1. Removal from service — Suit challenging removal — Impleadment of necessary parties — Objection regarding limitation. (Para 2 , 3 )
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1999 Supreme(SC) 1351
SUPREME COURT OF INDIA
A.P.Misra : J.Jagannadha Rao
R.R.Naidu
Versus
State Of M.P.
Case No. : 6737 of 1998
Date of Decision : 11/18/99
Delay in impleading necessary parties may be condoned under Section 21(1) of the Limitation Act if bona fide. To determine if a termination is punitive or simpliciter, the court must examine original records to distinguish between the motive and the foundation of the order.
Headnote:(A) Limitation Act - Section 21(1) - Code of Civil Procedure - Section 80 and Order 41 Rule 27(1)(b) - Impleadment of parties - Condonation of delay - Delay in impleading necessary parties can be condoned under the proviso to Section 21(1) of the Limitation Act if the omission was bona fide and occurred by mistake. (Para 4)
(B) Service Law - Termination of service - Punitive vs. Termination Simpliciter - To determine whether a removal order is punitive or a termination simpliciter, it is necessary to examine the original record to ascertain if the allegations were the "foundation" of the removal or merely the "motive" and whether any categorical findings of guilt were recorded. (Paras 7, 8)
(C) Code of Civil Procedure - Order 41 Rule 27(1)(b) - Production of additional evidence in appellate court - The court may call for original records if it is necessary for enabling the court to pronounce a satisfactory judgment. (Para 7)
Facts of the case:
A clerk was removed from service and subsequently filed a suit challenging the removal. Initially, only the State was impleaded. Upon remand, the District Judge and the Registrar were added as parties, but this was challenged on the grounds of limitation. The High Court had previously held the removal was punitive and violated natural justice, though it upheld the limitation bar against the newly added parties.
Findings of Court:
The delay in impleading the necessary parties was bona fide and is condoned. However, the High Court erred in deciding the punitive nature of the removal without examining the original administrative records.
Issues: Whether the suit was barred by limitation against the newly impleaded parties and whether the High Court could determine the nature of the removal order without calling for the original records.
Ratio Decidendi: Delay in impleading parties can be condoned under Section 21(1) of the Limitation Act if bona fide. Furthermore, a determination on whether a termination is punitive requires a review of the administrative file to distinguish between the "motive" and the "foundation" of the order, as required under Order 41 Rule 27(1)(b) of the Code of Civil Procedure to ensure a satisfactory judgment.
Result: Appeal allowed to the extent that the order of the High Court on limitation is reversed and the matter is remanded to the High Court to decide on the punitive nature of the removal after examining the records.
Legal Category Hierarchy
Table of Contents
2. Whether adverse findings of a court become final if the respondents do not prefer an independent appeal. (Para 6 )
3. Delay in impleading parties may be condoned if bona fide; determining punitive nature of termination requires examining records to distinguish motive from foundation. (Para 4 , 7 , 8 )
4. Determining if termination is punitive requires examining records to ascertain whether allegations were the foundation of the order or merely the motive. (Para 8 , 9 )
5. Delay condoned; High Court finding set aside; matter remanded to High Court to determine if removal was punitive after examining records. (Para 9 , 10 )
6. Can delay in impleading necessary parties be condoned?
Yes, delay in impleading parties can be condoned under the proviso of sub-section (1) of Section 21 of the Limitation Act if the failure to implead was bona fide. (Para 4 )
7. Can a party challenge an adverse finding without filing an independent appeal?
Yes, respondents can attack an adverse finding without filing an independent appeal. (Para 6 )
8. How is the punitive nature of a removal order determined in termination simpliciter cases?
The court must examine the original records to determine whether the allegations against the employee were the foundation for the removal or merely the motive. (Para 7 , 8 , 9 )
9. When can a court call for original records under Order 41 Rule 27 of the CPC?
Under Order 41 Rule 27(1)(b) of the CPC, a court may call for records if it is necessary for the court to enable it to pronounce a satisfactory judgment. (Para 7 )
(1) LEAVE granted.
(2) THE appellant was a Clerk working in the Office of the District Judge at Bilaspur who was removed from service on 10-6-1961. A departmental appeal filed by him was dismissed on 16-12-1968 by the Registrar of the High Court of Madhya Pradesh at Jabalpur. He gave a notice of suit to the State of Madhya Pradesh under Section 80 of the Code of Civil Procedure on 29-5-1971. He filed a suit on 13-9-1971 impleading the State of Madhya Pradesh as the sole defendant. The proceedings went up to the High Court and the matter was remanded by the High Court directing that the District Judge and the Registrar of the Madhya Pradesh High Court be made parties. Thereafter, the appellant impleaded the District Judge and the Registrar as parties but objection was taken on the ground of limitation.
(3) THE trial courts finding was that the order of removal was bad in law but the suit was barred by limitation as against the District Judge and the Registrar. The plaintiff preferred an appeal to the appellate court. The appellate court while confirming the findings on the question of limitation reversed the finding of the trial Judge on merits as to the validity of the removal order and held that it was valid. The plaintiff preferred the second appeal to the High Court. The High Court confirmed the findings in relation to the limitation but again reversed the findings of the first appellate court and held that the order of removal was one in the nature of punishment and was bad for violation of natural justice. The High Court, therefore, dismissed the appeal.
(4) IN this appeal, we have heard counsel on both sides. In our view, if there is delay in impleading the District Judge and the Registrar of the High Court it can be condoned under the proviso of sub-section (1) of Section 21 of the Limitation Act. The plaintiff had bona fide not impleaded the District Judge and the Registrar but by mistake had impleaded the State of Madhya Pradesh when he filed the suit in 1971. We condone the delay as being bona fide.
(5) ONCE the suit is held to be in time against the District Judge and the Registrar, the next question is as to whether the High Court is right in reversing the finding of the appellate court and in holding that the order of removal is bad in law.
(6) LEARNED counsel for the appellant-plaintiff contended that the finding of the High Court has become final inasmuch as the respondents have not preferred any independent appeal. We are of the view that the respondents can, without filing an appeal against the adverse finding, attack it vide Ravinder Kumar Sharma v. State of Assam.
(7) SO far as the finding of the appellate court on the question of validity of the removal order was concerned it was necessary for the High Court to call for the original record relating to the removal of the plaintiff and find out the circumstances immediately preceding the order of the removal to find out whether the removal was based upon any categorical findings arrived at in order to find out his guilt. This should have been done under Order 41 Rule 27(1 )(c) [sic (b)] CPC as a requirement of the Court for enabling it to pronounce a satisfactory judgment (see K. Venkataramiah v. A. Seetharama Reddy).
(8) WE are of the view that the High Court could not have given any finding as to the punitive nature of the order without looking into the record. In this connection the judgments of this Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd. and Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences contain a review of the case-law on the subject as to when allegations can be said to be "motive" or "foundation" in a termination simpliciter. The judgments show that it is necessary to look into the file to know the background and whether any finding as to guilt is recorded.
(9) THE finding of the High Court is therefore, set aside and the matter is remande
