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TMI Blog1991 (8) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... he dismissal of 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 continues to be in service. The facts giving rise to these appeals, as found by the Courts 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. On 18 April 1984, he instituted the suit for declaration that the termination order was against the principles of natural justice, ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom service and confirmed in the appeal and revision, was illegal, ultra 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 Additional District Judge who decreed the suit as prayed for. He has inter alia stated that the plaintiff was discharged from service in contravention 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 declaration that such a dismissal order is not binding upon the plaintiff. While affirming that principle, the High Court dismissed the second appeal in limine. These are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 668 "right to sue" accrued to the plaintiff. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fail 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 Article 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal 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 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. 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. In Smith v. East. Elloe Rural District Council, [1956] AC 736 at 769 Lord Redcliffe observed: 669 " An order even if not made in good faith, is still an actcapable of legal con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the prescribed period of limitation. If the statutory time limit expires the Court cannot give the 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 relied upon that decision to hold that the suit is not governed by. the limitation. We may examine the 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 9 April 1947. He brought the suit on 8 December 1952 on allegation that the order of dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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 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 his dismissal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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