//
you're reading...
legal issues

Limitation Act – suit for declaration – 3 years from the date of cause of action -mere correspondence does not extend the limitation – His second time appointment was as fresh candidate and on temporary basis – not challenged – seniority list prepared after rejecting his application – no suit filed – only correspondences which were rejected from time to time – trial court, appellant court and high court decreed the suit – Apex court held that In our opinion, the suit was hopelessly barred by law of limitation. Simply by making a representation, when there is no statutory provision or there is no statutory appeal provided, the period of limitation would not get extended. The law does not permit extension of period of limitation by mere filing of a representation. – by allowing the civil appeal , apex court set aside the lower courts orders = STATE OF TRIPURA & ORS. …APPELLANTS VERSUS ARABINDA CHAKRABORTY & ORS. ….RESPONDENTS = 2014(April.Part ) judis.nic.in/supremecourt/filename=41439

Limitation Act – suit for declaration – 3 years from the date of cause of action -mere correspondence does not extend the limitation –  His second time appointment was as fresh candidate and on temporary basis – not challenged – seniority list prepared after rejecting his application – no suit filed – only correspondences which were rejected from time to time – trial court, appellant court and high court decreed the suit – Apex court held that  In our opinion, the suit was hopelessly barred  by  law  of  limitation. Simply by making a representation, when there is no  statutory  provision or there is no statutory appeal provided, the period of limitation  would not get extended.  The  law  does  not  permit  extension  of  period  of

 limitation by mere filing of a representation.  – by allowing the civil appeal , apex court set aside the lower courts orders = 

 Though the respondent knew it well that by virtue of  an  order  dated

22.11.1967, he was given a fresh appointment on purely temporary basis as  a

librarian and he had lost his earlier seniority, he  made  a  representation

for his seniority in service  from  the  day  on  which  he  was   initially

appointed  as  a  librarian  in  1964.   The  representation  made  by   the

respondent was rejected on 31.08.1973.  It is also pertinent to note that  a

draft  seniority  list  of  Librarians  was  published  on  11.11.1972   and

thereafter, the said draft list was finalized and the final  seniority  list

was published on 24.09.1975.  In the said  seniority  list  it  was  clearly

shown that service of  the  respondent  had  commenced  from  22.11.1967  in

pursuance of his fresh appointment.

 

 

      Inspite of the aforestated fact,  the  respondent  continued  to  make

representations and all his representations were rejected.   Ultimately  the

respondent filed Title Suit No. 175 of 1979 on 19.09.1979 in  the  Court  of

Munsif, Sadar, West Tripura, praying for the aforestated  reliefs.   

In  the

said suit, the respondent had referred to all the  representations  made  by

him and had also stated that reply to his last representation was  given  on

15.1.1979  and  therefore,  the  suit  was  filed  within  the   period   of

limitation.=

 

In the written statement, the employer-appellant had taken a  specific

stand with regard to limitation to the effect that the respondent had  filed

the suit after more than 13 years because  he  had  joined  his  service  in

September, 1967 and he wanted, by virtue of the prayer in the suit, that  he

should be deemed to have been appointed with effect from 12.08.1964 =

The trial court had expressed

   its view to the effect that the period of limitation would start from the

   date on which last representation made by  the  respondent  was  decided.

   Therefore, the suit was treated to have been filed within the  period  of

   limitation and the said view was confirmed by both the appellate  courts.

 

 It is a settled legal position that  the   period  of  limitation  would

   commence from the date on which the cause of  action  takes  place.   Had

   there been any statute giving right of appeal to the  respondent  and  if

   the  respondent  had  filed  such  a  statutory  appeal,  the  period  of

   limitation would have commenced from the date when the  statutory  appeal

   was decided.  In the instant case, there was no provision with regard  to

   any statutory appeal.  The respondent kept on making representations  one

   after another and all the representations had been rejected.   Submission

   of the respondent to the effect  that  the  period  of  limitation  would

   commence from the date on which  his  last  representation  was  rejected

   cannot be accepted.  If accepted, it would be nothing but travesty of the

   law of limitation.  One can go on making representations for 25 years and

   in that event one cannot say that the period of limitation would commence

   when the last representation was decided.  On this legal issue,  we  feel

   that the courts below committed an  error  by  considering  the  date  of

   rejection of the last representation as the date on which  the  cause  of

   action had arisen.  This could not have been done.

14. We, therefore,  quash  and  set  aside  the  order  of  the  High  Court

   confirming the orders passed by the trial court  as  well  as  the  first

   appellate court.  As a result thereof, the suit  stands  dismissed.   The

   appeal is allowed with no orders as to costs.

2014(April.Part ) judis.nic.in/supremecourt/filename=41439
ANIL R. DAVE, VIKRAMAJIT SEN

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1322 OF 2007

 
STATE OF TRIPURA & ORS. …APPELLANTS

 

VERSUS
ARABINDA CHAKRABORTY & ORS. ….RESPONDENTS

1

 

 
2 J U D G M E N T

 
1 ANIL R. DAVE, J.

 

1. Being aggrieved by the judgment delivered in RSA No. 20 of 1998 by the
High Court of Gauhati at Agartala on 17th March, 2006, the State of
Tripura and others-employers of respondent no.1 have filed this appeal.
2. The facts giving rise to the present appeal, in a nutshell are as under:
Respondent No. 1 had been appointed as a librarian by the Directorate
of Education, Government of Tripura by an order dated 04.09.1964 and he had
joined his duties at Birchandra Public Library, Agartala on 12.09.1964.
While in service, he was sent to Banaras Hindu University, Varanasi to
undergo further education and to get qualification of Bachelor of Library
Science during the academic year 1965-66. After completion of his studies,
he had resumed his duties on 27.07.1966. Thereafter, the respondent-
employee had remained absent without any intimation or sanctioned leave for
about one year i.e. from 01.08.1966 to 20.09. 1967. During his absence
from service, by letter dated 13.08.1966, the respondent had been called
upon to report at the place of his duty within seven days, failing which
his service was to be terminated. Inspite of the said notice dated
13.08.1966, the respondent did not report at the place of his work and
therefore, a Memorandum dated 14.11.1966 had been issued to the respondent
calling upon him to resume his duties, but as the respondent had not
resumed his duties, his services had been terminated. It was learnt
subsequently that during the period when he had remained unauthorisedly
absent, he had undergone further studies and had attained degree of Masters
in Library Science and after attaining the said qualification, he had once
again approached the concerned authorities for his re-appointment. Looking
at the fact that the respondent had become better qualified, he was given
a fresh appointment by an order dated 22.11.1967 on purely temporary basis
as a librarian and again he was posted at Birchandra Public Library,
Agartala, Tripura.
Though the respondent knew it well that by virtue of an order dated
22.11.1967, he was given a fresh appointment on purely temporary basis as a
librarian and he had lost his earlier seniority, he made a representation
for his seniority in service from the day on which he was initially
appointed as a librarian in 1964. The representation made by the
respondent was rejected on 31.08.1973. It is also pertinent to note that a
draft seniority list of Librarians was published on 11.11.1972 and
thereafter, the said draft list was finalized and the final seniority list
was published on 24.09.1975. In the said seniority list it was clearly
shown that service of the respondent had commenced from 22.11.1967 in
pursuance of his fresh appointment.
Inspite of the aforestated fact, the respondent continued to make
representations and all his representations were rejected. Ultimately the
respondent filed Title Suit No. 175 of 1979 on 19.09.1979 in the Court of
Munsif, Sadar, West Tripura, praying for the aforestated reliefs. In the
said suit, the respondent had referred to all the representations made by
him and had also stated that reply to his last representation was given on
15.1.1979 and therefore, the suit was filed within the period of
limitation.
In the written statement, the employer-appellant had taken a specific
stand with regard to limitation to the effect that the respondent had filed
the suit after more than 13 years because he had joined his service in
September, 1967 and he wanted, by virtue of the prayer in the suit, that he
should be deemed to have been appointed with effect from 12.08.1964
The suit was decreed in favour of the respondent and therefore, the
appellant employer filed Title Appeal No. 28 of 1985 against the judgment
dated 18.04.1985 delivered by the trial court. The judgment delivered by
the trial court was upheld by the appellate court and therefore, second
appeal was filed before the High Court which was also dismissed by virtue
of the impugned judgment.
3. The learned counsel appearing for the appellant- employer had submitted
that the courts below had committed a mistake by believing that the suit
was filed within the period of limitation. The trial court had expressed
its view to the effect that the period of limitation would start from the
date on which last representation made by the respondent was decided.
Therefore, the suit was treated to have been filed within the period of
limitation and the said view was confirmed by both the appellate courts.
4. The learned counsel for the appellant had further submitted that on
facts also, the courts below committed a mistake because the respondent
had been given a fresh appointment by an order dated 22.11.1967. Initial
appointment made in 1964 had already been terminated as the respondent
had remained absent without sanctioned leave. He had further submitted
that upon perusal of the appointment order dated 22.11.1967, it is clear
that the respondent had been given a fresh appointment as a librarian on
temporary basis because his earlier appointment had already come to an
end.
5. It had been further submitted that the respondent wanted continuity of
service with effect from 12.08.1964 though his service had already been
terminated as he had remained absent unauthorisedly. In the
circumstances, the respondent had no right to have continuity of service.
He had further submitted that the respondent ought to have filed suit
within 3 years from the date of order giving him fresh appointment if he
was aggrieved by the said order.
6. Alternatively, it had been submitted that the draft seniority list of
Librarians had been published on 11.11.1972 which had been finalized on
24.09.1975 and the said fact was known to the respondent. The respondent
was made aware of the fact that he was appointed with effect from 22.11.
1967 and in that event the period of limitation would start from
11.11.1972 when the draft seniority list was published or at the most
with effect from 24.09.1975 when the draft seniority list was finally
published. Instead of approaching the court, the respondent kept on
making several representations which had been rejected. His
representation had been rejected on 19.07.1976. Even after rejection of
his representation on 19.07.1976 he had made another representation on
16.02.1978 to the Director of Education, Tripura which had also been
rejected on 03.06.1978. Thereafter, he made another representation to
the Director of Education, which had also been rejected on 15.01.1979.
7. Looking at the above facts, it had been submitted by the learned
counsel appearing for the appellants that the title suit ought to have
been dismissed on the ground of limitation, however, not only the suit
had been decreed but the courts below had also confirmed the judgment
delivered by the trial court. He had further submitted that the appeal
deserved to be allowed with costs.
8. On the other hand, the learned counsel appearing for the respondent-
employee had tried to support the judgments delivered by the High Court
and the trial court. He had submitted that the period of limitation
would start with effect from the date on which his representation was
finally rejected by his employer and as the suit had been filed on
19.09.1979, the suit was filed within the period of limitation.
9. As the respondent had attained degree of Masters in Library Science
and he was taken back in service, his services were rightly ordered to be
continued by the trial court and the High Court had rightly confirmed the
judgment and decree passed by the first appellate court. He had,
therefore, submitted that the appeal filed in this Court deserved to be
dismissed.
9. We had heard the learned counsel appearing for the parties and had also
carefully gone through the relevant material pertaining to appointment
orders and the representations made by the respondent.
10. In our opinion, the suit was hopelessly barred by law of limitation.
Simply by making a representation, when there is no statutory provision
or there is no statutory appeal provided, the period of limitation would
not get extended. The law does not permit extension of period of
limitation by mere filing of a representation. A person may go on making
representations for years and in such an event the period of limitation
would not commence from the date on which the last representation is
decided. In the instant case, it is a fact that the respondent was given
a fresh appointment order on 22.11.1967, which is on record. The said
appointment order gave a fresh appointment to the respondent and
therefore, there could not have been any question with regard to
continuity of service with effect from the first employment of the
respondent. It is pertinent to note that service of the respondent had
been terminated because of his unauthorised absence. It was unfortunate
that the suit had been filed after 13 years and therefore, the relevant
record pertaining to the order of termination of the respondent had been
destroyed or could not be traced but in such an event, no harm should be
caused to the appellant-employer because the appellant-employer was not
supposed to keep the record pertaining to the order terminating service
of the respondent forever. Had the respondent filed the suit within the
period of limitation i.e. within three years from the date when he was
given a fresh appointment on 22.11.1967, possibly the Government could
have placed on record an order whereby service of the respondent had been
terminated. The respondent, after having additional qualification
approached the concerned authority in the month of November, 1967 with a
request for fresh appointment and therefore, by virtue of an order dated
22.11. 1967 he was given a fresh appointment as a librarian. In fact
there was no question of losing his seniority because he was given a
fresh appointment by virtue of the order dated 22.11. 1967.
11. The respondent did not make any representation or grievance when he was
given a fresh appointment. He knew it well that his service had been
terminated and he was obliged by the appellant authorities by giving him
a fresh appointment. Had he been aggrieved by a fresh appointment after
termination of his service, he should have taken legal action at that
time but he accepted the fresh appointment and raised the grievance about
his seniority and other things after more than a decade.
12. Even after the draft seniority list was published on 11.11.1972, which
had been finalized in September, 1975, he did not file any suit but
continued to make representations which had been rejected throughout.
13. It is a settled legal position that the period of limitation would
commence from the date on which the cause of action takes place. Had
there been any statute giving right of appeal to the respondent and if
the respondent had filed such a statutory appeal, the period of
limitation would have commenced from the date when the statutory appeal
was decided. In the instant case, there was no provision with regard to
any statutory appeal. The respondent kept on making representations one
after another and all the representations had been rejected. Submission
of the respondent to the effect that the period of limitation would
commence from the date on which his last representation was rejected
cannot be accepted. If accepted, it would be nothing but travesty of the
law of limitation. One can go on making representations for 25 years and
in that event one cannot say that the period of limitation would commence
when the last representation was decided. On this legal issue, we feel
that the courts below committed an error by considering the date of
rejection of the last representation as the date on which the cause of
action had arisen. This could not have been done.
14. We, therefore, quash and set aside the order of the High Court
confirming the orders passed by the trial court as well as the first
appellate court. As a result thereof, the suit stands dismissed. The
appeal is allowed with no orders as to costs.

………………………….J.
(ANIL R. DAVE)

 
………………………….J.
(VIKRAMAJIT SEN)
New Delhi;
April 21, 2014.
———————–
13

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,901,773 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,870 other followers

Follow advocatemmmohan on WordPress.com