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V.D. Angal Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1411 of 1963
Judge
Reported inAIR1968Bom304; (1967)69BOMLR710; (1968)IILLJ177Bom; 1967MhLJ1019
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rule 2; Limitation Act, 1908 - Schedule - Article 102; Bombay Civil Service Rules - Rules 24, 150 and 152; Constitution of India - Article 311
AppellantV.D. Angal
RespondentState of Maharashtra
Appellant AdvocateU.R. Lalit, Adv.
Respondent AdvocateG.N. Vaidya, Asst. Govt. Pleader
Excerpt:
.....he was reinstated on july 13, 1960 but resigned soon after, on september 7, 1961, he filed the suit claiming arrears of his salary from november 1, 1955 to the date of reinstatement. on the question whether the claim for arrears of salary which became due three years before the filing of the suit was barred by article 102 of the indian limitation act, 1908, the plaintiff contended that as under rule 150 of the bombay civil services rules, 1959 the plaintiff was not entitled to any part of the salary until his dismisal was held to be invalid or inoperative, his arrears of salary could be said to have accrued due on august 20, 1959 and, therefore, his claim was within time : ; that the declaration given by the court on august 20, 1959, that the order of dismissal was invalid or void..........due.'(6) in this connection, we are referred to rules 24, 150 and 152 of the bombay civil service rules. rule 24 reads:'24. subject to any exceptions specifically made in these rules, a government present commission ceases to be entitled to the pay and allowances of a post with effect from the date he assumes or relinquishes with the charge of the duties of that post, if assumes or relinquishes charge of those in the forenoon of that day; otherwise on the following day.'exceptions are not necessary for out purposes-file 150 reads:- 150. the pay and allowances of a government servant who is dismissed or removed from service cease from the date of such dismissal or removal.' rule 152 is as follows:-152. (1) when a government servant who has been dismissed, removed or suspended is.....
Judgment:

Patel, J.

(1) This appeal is by the original plaintiff who has failed substantially in the District Court. The appeal arises under the following circumstances. The plaintiff was appointed on March 24, 1955 as Medical Officer in charge of Infirmary Dispensary at Dhulia. Over and above his scheduled salary he was entitled to get Rs. 10 per month on account of the loss of private practice. A Departmental inquiry was held against him by the Collector and he dismissed him from service with effect from November 1, 1955, on 31-10-1955. He raised suit No. 10 of 1957 on 2-1-1957 contending that the order was illegal and ineffective and he continued to be in service. This suit was decreed on January 4, 1958. The appeal to the District Court, being Appeal No. 63 of 1958, was dismissed and a second appeal to this High Court, being Second Appeal No. 1126 of 1959, was dismissed on December 4, 1959, was dismissed on December 4, 1959. The plaintiff was reinstated by an order date July 13, 1960. The plaintiff has not even cared to produce the reinstatement order. On September 1, 1960 the plaintiff resigned. Thereafter the plaintiff gave notice, Ex. 21, on September 22, 1960, demanding arrears of his pay. He gave a second notice Ex. 23, on March 7, 1961 in connection with the same. On June 23, 1961, Government passed a resolution at Ex. 33 sanctioning his pay from November 1, 1957 minus such amounts as he was earning during the period in question. Eventually, he was paid a sum of Rs. 2,351.29 nP. for that period which as the receipt Ex. 31 passed by him shows, he accepted under protest. Thereafter he filed the present suit, for arrears of salary upto November 7, 1955. He claimed his salary as on November 7, 1955 until date minus the payment made by the Government.

(2) In the trial Court he also made a claim for damages on the ground of mental and bodily suffering, because of the dismissed order and also on the ground of expenses incurred by him in the prosecution of earlier suit. The trial Court decreed his claim to the extent of Rs. 4, 917.16 nP. which included the claim for mental and bodily suffering and towards legal expenses towards prior suit. The State appealed to the District Court. The District Court applied Art. 102 of the Limitation Act and awarded only such part of salary or allowance as fell within three years prior to the date of the suit. It rejected the claim of the plaintiff regarding mental and bodily suffering and also regarding the expenses of the previous trial. The plaintiff appeals and limits his claim now to a sum of Rs. 3, 000/- which Mr. Lalit says, is the arrears claimable by him in respect of the period in question i.e. from November 1, 1955 to the date of reinstatement.

(3) Mr. Vaidya relies on two decisions of this Court. In Smt. Mandodaribai v. State of Bombay, First Appeal No. 430 of 1958, Dt. 17-12-1962 (Bom), a Division Bench, in which I was a member, decided that to a suit Article 102 of the Limitation Act applies and the salary accrues from month to month as and when it became payable. In another case, Laxman Shridhar v. State of Bombay, First Appeal No. 648 of 1957, D/- 31-10-1963(Bom), again a Division Bench of this Court, where I was a party, decided that such a suit as the present was governed by the provisions of Order 2, Rule 2 of the Civil, Procedure Code. A plaintiff who challenges the order of dismissal as being illegal and void is also bound to ask for arrears of the salary to the date of the suit, and if he has not so asked, the provisions of Order 2, R. 2 of the C. P. C. applied and a second suit for arrears prior to that date would not be competent. We also applied Article 102 and held that salary was recoverable from month to month and only such portion of salary after the earlier suit could be awarded as fell within three years before the date of the second suit.

(4) Mr. Lalit contends that certain aspects of the matters were not considered by us in the earlier judgment and therefore, the question should be reconsidered. His argument is that the Civil Services Rules make substantial difference in the application of Art. 102 of the Limitation Act.

(5) Article 102 of the Limitation Act provides a period of three years for a suit for wages and the starting point is 'when the wages accrue due.'

(6) In this connection, we are referred to Rules 24, 150 and 152 of the Bombay Civil Service Rules. Rule 24 reads:

'24. Subject to any exceptions specifically made in these rules, a Government present commission ceases to be entitled to the pay and allowances of a post with effect from the date he assumes or relinquishes with the charge of the duties of that post, if assumes or relinquishes charge of those in the forenoon of that day; otherwise on the following day.'

Exceptions are not necessary for out purposes-

File 150 reads:- 150. The pay and allowances of a Government servant who is dismissed or removed from service cease from the date of such dismissal or removal.'

Rule 152 is as follows:-

152. (1) When a Government servant who has been dismissed, removed or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order -

(a) regarding the pay and allowances to be paid to the Government servant for the period of his absence from duty; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority mentioned in sub-rule (1) is of opinion that the Government servant has been fully exonerated or, in the case of suspension, that it was wholly injustified, the Government servant shall be given the full pay and allowances to which he would have been entitled had he not been dismissed, removed or suspended, as the case may be.

(3) In other cases, the Government servant shall be given such proportion of such pay and allowances as such competent authority may prescribe; Provided that the payment of allowances under clause (2) or clause (3) shall be subject to all other conditions under which such allowances are admissible.'

Sub-rules (4) and (5) are not required for out purposes.

(7) It is at once apparent that no cause of action can be founded in the present case in Rule 152, because it does not create a right in the dismissed Government servant in the pay for the entire period during which he stood dismissed until the decree of Court. It only prescribes that the competent authority must consider the question as to what should be paid to him and whether or not for the whole or a part of the period, he should be trated as being on duty. By sub-rule (2), where a Government servant is fully exonerated or where in the case of suspension, it is held that suspension was wholly unjustified, it is provided that he would be entitled to full pay and allowances to which he would have been entitled had he not been dismissed or suspended, as the case may be. In such a case, it is possible to argue that though originally cause of action may have accrued every month when the salary became payable on the exoneration of the Govt. servant, a fresh cause of action accrued by reason of sub-rule (2). This question does not arise in the present case and we do not decide it. In the present case, the only argument of Mr. Lalit could be and has been that as Rule 150 provides that from the date of dismissal the pay and allowances of a dismissed Government servant shall cease until the dismissal was held to be invalid or inoperative, the plaintiff was not entitled to any part of the salary and, therefore, he could not file a suit in respect of the same. It is this contention that must now be examined.

(8) It is a fundamental rule of procedure that a party who comes to Court comes on allegations on which he is entitled to relief and on the basis of which he can claim relief. It need not be that his rights must be admitted or must have been decided to be true. It is on this footing that where it is alleged that a tenancy is terminated that the landlord files a suit for possession and mesne profits. It is again on this principle that where it is alleged that a defendant is a tress passer, he claims possession and mesne profits. Similarly, in the case of a contract where a breach is alleged by the defendant, the plaintiff asks for relief based on his allegation and so also in the case of a tort. In each case, the Court has to decide whether or not the allegation made by the plaintiff that the tenancy is terminated, that the defendant is a trespasser, that the contract is broken or that tort is committed, is true. If that issue is found in his favour then the plaintiff is entitled to relief, it is not necessary for the plaintiff that the defendant must accept or admit his rights to the relief and in the absence of such admission, there should first be a declaration by the Court that the right that is claimed exists.

(9) The question is whether in the suit that the plaintiff filed, could he claim arrears of salary? The relief of declaration is founded on the allegation that there was breach of provisions of Article 311 of the Constitution and further that he continued to be in service. Whether or not this allegation was true, he was bound to have asked for salary during the period between the dismissal and the filing of the suit since according to him he would be entitled to salary and it was wrongfully withheld. Order 2, Rule 2 of the Civil Procedure Code requires that every suit must include the whole of the claim to which the plaintiff is entitled in respect of his cause of action. The plaintiff is at liberty to relinquish a part of the claim to which the plaintiff is entitled in respect of his cause of action. The plaintiff is at liberty to relinquish a part of the claim in order to bring the suit within jurisdiction of the Court. Sub-rule (2) of R. 2 provides that if the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion of his claim so omitted or relinquished. Similarly, if a plaintiff is entitled to ask for more than one relief in respect of his cause of action, he must sue for all such relief. But if he omits to sue any relief to which he is entitled, except with the leave of the Court, he would not be entitled to sue for such relief.

(10) On the ground that his dismissal was invalid and he continued to be in service, he was entitled to the reliefs (1) a declaration that the order of dismissal should be held to be invalid and (2) that he should be paid arrears of his salary. In Province of Punjab v. Tara Chand, 49 Bom LR 697=AIR 1947 FC 23, the Federal Court was dealing with a case of dismissal alleged to be contrary to the provisions of Section 240(2) of the Government of India Act, 1935. The Federal Court held that in such a case, the plaintiff had a right to maintain a suit for declaration that the dismissal was void and also for relief by way of recovery to pay which have become due to him. The Federal Court pointed out that as the order was contrary to the provisions of Section 240(2) of the Government of India, Act, the order was utterly void and was in the eye of law more than a piece of waste paper and that he was entitled to draw his salary for the period of his service after March 19, 1938. This decision clearly illustrates that in a suit for declaration that the order of dismissal is void, the plaintiff is entitled to claim arrears of salary and if he is entitled to claim arrears of salary and if he entitled to so claim it but if he omits to sue for the same, Order 2, Rule 2 must apply. The decision in Madhav Laxman Vaikunthe v. State of Mysore, : [1962]1SCR886 , gives effect to the above principles in that case one M who held the substantive grade of First Grade Mamlatdar was officiating as District Deputy Collector. Subsequently, as a result of departmental inquiry for misconduct, he was reverted to his original rank as Mamlatdar. He filed a suit for a declaration that the order of reverter was void and also for arrears of salary. The order was made on August 11, 1948. He filed the suit against the State of Bombay on August 2, 1954 for a declaration that the order of 1948 was void and for recovery of Rs. 12, 866 and odd on account of arrears of salary and allowance etc. The Supreme Court following Tara Chand's case, 49 Bom LR 697: AIR 1947 FC 23 applied Article 102 of the Limitation Act and decreed salary only from June 2, 1951 which included also the notice period.

(11) Mr. Lalit relies on two decisions of the Madras High Court and one of the Orissa High Court, where it is said that a rule similar to Rule 150 of the Bombay Civil Services Rules would make a difference to the commencement of the date of the cause of action. The decisions are Union of India v. Akbar Sheriff, : (1961)ILLJ615Mad , State of Madras v. Anantharaman, : (1963)IILLJ584Mad and Dr. Janedra Nath Das v. State of Orissa, : (1965)ILLJ173Ori . In the first and the third cases, there is not much of reasoning and in view of what we have stated, we need not go into the facts of these cases. The decision in, : (1963)IILLJ584Mad has a bearing on the question in issue. Fundamental rule 52 as in force in Madras State is similar to Rule 150 of the Bombay Civil Services Rules. The Court recognised that normally the salary for every month, but observed that where a public servant had been dismissed or removed, his pay and allowance would cease from the date of such dismissal or removal. It is further observed that the terminus a quo for a suit under that provision is the accrual of the salary. By reason of Fundamental Rule 52 the right to salary ceases the moment an order for dismissal or ceases the moment an order for dismissal or removal is made, and it would not be open to the employee to recover the salary earned without having the order of dismissal set aside. It is not necessary to consider the arguments which were made by the Government pleader in that case as they do not commend to us. But they do not commend to us. But with great respect we feel that a rule like fundamental Rule 52 has nothing to do with the question at issue. It must always be remembered as we have stated at the beginning, that, the plaintiff who comes to the Court does not always come with his right accepted by the other side and asks relief merely on the basis of that accepted case. Once it is admitted that it is neither necessary that the facts or allegation of the plaintiff must be accepted by the other side or must be adjudicated upon by a Court with competent jurisdiction a right to relief arises it is evident a rule of the type has no bearing on the question. This rule provides for nothing extraordinary which is a deviation from the normal result in such cases. In every case when the tenancy is terminated no right exists as between the two contracting parties and large number of illustrations can be given in this respect. Rule 52 or any such rule provides only normal consequences of breaking off of relationship master and servant and nothing more. This assumption that termination of service is valid termination is implicit in this rule. It does not give a starting point of limitation. Having regard to these aspects of the matter it is not, with respect, necessary to go in the question of the effect of an order which is declared to be void by the court. The learned Judges distinguished the decision in Tara Chand's case, 49 Bom LR 697=AIR 1947 Fed Cou 23 by saying that applicability of fundamental Rule 52 prevented the accrual of salary. With respect of the judgment of the Federal Court and Supreme Court cannot be distinguished on this ground. As we have stated, fundamental Rule 52 does not lay down any new principles. The consequence must follow from the termination of the relationship whether not such a provision is made. Apart from this, the decision in the later case has not, in our view, been rightly distinguished. R. 24, of the Bombay Civil Services Rules clearly provides that a Government servant is entitled to such emoluments as are attached to his office. As soon as, therefore, there is an order of reverter, the Government servant would be entitled only to the salary attached to his reverted post, and not to the salary of his higher post. It could be had only if the order of reverter was declared void, which the Supreme Court did. If the contention that the cause of action is the date of declaration that the order was invalid were right since the plaintiff had asked for the payment of the arrears in that very suit, the claim could never have got barred by time because of Rule 24. We are, therefore, of the view that a declaration that the order is invalid or void does not give a fresh starting point unless when probably the case falls under Rule 152, which point we do not decide.

(12) As a last resort, Mr. Lalit relied upon the decision of the Supreme Court in Venkatesh Narhar v. Hajisaheb Khadrisahed Mulla, : [1966]2SCR215 . The question was one of construction of the Bombay Tenancy and Agricultural Lands Act, 1948, the question being when would the cause of action for an application under S. 29(2) of the Bombay Tenancy and Agricultural Lands Act. The landlord who had terminated would accrue to a landlord who had terminated the tenancy of the tenant on the ground of sub-letting. The question was whether the time would begin the run from the date of sub-letting or the date of termination of the tenancy. This is entirely a different question and has no bearing on the question of applicability of Article 102 of the Limitation Act. It was obvious that the right to apply under Section 29(2) could accrue if a notice terminating the tenancy was given to the tenant which was the condition precedent for the making of the application and the Supreme Court, therefore, held that it on the date on which the tenancy is terminated and gave the right to possession, and not before the sub-letting of the property.

(13) We, therefore, are of the view that the learned District Judge was right in holding that the plaintiff was not entitled to any relief except one granted by him. The appeal therefore, fails and is dismissed with costs.

(14) Appeal dismissed.


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