, was illegal, ultra B
vires, unconstitutional and against the principles of natural justice and
he continues to be in service as constable. The trial court dismissed the
suit. The appeal preferred by the plaintiff was accepted by the Addi-
tional District Judge who decreed the suit as prayed for. He has inter
·"" a/ia stated that the plaintiff was discharged from service in contraven-
tion of the mandatory provisions of the rules and as such it has no legal
effect. There is no period of limitation for instituting the suit for decla-
c
ration that such a dismissal order is not binding upon the plaintiff.
While affirming thar principle, the High Court dismissed the second
appeal in limine.

These are not the onlicases in which the Punjab and Haryana D
High Court has taken the view that there is no limitation for instituting
,~ the suit for declaration by a dismissed or discharged employee on the
ground that the dismissal or discharge was void or inoperative. The
High Court has repeatedly held that if the dismissal, discharge or
termination of services of an employee is illegal, unconstitutional or
against the principles of natural justice, the employee can approach E
the Court at any time seeking declaraiion that he remains in service.
The suit for such reliefs is not governed by any of the provisions of the
..} Limitat!on Act [See: {i) State of Punjab v. Apt Singh, [1988] 1 SLR 96 and
(ii) State of Punjab v. Ram Singh, [1986] 3 SLR 379.]

First of all, to say that the suit is not governed by the law of f
Limitation runs afoul of our Limitation Act. The statute of limitation
was intended to provide a time limit for all suits conceivable. Section 3
of the Limitation Act provides that a suit, appeal or application
instituted after the prescribed "period of limitation" must subject to
the provis.ions of Sections 4 to 24 be dismissed although limitation has
not been set up as a defence. Section 2(J) defines the expression G
"period of limitation" to mean the period of limitation prescribed in
the Schedule for suit,. appeal or application ..Section 2{J) also defines,
, "prescribed period" to mean the period of limitation computed in
- accordance with the provisions of the Act. The Court's function on the
presentation of plaint is simply to examine whether, on the assumed
facts, the plaintiff is within time. The Court has to find out when the H
6611 SUPREME COURT REPORTS I 1991] 3 S.C.R.

"right to sue" accrued to the plaintiff. If a suit is not covered by any of ,'
A
the specific articles prescribing a period of limitation, it must fall !
within the residuary article. The purpose of the residuary article is to
provide for cases which could not be covered by any other provision in
', .
the Limitation Act. The residuary article is applicable to every variety
of suits not otherwise provided for. Article 113 (corresponding to Arti-
B cle 120 of the Act 1908) is a residuary article for cases not covered by
any other provisions in the Act. It prescribes a period of three years
when the right to sue accrues. Under Article 120 it was six years which
has been reduced to three years under Article 113. According to the third
eolurnn in Article 113, time commences to run when the right to sue
accrues. The words "right to sue" ordinarily mean the right to seek
relief by means of legal proceedings. Generally, the right to sue
c accrues only when the cause of action arises, that is, the right to
prosecute to obtain relief by legal means. The suit must be instituted
when the right asserted in the suit is infringed or when there is a clear
and unequivocal threat to infringe that right by the defendant against
whom the suit is instituted (See: (i) Mt. Bole v. Mt. Kok/am and Ors.,
D AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. v. The Union of
India, AIR 1970 SC 1433).

Jn the instant cases, the respondents were dismissed from
service. May be illegally. The order of dismissal has clearly infringed
their right to continue in the service and indeed they were precluded
E from attending the office from the date of their dismissal. They have
not been paid their salary from that date. They oame forward to the
Court with a grievance that their dismissal from service was no dismis-
sal in law. According to them the order of dismissal was illegal, -\_,
inoperative and not binding on them. They wanted the Court to
declare that their dismissal was void and inoperative and not binding
F on them and they continue to be in service. For the purpose of these
cases, we may assume that the order of dismissal was void inoperative
and ultra vires, and not voidable. If an Act is void or ultra vires it is
enough for the Court to declare it so and it collapses automatically. It
need not be set aside. The aggrieved party can simply seek a declara-
tion that it is void and not binding upon him. A declaration merdy
G declares the existing state of affairs and does not 'quash' so as to.
produce a new state of affairs.

But nonetheless, the impugned dismissal order has atleast a de
facto operation unless and until it is declared to be void or nullity by a
competent body or Court. In Smith v. East Elloe Rural District
H Council, [1956] AC 736 at 769 Lord Redcliffe observed:
STATE OF PUNJAB v. GURDEV SINGH [SHETTY, J.] 669

"An order even if not made in good faith, is still an act A
capable of legal consequences. It bears no brand of
invalidity upon its forehead. Unless the necessary pro-
ceedings are taken at law to establish the cause of invali-
dity and to get it quashed or otherwise upset, it will
remain as effective for its ostensible purpose as the most
impeccable of.orders." B

Apropos to this principle, Prof. Wade states: "the principle must
be equally true even where the 'brand' of invalidity' is plainly visible;
for their also the order can effectively be resisted in law only by obtain-
ing the decision of the Court (See: Administrative Law 6th Ed.
p. 352). Prof. Wade sums up these principles:
c
'The truth of the matter is that the court will invalidate an
order only if the right remedy is sought by the right person
in the right proceedings and circumstances. The order may
be hypothetically a nullity, but ,;1e Court may refuse to
quash it because of the plaintiff's lack of standing, because D
) he does not deserve a discretionary remedy, because he has
waived his rights, or for some other legal reason. In any
such case the 'void' order remains effective and is, in
reality, valid. It follows that an order may be void for one
purpose and valid for another, and that it may be void
against one person but valid against another." (Ibid p. 352) E

It will be clear from these principles, the party aggrieved by the
invalidity of the order has to approach the Court for relief of declara-
tion that the order against him is inoperative and not binding upon
him. He must approach the Court within the prescribed period of
limitation. If the statutory time limit expires the Court cannot give the F
declaration sought for.

Counsel for the respondents however, has placed strong reliance
on the decision of this Court in State of M.P. v. Syed Quamarali, [1967]
1 SLR 228. The High Court has also relkd upon that decision to hold
that the suit is not governed by the limitation. We may examine the G
·-'\. case in detail. The respondent in that case was a sub-inspector in the
Central Province Police Force. He was dismissed from service on 22
December 1945. His appeal against that order was dismissed by the
Provincial Government, Central Provinces and Berar on Y April 1947.
He brought the suit on 8 December 1952 on allegation that the order of
dismissasl was contrary to the para 241 of the Central Provinces and H
670 SUPREME COURT REPORTS [1991) 3 S.C.R.

A Berar Police Regulations and as such contrary to law and void, and
prayed for recovery of Rs.4724/5 on account of his pay and dearness
allowance as sub-inspector of police for the three years immediately
preceding the date of the institution of the suit. The suit was decreed
and in the appeal before the Supreme Court, it was urged that even if
the order of dismissal was contrary to the provisions of law, the dismis-
B sal remained valid until and unless it is set aside and no relief in respect
of salary could be granted when the time for obtaining an order setting
aside the order of dismissal had elapsed. It was observed:

"We therefore hold that the order of dismissal having been
made in breach of a mandatory provision of the rules sub-
ject to which only the power of punishment under section
c 7 could be exercised, is totally invalid. The order of dismis-
sal had therefore, no legal existence and it was not neces-
sary for the respondent to have the order set aside by a
Court. The defence of limitation which was based only on
the contention that the order had to be set aside by a court
D before it became invalid must therefore be rejected."

These observations are of little assistance to the plaintiffs in the
present case. This Court only emphasized that since the order of dis-
missal was invalid being contrary to para 241 of the Berar Police Regu-
lations, it need not be set aside. But it may be noted that Syed Qamar-
E ali brought the suit within the period of limitation. He was dismissed
on 22 December 1945. His appeal against the order of dismissal was
rejected by the Provincial Government on 9 April 1947. He brought
the suit which has given rise to the appeal before the Supreme Court
on 8 December 1952. The right to sue accrued to Syed Qamarali when
the Provincial Government rejected his appeal affirming the original
F order of dismissal and the suit was brought within six years from that
date as prescribed under Article 120 of the Limitation Act, 1908.

The Allahabad High Court in Jagdish Prasad Mathur and Ors. v.
United Provinces Government, AIR 1956 All 114 has taken the view
that a suit for declaration by a dismissed employee on the ground that
G his dismissal is void,, is governed by Article 120 of the Limitation Act.
j
A similar view has been taken by Oudh Chief Court in Abdul Vakil v.
Secretary of State and Anr., AIR 1943 Oudh 368. That in our opinion is
the correct view to be taken. A suit for declaration that an order of
dismissal or termination from service passed against the plaintiff is
wrongful, illegal or ultra vires is governed by Article 113 of the Limita-
H ti on Act. The decisiqn to the contrary taken by the Pun jab & Haryana
0

STATE OF PUNJAB v. GURDEV SINGH [SHETTY. J.) 671

High Court in. these and other cases ((i)State of Puniab v. Ajit Singh, A
[1988] 1 SLR 96 and (ii) State of Punjab v. Ram Singh, [1986] 2 SLR
379 is not correct and stands overruled.

t In the result, we allow the appeals, set aside the judgment and
decree of the· High Court and dismiss the suit in each case. In the
circumstances, however, we make no order as to costs.
B

V.P.R.
Appeals allowed.

,,

,