UNION OF INDIA AND ORS.versusNANDLAL RAIGAR

                         UNION OF INDIA AND ORS.                                  A
                                      v.
                            NANDLAL RAIGAR

                               APRIL 16, 1996

              [K. RAMASWAMY AND S.P. BHARUCHA, JJ.]                               B

         Seivice Law :

        Dismissal from service for fabrication of record-Suit filed by employee
for a declaration that the order of dismissal was illegal-Limitation-Would        C
1u11 from the date of dismissal-Delinquent employee not availing the remedy

within the limitation period-Not open to him to challenge that the order was
in violation of the Rules-Nor could he ignore the order and then file tile suit
at any time of his pleasure-Limitation Act, 1963-A1ticle 113.

     State of Madhya Pradesh v. Syed Qamarali, [1967) SLR 228; held D
inapplicable.

         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2914 of
1986.

     From the Judgment and order dated 11.12.85 of the Rajasthan High             E
Court in S.A. No. 117 of 1985.

         K.R. Choudhary, C.V. Subba Rao and Y.P. Mahanjan f9r the appel-
lants.

         M.A. Krishna Moorthy for the Respondent.                                 F

         The following Order of the Court was delivered :

      The respondent, while working as Accountant in the Telephones
Department in Rajasthan was charged for fabrication of record and was
dismissed from service on May 9, 1973. After dismissal of the departmental G
appeals, he laid the suit in 1980 seeking declaration that the order of his
dismissal was illegal. The appellants have taken, apart from others, limita-
tion as one of the objections. The trial judge while dismissing the suit on
the ground of limitation, had recorded the findings that enquiry con-
templated under the Rules was not properly conducted and that, therefore, H
                                    407
    408                   SUPREME COURT REPORTS (1996] SUPP.1 S.C.R.

A his dismissal from service was not correct in law. The respondent carried
    the matter in appeal. The appellate Court set aside the order which was
    confirmed in the second appelli. Thus this appeal by specilli leave.

         The only question is : whether the suit is within limitation'? Article
B 113 of the Limitation Act, 1963 prescribes three years when the right to
  sue accrues for the purpose of enforcing the right. Since the right to sue
  had accrued to the respondent on May 9, 1973 and the date of dismissal
  of the departmental appeal is August 26, 1974, the later date would provide
  limitation and would be considered to be the date from which the running
  of the limitation began, viz., August 26, 1974. Once the limitation starts
C running its due course, on expiry of three years from that date, the right
  to seek remedy to the respondent is lost. The High Court has upheld the
  judgment of the appellate Court on the finding that from the inception the
  order of dismissal was not made in accordance with law and -as the
  respondent had not filed any cross-objection against those findings
D recorded by the trial Ccurt, it would not be open to him to object to the
  decree for reinstatement. We find no force in the reasoning of the High
  Court or the appellate Court. It is true that this Court in State of Madhya
  Pradesh v. Syed Qamarali, [1967] SLR 228, had held in paragraph 20, relied
  upon by learned counsel for the respondent, that once the order of dis-
  missal is found to have no legal existence, it was not necessary for the
E respondent to have the orders set aside by a court. It would be seen that
  in that case the respondent was prosecuted for the offence and he was
  acquitted on merits. The order of dismissal was founded upon the very
  same misconduct which was subject-matter of. the prosecution. Since the
   respondent therein was acquitted on merits, there was no foundation for
F dismissal of the respondent from service. Under those circumstances, the
  order was considered to be non-existent and, therefore, it was held that he
   was not required to file a separate suit for setting aside the order of
   dismissal. The ratio of the said decision has no application to the facts in
   a case where the departmental enquiry was conducted and he was found
   to have committed misconduct as provided under the rules. The limitation,
G therefore, would begin to run from the date of dismissal from service. If
   the dismissed delinquent employee does not avail of the remedy by im-
   pugning the order of dismissal within limitation, then it would not be open
   to him to challenge in the suit that the order of dismissal is in violation of
   the Rules, that he could ignore the order and then file the suit at any time
H at his pleasure. If that contention is given acceptance, startling consequen-
                              U.0.1. v. N. RAIGAR                         409

ces would follow. Under these circumstances, this Court did not intend to        A
lay down that even in a case of dismissal after due enquiry and where the
Order is allowed to become final, it would be ignored by the delinquent
employee and contended that the limitation does not stand as a bar to him.
Moreover, the interpretation given by this Court is based upon paragraph
241 of the Police Regulations. The ratio therein would be considered to be
applicable to the facts in that case.
                                                                                 B

         The appeal is accordingly allowed, but, in the circumstances, without
costs.

      Since pursuant to the interim directions given by this Court the
respondent has been reinstated, the salary paid to him during his con-           c
tinuance in Service is directed not to be recovered.