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Divisional Superintendent, Northern Railway and anr. Vs. R.B. Hanifi - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Judge
Reported in(1977)ILLJ309All
AppellantDivisional Superintendent, Northern Railway and anr.
RespondentR.B. Hanifi
Excerpt:
- - sanchalak panchayet raj, lucknow (1968)illj407all ,came to the conclusion that the petitioner was not guilty of any laches so as to disentitle him to the relief prayed for under article 226 of the constitution and that the consensus of judicial authority leans in favour of the view that the high court has power in appropriate cases to issue a direction for payment of money to safe-guard the rights of the petitioner in a petition under art 226 of the constitution. served in mohammad nooh's case (supra), if an inferior court or tribunal acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conduct the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior.....t.s. misra, j. (for himself and on behalf of k. b. asthana c.j.)1. the respondent who was an employee of the govern-ment in the railway department was placed under supension with effect from 29th october, 1959. his services were terminated by the general manager, northern railway by an order dated ' the december, 1960 in terms of rule 149(3) of the indian railway establishment code. volume 1, with effect from 13th december, i960. the supreme court on december 5, 1963 decided by majority in moti rum deka v. general manager, north east frontier railway : (1964)iillj467sc , that rules 148(3) and 149(3) of the indian railway establish-ment code were invalid on 20th july. 1965 the petitioner submitted a representation to the general manager, northern railway seeking a review of the order dated.....
Judgment:

T.S. Misra, J. (for himself and on behalf of K. B. Asthana C.J.)

1. The respondent who was an employee of the Govern-ment in the Railway Department was placed under supension with effect from 29th October, 1959. His services were terminated by the General Manager, Northern Railway by an order dated ' the December, 1960 in terms of Rule 149(3) of the Indian Railway Establishment Code. Volume 1, with effect from 13th December, I960. The Supreme Court on December 5, 1963 decided by majority in Moti Rum Deka v. General Manager, North East Frontier Railway : (1964)IILLJ467SC , that Rules 148(3) and 149(3) of the Indian Railway Establish-ment Code were invalid On 20th July. 1965 the petitioner submitted a representation to the General Manager, Northern Railway seeking a review of the order dated 6th December, I960 by which his services had been terminated. Ultimately by an order dated 23rd September, 1966 the petitioner's ' representation ' was accepted and he was reinstated in service, vide Annexure 2 to the writ petition. Subsequently, by another order contained in Annexure 3 to the writ petition dated 23rd January, 1967 the earlier office note contained in Annexure 2 was superseded and the petitioner was on reinstatement posted in C.R. Section. Thereafter by Annexure 4 it was stated tat the petitioner's suspension period from 20-10-1959 to 22-1-1967 had been treated as on duty. It was. however, also stated that the petitioner would be entitled for payment of three years' salary only prior to the date of reinstatement under the law of limitation.

Further. it was mentioned therein that the petitioner had been ' reinstated in service from 23rd January, 1967 as per notice No. 817 E/1/1-A, dated 23-1-1967.' The petitioner was accordingly paid arrears of his salary for three years only on 6th November, 19b7 for the period 23-1-1964 to 22-1-1967. He was thus denied payment of arrears of salary for the period 20 10-1959 to 22-1-1964. The petitioner then filed the writ petition, which has given rise to this appeal, on 29th January, 1963, i.e., after a lapse of about 2 months of the order contained in Annexure 4 for a writ of certiorari to quash the order Annexure 4 along with a list by opposite party filed as paper No. 4 along with a list by opposite party on 15th May, 1971 in so far as they deprived the petitioner of his arrears of salary for the said period 20th October, 1959 to 22nd January, 1964 and for a writ in the nature of mand mus directing the opposite parties to pay him his salary and allowance for the said period together with such increments as he would have normally drawn had he not been removed from service,

2. The Union of India contested the writ petition principally on the ground that no mandamus can issue directing them to pay salary and allowances to the petitioner which on the date of his reinstatement had become barred by time and that the petition being highly belated was not maintainable.

3. The learned single Judge, having relied on Hart Raj Singh v. Sanchalak Panchayet Raj, Lucknow : (1968)ILLJ407All , came to the conclusion that the petitioner was not guilty of any laches so as to disentitle him to the relief prayed for under Article 226 of the Constitution and that the consensus of judicial authority leans in favour of the view that the High Court has power in appropriate cases to issue a direction for payment of money to safe-guard the rights of the petitioner in a petition under Art 226 of the Constitution. He, therefore, allowed the petition and quashed the impugned order contained in Annexure 4 as also the supplementary advice filed as paper No. 4 in so far as they deprived the petitioner of his arrears of salary from 20-10-1959 to 22-l-1964 as also the statement therein that the petitioner was entitled to three years' salary and issued a direction to the opposite p-arty to pay the petitioner his salary and allowances for the said period together with such increments as he would have normally drawn had he not been removed from ser. vice. Aggrieved by that decision the Divisional Superintendent and the Divisional Accounts Officer, Lucknow Division have preferred this special appeal.

4. This appeal first came up for hearing before a Division Bench. Being of the view that the High Court ought not ordinarily in exercise of its jurisdiction under Article 126 of the Constitution lend its aid, 10 a party by extraordinary remedy of mandamus or certiorari when the relief asked for relates to a claim which is otherwise barred by limitation, the Division Bench found itself unable to agree with the view taken in Hari Raj Singh's case (supra), as also in Special Appeal No. 643 of 1967 and referred this case to a large Bench. That is how this appeal has come up before this Full Bench.

5. The appellant's contention is under Article 7 of the Indian Limitation Act, 1963 which corresponds to Article 102 of the old Limitation Act, the limitation for filing a suit for recovery of salary is three years. Hence the respondent was paid salary for a period of three years prior to the date of his reinstatement and his claim for arrears of salary for the rest of the period was barred by time. This appeal thus requires serious exegesis of the rule of limitation contained in Article 7 of the Indian Limitation Act

6. It appears that accepting the contention of the respondent that the order dated 6th December, l960 terminating his services under Rule 142 of the said Code was a nullity in view of the decision of the Supreme Court in A/or/' Ram Deka V. General Manager North East Frontier Railway (supra) the said order was recalled. The respondent was reinstated in service by order dated 23rd January, 1967 Annexure 3 and his suspension period from 20-10-1659 to22-1-1967 was 'treated as duty' vide Annexure 4. It is, however to be noticed that the order contained in Annexure4 did not completely undo the mischief of the said order dated 6th December. I960 inas-much as the respondent was not allowed salary for the entire period commencing from 20-H'. 1959 to 22-I-19o4 on the plea of limitation.

7. It is now unquestionable that a Government servant dismissed illegally from service has a right to institute a suit for recovery of arrears of salary (See State of Bihar V. Abdul Majid : (1954)IILLJ678SC . and Om Prakash Gupta v. State of U.P.. : (1956)ILLJ1SC . The normal remedy for recovery of salary from the State is by a suit which may be filed within three years from the date of the accruel of the cause of action as provided in Article 7 of the Indian Limitation Act, 1963, which reads as under:

Description Period of Time from which of Suit. limitation, period begins to run.For wages in the Three Where the wages case of any other years, accrue due. person.

8. In Sitaram Gael v. Municipal Board, Kanpur A.I.R. 1955 S.C. 1036, it was observed that against an order of dismissal an employee may choose to exercise the right of appeal to the departmental authority if 'there is any provision to that effect' or without adopting that procedure he may straightway challenge the validity of the order on any of the grounds available to him under law. There is nothing in the statutory rule to prevent him from doing so and if without exercising the right of departmental appeal which is given to him by the rules straightway he tiles a suit in the civil Court to establish the ultra vires or illegal character of the order, it cannot be urged that such a suit was premature, he not having exhausted the remedies given to him under the statute. The principle that superior Courts may not in their discretion Issue the prerogative writs unless the applicant has exhausted all his remedies under the special Act does not apply to a suit. But if there is a provision in the Act which expressly bars it the position could be different and in that event he must first file a departmental appeal. However, the mere filing of the departmental appeal will not have the effect of holding the order in abeyance or postponing the effect thereof until the decision of the appeal.

The cause of action accrues to the employee on the date of the communication of the order and the period of limitation commences to run from that date. Sitaram Goels case (supra) while affirming the view taken in State of UP. v. Mohammad Nooh A.I.K.. 1958 S C. 86, held that departmental enquiries even though they culminated in decisions on appeals or revision, could not be equated with proceedings before regular Court of law. Hence, the limitation for suit would start running from the date of the original order of dismissal. If he chooses to wait till the decision of the appeal or revision by the departmental authority and thus oversteps tin limitation of time he would do so to his detriment. This would be the position when the order is affirmed in appeal or revision.

9. The above is the position if the employee chooses to seek relief by filing a civil suit. But Article 226 of the Constitution also provides a concurrent remedy and as ob. served in Mohammad Nooh's case (supra), if an inferior Court or Tribunal acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conduct the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior Court's sense of fair-play, the superior Court may quite properly exercise its power to issue prerogative writ of certiorari to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or Tribunal was available and recourse was not had to it or if recourse was bad to it is confirmed what ex facie was a nullity.

10. Existence of other adequate remedies is not per se a bar 10 the issue of certiorari It can be issued in proper cases even if the petitioner has allowed the time to appeal (before departmental authorities) to expire if the authority concerned has acted beyond jurisdiction or in excess of jurisdiction or discarded all principles of natural justice, fair-play and all accepted rules of procedure which shake the sense of justice. M nd mus a high prerogative writ invented for the purpose of supplying defects of justice. When a public authority or official is under an absolute (not discretionary) duty to perform a certain function and on demand duly mad refuses to perform it, any person who has a legitimate and sufficient interest in the performance of it may, provided that there is no other remedy equally convenient; beneficial and effective open to him apply to the High Court for a mandamus to compel the performance of the duty. To be enforceable by a mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient to have been imposed by common law and custom.

11. The order of dismissal can, therefore, be challenged by filing a suit or a writ petition without filing a representation or appeal before the departmental authority. The order of termination of service so long as it is not set aside remains effective and operative. It may be set aside by the Court if an action is commenced against it in Court. It may also be set aside by the departmental appellate authority if an appeal is preferred. Again, it may also be set aside or superseded by the authority who had passed it, treating the entire period as duty period. In either event the effect of setting it aside is as if it never existed and the employee becomes entitled to be reimbursed of all the benefits which he was deprived of because of the illegal order. If these benefits are not paid to him he may file a suit in civil Court for the recovery thereof. In that eve t the provisions of Indian Limitation Act would be attracted and the civil suit must be filed within the period prescribed by it. In a proper case he may file a with petition under Article 226 of the Constitution within a reasonable period.

The expensive and extraordinary power of the High Court under Article 226 of the Constitution is as wide as the amplitude of the language used is and can effect any person and be available for any other purpose, even one for which another remedy may exist. (See Rohtas Industries Ltd. v. Rohtas Industries Staff Union : (1976)ILLJ274SC . There are, however, some clear restraints on the use of this extraordinary remedy and the High Court will not go beyond those wholesome inhibitions except where the exceptional circumstances of a case demand timely judicial interdict or mandate. One of the restraints on the use of this extraordinary remedy is that normally persons who are aggrieved by the order of Government should approach the High Court with utmost expedition. The Supreme Court in Narayani Devi Khaitan v. State of Bihar (Civil Appeal No. 140 of 1964 decided on 22-9-1964) pointed out that 'there can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in the writ jurisdiction.

No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too 'discretion must be exercised judiciously and reasonably'. This view was affirmed in Durga Prasad v. The Chef Controller of Imports and Exports : [1969]2SCR861 and the same was the majority view is Trilok Ghana Motl Chand V.H. B, Munshi : [1969]2SCR824 , where it was held that the remedy in a writ application under Article 226 corresponds to a remedy in an ordinary suit and the latter is subject to the bar of a statute of limitation the Court imposes on analogy the same limitation on the summary remedy in the writ jurisdiction even though there is no express statutory bar of limitation. Referring to State of Madhya Pradesh v. Bhailal Bhut : [1964]6SCR261 , it was held in Trilok Chand's case (supra) that the High Court will always refuse to give relief under Article 226 if the delay is more than the statutory period of limitation.

12. The normal rule, therefore, is that the High Court will refuse to entertain stale claims under Article 226 of the Constitution. The provisions of the Limitation Act are founded on sound principles of public policy. As observed in Whitely Stokes Anglo Indian Courts. (Volume II page 940) the law is founded on public policy, its aim being to secure the quiet of the community, o sup. press fraud and perjury ; to clean policies and to prevent oppression. Similarly in (1851-52) 5 Moo Ind App. 234 (PC) Ruckamboye v. Lallubhoy Motl Chand, the Privy Council observed that the object of the statute of limitation was to give effect to the maxim 'interest reipublicae at sit finis litium', i.e., the interest of the State requires that there should be a limit to litigation. The other ground of public policy is that the law aids the vigilant and not those who slumber. A statute of limitation does not, however, bar the right but merely bars the remedy (Bombay Dyeing and Manufacturing Co, Lid. v. State of Bombay : (1958)ILLJ778SC . It regulates the time within which the powers of the Court are to be invoked. Further equitable considerations have no place in interpreting the provisions of limitation.

Thus although the Indian Limitation Act does not apply to a writ petition under Article 226, the Courts have a discretion and have refused to give relief in cases of long and unreasonable delay. No relief can be given to a petitioner who without any reasonable explanation approaches the High Court under Article 26 or Article 227 of the Constitution after inordinate delay. (See Ravindra Nath v. Union of Ind : [1970]2SCR697 . In each case the preliminary question is whether the applicant has been quality of laches or undue delay. A rule of practice cannot prescribe a binding rule of limitation. H may only indicate how discretion will be exercised by the Courts in determining whether having regard to the circumstances of the case the applicant has been quality of laches or undue delay (See Chandra bhushan v. Dy. Director of Consol idation, : [1967]2SCR286 . A suit for recovery of arrears of salary is governed by Article 7 of the Indian Limitation Act. (963, corresponding to Article 102 of the Indian Limitation Act, 1908, which prescribes a limitation of three years from the date when the salary accrues due. (See State of Bihar v. Abdul Mojid : (1954)IILLJ678SC ; Madhay Laxman Vaikuntha v. State of Mysore : [1962]1SCR886 ; The Punjab Province v. Tara Chand A.I.R. 1947 F.C. 23 ; Jaichand Sawhney v. Union of India.. : [1970]3SCR222 and S D. Sahai v. Union of India. : (1974)ILLJ270SC .

13. To sum up, the salary becomes duo to an employee at the end of each month for the services rendered by him in the month. The salary will also become due to him at the end of the month even if he is unlawfully prevented from attending to his public duty. If he is placed under suspension he would be paid salary in accordance with the rules during the suspension period but in the absence of any rules in that respect he would be entitled to full pay during the suspension period. Similarly, if the suspension order is found to be invalid by the Court, he would be entitled to full f alary for the suspension period, but if the suspension order is set aside by the departmental appellate or revisional authority, the salary for the suspension period would be fixed and paid in accordance with the Rules, if there be any. So also in the case of termination of service the employee ceases to be entitled to any salary with effect from the order of termination of service. If the order is set aside on appeal or revision by the departmental appellate or revisional authority the salary for the period from the date of the order of termination to the date of the order of reinstatement would be fix'-'d and paid in accordance with the relevant rule.

In the event the order of termination of service is recalled or cancelled by the authority who had passed it either on the representation of the employee or suom otu the salary for the entire period and not for three years only is liable to be paid However, if the employee files a suit in a civil Court for the recovery of his arrears of salary the pro-visions of Art. 'I of the Indian Limitation Act, 1963 would be attracted and the suit must be filed within three years from the date the salary accrues due. And the salary accrues due on the expiry of each month if the salary is payable on monthly basis. He may if facts and circumstances so warrant, tile a petition under Article 226 of the Constitution for redress within a reasonable time Whether or not a writ petition has been filed within the reasonable time will depend in each case on its own facts and circumstances and no hard and fast rule can be laid down. The provisions of Indian Limitation Act do not apply to a writ petition Normally a period of ninety days from the; date of the impugned orderlies considered by this Court to be the reasonable period within which a writ petition may be filed. Normally the High Court will decline to give relief to a petitioner who comes to Court after the expiry of the period prescribed for filing a suit.

14. Has the petitioner in the instant case come to this Court after the lapse of reasonable time? In this connection two facts ere pertinent to be noticed, namely, (i) the Rule 149(3) of Railway Establishment Code was declared ultra virus by the Supreme Court in its decision dated 5-12-1963 in Moti Ram Deka v. General Manager, (supra) and (ii) the order of termination of the petitioner's service made under the said Rule 1-39 on 6-12-1960 was not declared null and void by any order of the Court, but was recalled by the authority who had passed that order and the petitioner was reinstated in service by the said authority vide order dated 23rd September, 1966 treating the entire period from the date of suspension to 22nd January, 1967 as duty period. It is not the case that the order of dismissal was invalid for being not in conformity with Rule 149. The fact is that though the order was in consonance with that Rule, it was invalid inasmuch as the said rule had been subsequently declared ultra vim by the Supreme Court in Moti Ram Deka's case, (supra).

15. A statute or any provision thereof is effectual so long us it is not repealed, A temporary statute remains operative until it has expired. It is within the domain of the Legislature to repeal a statute ; the Courts do not have that power. The Courts strike down or adjudge void or unconstitutional 'a statute or a provision thereof if it is inconsistent with the Constitution, or it contravenes a provision of part III of the Constitution or is beyond the legislative competence. A statute declared ultra vires is devoid of any legal force or binding effect. Cooley on Constitutional Limitation says:

When statue has been adjudged to be unconstitutional, it is as if it has never been.....and which, consequently is to be regarded as having never, at any time been possessed of any legal force.

Rottschalfer in his treatise on Constitutional Law states :

The Courts ignore it as Jaw m the decision of cases in which us application produce unconstitutional results. That theory implies that the legislative provision never had legal foroe as applied to cases.

Wills while dealing with this matter says:

The unconstitutionally of a statute neither annuls nor repeals the statute but has the effect of ignoring or disregarding it so far as the determination of the rights of private parties is concerned. The Courts generally say that the effect of an unconstitutional statute is nothing. It is as though it has never been passed.

The Supreme Court said in Deep Chand v. State of U.P. : AIR1959SC648 .

(i) Whether (he Constitution affirmatively confers power on the Legislature to make laws subject wise or negatively prohibits it from infringing any fundamental right they represent only two aspects of want of legislative power ; (ii) the Constitution in express terms makes the power of Legislature to make laws in regard to the entries in the lists of the seventh schedule subject to the other provisions of the Constitution and thereby circumscribes or reduces the said power by the limitations laid down in Part III of the Constitution ; (iii) it follows from the previous that a law made in derogation or in excess of that power would be ab initio void wholly or to the extent of the contravention as the case may be.

16. Again in B. Shama Rao v. The Union Tgrritory of Pondicherry : [1967]2SCR650 , it was stated that a law which has become totally void is non-existent and non-established. In similar strain was it observed in Mahendra Lal Jaint v. State of U.P : AIR1963SC1019 that the Jaws which were void were ineffectual and nugatory and devoid of any legal or binding effect.

17. The effect of voidness of law was considered by the Supreme Court in a number of cases; Keshavan Madhoya Menon v. State of Bombay : 1951CriLJ680 , Behram Khurshid Pesikaka v. State of Bombay 0065/1954 : 1955CriLJ215 Bhikaji Narain Dhakras v. State of M.P. : [1955]2SCR589 ; M.P.V. Sunderaremier v. State of A.P. : [1958]1SCR1422 ; Deep Chand v. State of U.P. AI.R. 1959 S.C. 468 ; Mohendra Jain v. State of U.P. : AIR1963SC1019 and Jagannath v. Authorised Officer Land Reforms : [1972]1SCR1055 . Referring to all these decisions the Supreme Court in State of Gujarat v. Shri Ambika Mills. : [1974]3SCR760 , held:

In Jagannath v. Authorised Officer, Land Reforms, : [1972]1SCR1055 , this Court said that a Post-Constitution Act which has been struck down for violating the fundamental rights conferred under Part III and was. therefore, stillborn, has still an existence without re-enactment, for being put in the Ninth Schedule. That only illustrates that any statement that a law which takes away or abridges fundamental rights conferred under Part III is still-born or null and void requires qualifications in certain situations. Although the general rule is that a statute declared unconstitutional is void at all times and that its invalidly must be recognised and acknowledged for all purposes and is no law and a nullity, this is neither universally nor absolutely true, and there are many exceptions to it. A realistic approach has been eroding the doctrine of absolute nullty in all oases and for all purposes. (See Warring v. Colpoys, 111 F. 2d 642) and it has been held that such broad statements must be taken with some qualifications (See Chicot County Dlainge District v. Banter State Bank, Ark, (1939) 308 US. 371). That even an unconstitutional statute is an operative fact. (See Warring v. Colpoys, 122 F. 2d 642) at least prior to a determination of constitutionality. See (1939) 308 US 371, and may have consequences which cannot be ignored. See (1939) 308 US 371 See Corpus Juris Secundum, Vol. 16, p. 489.

To illustrate the point the Supreme Court quoted the following passage from Kalsen's 'Central Theory of Law and State'.

'The decision made by the competent authority that something that presents itself as a norm is null ab initio because it fulfils the conditions of nullity determined by the legal order is a constitutive act; it has a definite legal effect; without and prior to this act the phenomenon in question cannot be considered as null. Hence the decision is not 'declaratory' that is to say it is not, as it presents itself a declaration of nullity; it is a true annulment, an annulment with retroactive force. There must be something legally existing to which this decision refers. Hence, the phenomenon in question cannot be something null ab initio, that is to say, legally nothing. It has to be considered as a norm annulled with retroactive force by the decision declaring it null ab initio, just as everything King Midas touched turned into gold, everything to which the law refers becomes law, i.e., something legally existing.

Applying these principles, the effect of the decision of the Supreme Court in Moti Ram Deka's case (supra) holding the said Rule 143(3) invalid and ultra vires dates back to the moment of the enactment of that rule. Being violative of Article 311(2) and Article 14 of the Constitution it was unenforceable. Hence, any action taken thereunder became void and illegal at the very time when the action was taken.

18. It is a salutary principle that when a citizen aggrieved by the action of a Government department has approached the Court and obtained a declaration of law in his favour, others in like circumstances should be able to rely on the sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to Court. The respondent relying on this sense of responsibility of the Government approached it for the cancellation of the order of termination of service and for reinstatement. The Government accordingly recalled that order and reinstated the respondent in service with effect from 23rd January, 1967 treating the period from 20th October, 1959 to 22nd January, 1967 as duty period. But it was considered that the respondent would be paid salary only for period of three years prior to the date of the order of reistatement because according to the Government the arrears of salary for the rest of the period were barred by time.

19. It was submitted on behalf of the Union of India that the direction with regard to payment of salary was covered by Rule 2044. In our view this contention is untenable. Rule 2044 reads:

2044 (F.R. 54) Pay after reinstatement-(1) When Railway servant who has been dismissed, removed, compulsorily retired or suspended is reinstated, or would have been reinstated but for his retirement OB superannuation while under suspension, the authority, competent to order the reinstatement shall consider and make specific order-

(a) regarding the pay and allowances to be paid the Railway servant for the period of his absence from duty or for the period of suspension ending with the date of his retire, ment on superannuation as the case may be; and

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

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

(3) In other cases, the railway servant shall be given such proportion of such pay and allowances as such competent authority may prescribe:

Provided that payment of allowances under Clause (2) or Clause (3) shall be subject to all other conditions under which such allowances are admissible;

Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 2043 (F.R. 53).

(4) In a case failing under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under Clause (3) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose.Provided that if the Railway servant so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Railway servant.

This rule applies to cases where the dismissal is set aside in a departmental appeal. It has no application to cases where the dismissal is set aside by the authority who had passed the order of termination, either on the representation of the employee for review or suo motu. Examining Rule 54 of Fundamental Rules which is in part not en a with the aforesaid Rule it was held by the Supreme Court in Devendra Pratap Narain Sharma v. State of U.P. : (1962)ILLJ266SC , that Rule 54 of Fundamental Rule framed by the State under Art 309 undoubtedly enables the State Government to fix the pay of a public (servant where dismissal is set aside in a departmental appeal. But the Rule 54 has no application to oases in which the dismissal of a public servant is declared invalid by a civil Court and he is reinstated. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work. In that case the High Court had held that fixation of Re. 1 as taken salary amounted so punishment which could not be imposed wit hour following the procedure lad down by Article 311. In the view of High Court the employee having been reinstated there was no justification for not granting him Ml salary. Affirming this view the Supreme Court observed that UK effect of the adjudication of the Civil Court is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work The same view was reiterated by the Supreme Court m (i972) 2 Sup. Court Law Reporter 833, and in Gopi Nath v. D visional Superintendent, (1974) Lab. I.C. 1078 (Mad).

20. Obviously the order refusing to pay the respondent his salary for any period beyond three years was not covered by Rule 2044. the learned Counsel for the appellant, however, referred us to a circular letter issued by the Railway Board which reads as under :

Subject : Admissibility of pay and allowances to Railway servants on reinstatement as a result of Court decrees, etc.

Reference Board letter No. E (D and A) 56 R. G-6-12 dated 22-9-1961 on the above subject The existing 'Explanation' under item (ii)(a) of para 3 thereof may be substituted by the following:Explanation' Arrears to be paid under the law of limitation will be for a period of 3 years immediately preceding the date of the judgment of the Court of law quashing the dismissal, removal, etc., order the date on which the appellate reviewing authority, orders of reinstatement on the ground that the procedure required under Article 311 of the Constitution has not been followed where there is more than one judgment the relevant date will be the date of final judgment by which the order of dismissal, removal, etc., was quashed.

It was urged that in view of this circular letter the respondent was not entitled to any salary beyond the period of three years. In our view, this circular latter of the Board has no relevance to the facts of this case. It says that the arrears to be paid under the law of limitation will be for a period of three years immediately preceding the date of judgment of the Court of law quashing the dismissal, removal, etc., orders/the date on which the appellate reviewing authority, orders of reinstatement on the ground that procedure required under Article 311 of the Constitution had not been followed. The directions in this circular letter were thus confined to govern cases in which the dismissal or removal order was quashed by the judgment of a Court of law on the ground that the procedure required under Art, 311 of the Constitution had not been followed. Obviously, therefore, the circular letter had no bearing to the facts of this case inasmuch as the order of dismissal of the respondent was not qua-bed by a judgment of Court of law but was recalled and cancelled by that very authority which had passed it. No other Rule was cited by the learned Counsel for the Union of India. The order of termination of service having been recalled by the authority concerned and the respondent having been reinstated to his service it was not open to the authority to deprive the respondent of the remuneration which he would have earned had he been permitted to work.

21. The learned Counsel for the Union of India then urged that as under general law of limitation a suit for recovery of arrears of salary by a Government servant should be filed within three years of the dale of the accrual of cause of action under Article 7 of the new Limitation Act, 1963. the Government was justified declining to pay the salary for any period beyond three years prior to the date of the order of reinstatement. This contention in our view, is not unable.

22. The reinstatement to serve and the payment of salary for the back period could only have been ordered on the footing that the order of termination from service dated 6th December, 1996 was passed without the authority of law and, therefore, without jurisdiction. Rule 2044, as already discussed, on which the learned Counsel for the Union of India relied, did not apply for refusing to pay the salary for the entire period in question, from the fact that the Railway Board had directed for reinstatement of all those employees whose services had been terminated under Rule 149(3) it follows that they had fully realised that the order of termination of service was without the authority of Jaw. The Government could not, therefore, lawfully withhold the salary which the respondent would have earned had he not been unlawfully debarred from attending to his duties. They were, therefore bound to pay the salary for the back period. Significantly the Government ordered for the payment of salary for the past three years only and in, fact paid the same as well. In our view the Government was bound to pay the salary for the remaining period as well unless there is any provision of law which debars the respondent from recovering it.

23. The only provision relied upon is Article 7 of the Indian Limitation Act. The Government of India also relied upon the ground of laches. It was not their case that the order of termination of service was lawfully passed Their case is that the respondent had omitted to apply for the payment of salary within time prescribed by Article 7 of the Indian Limitation Act and has failed to move this Court under A t. 226 of the Constitution within reasonable time. The provisions of Article 7 prescribe the period of limitation within which a Government employee should institute a suit in a civil Court for recovery of arrears of salary. It does not fix a period within which he should approach the Government for refund of his salary amount nor does it prescribe the period within which toe should tile a petition under Article 226 of the Constitution. That being so, the Railway authorities not being entitled to withhold the amount a salary for (he period in question, were under a legal obligation to pay the same. There is no provision, in fact none was brought to our notice which lays down any limitation with-in which a Government employee has to apply to the Government (and not to the Court; for refund of his salary.

The refusal to pay the salary for any period beyond the period of three years prior to the date of order of reinstatement was, therefore, clearly unsustainable inasmuch as the Government cannot lawfully withhold the salary for the said period It was also without jurisdiction us there is no rule to support it as was held m Devendra Pratap Narain Sharma V. State of U.P. : (1962)ILLJ266SC The right of a Government employee to salary is a statutory right vide Rule 2013 of the Railway Establishment Code. The right to draw the pay is more than a contractual right there being fundamental rules governing sanction and payment of salary vide Rules 2013 to 2044 of the said Code. Salary is drawn and paid to a Government servant in accordance with the rules relating thereto. These rules have the force of law. Deductions from, salary or withholding pay men i of salary can be made only in accordance with same rule or statutory provision if 11;ere is 01 e, but no authority can order deduction from salary, nor can it withhold payment of salary or decline to pay salary in the absence of any specific rule to that effect. The right to receives salary flows from the right to serve on a post. If a Government employee is unlawfully prevented from attending to his duties as a public servant he would be, in our view, entitled to full salary which he would have earned had be been permitted to work.

24. The effect of the decision in Mott Ram Deka s case (supra) came to be examined by the Supreme Court in General Manager, North East Frontier Railway v. Sachindra Nath Sen : (1969)IILLJ708SC . In that case Sachindra Nath Sen was serving the Railways as an Asstt, Traffic Superintendent prior to 2nd December, 1957. His services were terminated by serving on him one month's notice under Rule 18 contained in Indian Railway Establishment Code. He filed an appeal to the General Manager but he was informed that his appeal was incompetent. In June, 1959 he was offered re-employment as Statistical Inspector which he accepted and was employed to the post. He was finally informed by a letter dated 31st December, 1959 that his representation had been considered by the Railway Board relating to the termination of his services as Asst. Traffic Superintendent but the same had been rejected. On 5th December, 1963 the Supreme Court decided by majority that Rule 148(3) and Rule 149(3) of the Indian Railway Establishment Code were invalid.

Sachindra Nath Sen then made a representation in 1964 to the General Manager to consider he case of the termination of his services in the light of the law declared by the Supreme Court, The General Manager sent a reply dated 3rd June, 1964 that the question of respondent's reinstatement could not be considered as it was not covered by the limits of law, i.e., it doss not fall with in a period of six years from the date of your termination of service. Thu respondent was in similar terms informed by another letter dated 7th December, 1966 to the effect that as his services were terminated on 2nd December, 1957 which was more than six years counting backwards from 5th December. 1963 his request for reinstatement could not be acceded to Sachindra Nath Sen then filed a petition under Article 226 of the Constitution in the High Court which was allowed. The General Manager then preferred an appeal before the Supreme Court which was dismissed. The Supreme Court held:

In view of the law laid down by this Court the termination of the services of the respondent in December, 1957, was wholly void and illegal. The railway authorities recognised, as indeed they were bound to do, the implications and effect of the judgment of this Court but created a wholly illegal and artificial distinction by saying that only those employees whose services were terminated in terms of Rule 148 within a period of six years prior to December 8, 1963 and whose representations were pending were to be considered for reinstatement, whereas the employees like the respondent whose services had been terminated on a date which was more than six years counting backward from December 5, 1963 would not be reinstated The fixing of the period of sir. years was on the face of it arbitrary and no valid or reasonable explanation has beep given as to why this limit was fixed. If the termination of service of an employee in terms of Rule 148 was wholly illegal and void and was violative of Article 311(2) of the Constitution, his reinstatement should have followed as a matter of course.

The submission of the learned Counsel for the appellant that the railway author ties would have found lot of difficulty and inconvenience in reinstating employees without taking into consideration the period which had elapsed is devoid of any merit and cannot be accepted.

It is to be noticed that the limitation prescribed under the Indian Limitation Act, 1908, for filing a suit for declaration was six years. The new Limitation Act of 1963 prescribes this period as three years. The services of Sachindra Nath Sen were terminated on 2nd December, 1957. In 1964 he claimed his reinstatement on the basis of the decision of the Supreme Court in Moti Ram Deka's case (supra), i.e., after the expiry of more than six years. It he had filed a civil suit in a civil Court in 1964 for a declaration that the order of termination of service dated 2nd December, 1957 was illegal, null and void the suit would Save been barred by limitation. He, nowever filed a petition under Article 226 of the Constitution after 7th December, 1964, i e., after the expiry of seven years, for quashing the said order dated 2nd December, 1917. The petition was allowed and the older was quashed by the High Court. The appeal preferred by the Union of India was dismissed by the Supreme Court holdup that the fixing of the period of six years Was on the face of it arbitrary and there was no valid or reasonable explanation an to why this limit was fixed by the railway authorities.

If the termination of service of an employee in terms of Rule 148 was wholly illegal and void because of violation of Article 311(2) of the Constitution, his reinstate. meat should have fallowed as a matter of course. The contention of the railway authorities that they would find lot of difficulty and inconvenience in reinstating employees was not accented. From this it follows that in certain circumstances a writ petition may be maintained even when the period for filing a civil suit had expired. Had it not been the case, the order of termination of service dated 2nd December, 1957 past-ed against Sachindra Nath Sen could not have been quashed by the High, Court under Article 226 of the Constitution ;and the order of the High Court would not, have b en affirmed by the Supreme Court as the petition was filed after the expiry of seven years from the date of the order,

25. In the instant case, the railway authorities having recognised the implication and effect of the judgment of the Supreme Court in Mod Ham Delta's case (supra), reinstated the respondent to service and treated the entire period from the date of his suspension to the date of reinstatement as on duty but declined to pay his salary for any period beyond three years from the date of the order on the grout d that it was barred by time. This latter part ; of the order refusing to pay salary for the period in question was, in our view, wholly illegal. It was not open to the Railway authority concerned to invoke the provisions of Indian Limitation Act, The provisions of that Act apply to a court. The Railway authority concerned who passed the order declining to pay salary for the period in question was not a court. The order declining to pay celery for the period in question was, therefore, without jurisdiction.

The respondent was reinstated to service not because the order of terminal ion of his services was declared null and void by a court or was set a ids by en order of a departmental appellate or revisions authority but by the authority who had passed it on review realising that Rule 149(3) was declared invalid. On such reinstatement the payment of salary for the entire period when the respondent was prevented from attending to his duties should have followed as a matter of course. It was a statutory right of the respondent to get the arrears of salary on such reinstatement, and it was the statutory obligation on the part on the Railway authority to pay the same to the respondent. The performance of that obligation, on refusal, may be enforced by a writ of mandamus and the order providing for payment of salary for three years only and not for the entire period in question was liable to be quashed by a writ of certiorari.

26. For all these reasons, the view taken in Hart Raj Singh v. Sanchalak Panchayat Raj. UP. : (1968)ILLJ407All , seems to us to be correct in the background of its peculiar facts and circumstances.

27-28. We find no merits in the appeal. It is accordingly dismissed with costs.

D.N. Jha, J.

28. I have read the judgment prepared by brother T.S. Misra, J. and concurred in by my Lord the Chief Justice but, I respectfully regret, I cannot subscribe to the reasoning and the conclusion reached.

29. The full narration of facts is already contained in the judgment of brother Misra, J. However, facts essential for my reasoning are being set out in this judgment, Petitioner R.B. Hanifi was appointed as a clerk in the office of the Division d Superin tendent, Northern Railway on 1-10-1939 and he was confirmed on 13-10-1942. A show cause notice dated 19.10.1959 in terms of Rule 3 of the Railway Service (Safeguarding of National Security) Rules, 1954 was issued against the petitioner who was placed under suspension with effect from 10-10-1959. Ho replied to the show cause notice but the same was rejected and the General Manager. Northern Railway, by his order dated 7-12-1960 terminated the services of the petitioner in exercise of powers under Rule '149 of the Railway Establishment Code Vol. 1. This Rule 149 and Rule 148 ware struck down by Hon. Supreme Court in case, Moti Ram Deka v. General Manager, N.E. Railway supra). On 20-7-1965 a representation was submitted by Hanifi for review of order of termination of his service dated 6-12-1960. The representation was accepted and he was ordered to be reinstated in service and he took over on 23-1-1967 and was posted as a clerk at Moghalsarai The petitioner was treated as on duty froin20-10-1959 to 22-1-1967, but in the bill prepared for payment of arrears of salary it was mention. ed that petitioner was entitled to payment of arrears of salary for three years only prior to the date of reinstatement. This is Annexure 4. The petitioner filed the present writ petition in this Court feeling aggrieved by the non-payment of his salary for the period 20-10-1959 to 22-1-1964 inter alia on the ground that the reason contained in the impugned order for withholding his salary for the said period on the plea of its being barred by the law of limitation is not a valid reason in law. He prayed for issue of certiorari for quashing the order contain. ed in Annexure 4 and also for a writ or direction in the nature of mandamus commanding the opposite parties to pay his salary and allowances for the period 20-10-1959 to 22-1-64.

30. The learned single Judge accepted the plea of the petitioner relying on a decision of this Court, in Hart Raj Singh v. Sanchalak Panchayat Raj (supra). The two other cases from which support was taken are Shyam Sunder Derey v. Union of India : (1965)IILLJ321Cal and Sudhir Kumar Das v. General Manager North Frontier Railway A.J.R. 1968 Assam and Naga 8, (1968) Lab. I.e. 913. The writ petition was allowed and a mandamus was issued directing the appellant to pay to the petitioner salary and allowances for the period from 20-10-1959 to 22-1-1964 with such increments as would have normally been drawn had he not been removed from service.

31. The appellant feeling aggrieved preferred a special appeal which came up for hearing before a Division Bench consisting of Prem Prakash and S K, Kaul, JJ. The Division Bench, after considering various decisions of the Supreme Court expressed its regret and inability to agree with the view taken by a Division Bench of this Court in Special Appeal No. 643 of 1967 following single Judge decision of this Court in Hart Raj Singh v. Sanchalak Panchayat Raj (supra) and accordingly refer red the case to a larger Bench being of the view that the High Court ought not ordinarily, in exercise of its jurisdiction under Article 226 of the Constitution, lend its aid to a party by the extraordinary remedy of mandamus or certiorari when the relief asked for relates to a claim which is otherwise barred by limitation, It is in these circumstances that the matter came up before the Full Bench of this Court.

32. The main question to be considered is whether this Court should ordinarily issue a writ of mandamus commanding the employer to pay the salary and allowances of the employee which could not otherwise bo claimed by means of a suit on account of the bar of limitation.

33. It is not disputed that the limitation for recovery of a claim for salary or wage is governed by Article 102 of Limitation Act. 1908 which in the Limitation Act of 1963 corresponds to Article 7. The provision prescribes a limitation of 3 years for the recovery of salary wage counted from the time wages 'accrue due'. It is clear, there-fore, that if suit is tiled within three years from the date of accrual of salary or wage the claim cannot be resorted on the ground of limitation, notwithstanding that the public servant remained under wrongful suspension or dismissal during the period, There are of course, no reasons given by the Supreme Court for reaching the aforesaid conclusion in the case Madhay Laxman Vaikuntha v. State of Mysore : [1962]1SCR886 , but it is manifest from the decree in respect of 3 years and 2 months passed by the Lordships. In this case reliance was placed by Supreme Court en the decision, Punjab Province v. Tarachand, A.I R. 1947 F.C. 23, in which on page 29 it is observed:

It Is obvious that If this was a case of breach of contract they were successive breaches at the end of each month and the respondent would still be entitled to recover arrears of pay which fell due within a period of three years before the institution of the suit.

34. It, therefore, follows that, the right to recover wages or salary under Article 102 or Article 7 is continuing right and each successive breach provides a fresh cause of action. The legal consequence is that for each such cause of action suit could be brought only within a period of three years excluding the statutory period of two months prescribed for notice.

35. The Supreme Court in State of Madhya Pradesh v. Syed Qamarali, (1967) 1 Serv. LB. 228 (SC) observed :

If an order of dismissal Is made in breach of mandatory provisions and is found to be void and inoperative it becomes totally invalid and such an order of dismissal bad, therefore, on legal existence and it was not necessary for the respondent to have the order set aside by a court.

36. I am, therefore, of opinion that in the eye of law, the order of dismissal ceases to have any existence and the period of dismissal in consequence must be regarded as a period for which the dismissed employee must be deemed to be in service.

37. In Jal Chand Sawhney v. Union of India (1970)(2) S.C.J. 288. Honble Shah, J., as he then was, observed:

If the order of dismissal is set aside the public servant is deemed to be in service throughout the period during which the order of dismissal remained operative and his right to sue for salary arises at the end of every month in which he was law fully prevented from earning the salary, which be could, but for the illegal order of dismissal, have earned...the plaintiff's claim was governed by Article 102 of the Limitation Act, that the remuneration payable to him accrued due month after month, and that the plaintiff's claim for salary beyond the period provided by the third column of Article 102 was barred by the law of limitation.

38. On the above view the Court held plaintiff Jai Chand Sawhney entitled to salary only for three years and two months prior to the date of the suit and barred by time for period earlier to this It may be mentioned that in this case the Supreme Court repelled the contention that the limitation of three years under Article 104 commenced to run from the date on which the order of dismissal is set aside either by departmental authority or by civil Court in a suit or other proceeding and the cause of action in a suit by a dismissed employee arises on the date of the institution of the suit as was held in State of Mad a? v. A.V. Anantharaman : (1963)IILLJ584Mad .

39. It was further observed by the Court that the period of limitation under Article 102 commences to run when the wages ' accrue due ' and wages accrue due when in law the servant becomes entitled to wages.

40. The legal position which emerges from the above authorities may be summarlsed thus; if an order of dismissal is made in breach of mandatory provision such an order is void and inoperative and is non est and can be ignored by the aggrieved employee, it is not necessary that he should take step to get the order set aside of declared void by a Court of law, such an 'order being void ab initio, the dismissed 'employee will be deemed 10 be throughout in service The same result follows when an order of dismissal is declared void or set aside.

In that case also he will be deemed to be in service during the period of his dismissal. Consequently the employee would be entitled to claim salary or wages at the end of each completed month of service when it accrues due, during the entire period of illegal dismissal. The limitation for each such claim of salary or wage is three years as provided in Article 7 of the Limitation Act, 1963. If he does not press his claim within three years from the date of accrual of salary then the same would become barred by the law of limitation. Judging the petitioner's claim for recovery of arrears of salary in the light of this legal position ft is clear that petitioner's claim for salary was clearly barred by limitation on the date of presentation of the present petition. If, instead of filing the present writ petition he had filed a civil suit for the recovery of arrears of salary his claim would certainly have been held, barred by limitation provided under Art 7 of the Limitation Act, 1963.

41. It now remains to be considered whether this Court in exercise of powers under Article 226 of the Constitution can or would issue mandamus for payment of Salary to Hanifi for the period from 20-10-1959 to 22-1-1964 when it is manifestly barred by limitation.

42. It is clear from the order contained in Annexure 4 and the counter. affidavit that the appellant disallowed the salary not in terms of rule governing the conditions of his service but it refused payment on the ground of salary being barred by limitation. The relevant rule in the Indian Railway Establishment Code Vol. II is 2044, which reads as under:

2044 (F.R. 54)-Pay After Reinstate-mont: (1) When a Railway servant who has been dismissed, removed, compulsorily retired or suspended is reinstated or would have been reinstated but for his retirement on superannuation while under suspension, the authority competent to order the reinstated shall considered make specific orders-

(a) regarding the pay and allowances to be paid to the Railway servant for the period of his absence from duty or for the period of suspension ending with the date of his retirement on superannuation as the case may be; and

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

(2) Whether the authority mentioned in Sub-rule (i) is of the opinion that the railway servant has been fully exonerated or, in the case of suspension, that it was wholly unjustified, the railway servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended, as the case may be.

(3) In the other cases, the railway 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:

Provided further that such proportion of such pay and allowances shall not be Jess than the subsistence and other allowances admissible under Rule 2043 (F.R. 53).

(4) In a case falling under Clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

(5) In a case falling under Clause 0) the period of absence from duty shall not be treated as a period spent on duty, unless such competent authority specifically directs that it shall be so treated for any specified purpose;Provided that if the Railway servant so desires, such authority may direct that the period of absence from duty shall be converted into leave of any kind due and admissible to the Railway servant.

43. The learned Counsel for the appellant pointed out that this rule had no relevance so far as the facts of the present case are concerned. He, however, referred to a circular letter issued by the Railway Board which dealt with classes of payment of salary to an employee, on being reinstated This circular letter reads:

Sub: Admissibility of pay and allowances to Railway servants on reinstatement as a result 'of Court decree, etc.

Reference Board letter No. E(D and A) 56R G-6-12, dated 22-9-1961 on the above subject. The existing 'explanation' under item (ii)(a) of para 3 thereof may be substituted by the following:Explanation'-Arrears to be paid under the law of limitation will be for a period of 3 years immediately preceding the date of the judgment of the Court of law quashing the dismissal, removal, etc., orders the date on which the appellate reviewing authority, orders of reinstatement on the ground that the procedure required under Article 311 of the Constitution has not been followed. Where there is more than one judgment, the relevant date will be date of final judgment by which the order of dismissal, etc., was quashed.

44. The Court in O P, Saxena v. General Manager, N.E. Railway (W.P. No 94 of 1969, decided on 5-8-1971)(All) observed :

In absence of any form being pres. cribed the directions issued by the Railway Board or the General Manager in the form of circular letters for the guidance of subordinate authorities must be taken to be rules made by these authorities by virtue of powers conferred on them under the said Rules 157 and 158.

45. This circular of Railway Board has a force of law order para 157 of the Indian Railway Establishment Code and in any case under the Rule also after this amendment of the explanation time barred salary is irrecoverable.

46. In the instant case Sub-rule (2) does not apply as it does not deal with a dismissal ab initio void and non est.

47. In view of the above position if the employee chooses to seek relief by filing a petition under Article 226 of the Constitution, the question that would arise for consideration is whether, a claim which is barred by limitation can be granted in exercise of discretionary jurisdiction vested in the High Courts under Article 226.

48. The learned Counsel for the respondent argued that the payment for the period 20th October, 1959 to 22nd January, 1964 was denied vide letter dated 11-8-1967 and the petitioner in January, 1968, filed the present writ petition he, therefore, maintained that the writ petition having been filed well within reasonable time cannot be said to be barred by limitation as no limitation is prescribed for filing of a writ petition. He stated that relief prayed for in the writ petition was for the quashing of Annexure 4 in so far as it deprived the petitioner of his arrears of salary for the period and for a writ of mandamus commanding the opposite parties to pay the petitioner his salary and allowances for the said period together with such increments as he would have normally drawn had he not been removed from service his argument in short is that the relief of mandamus is prayed for is only in the nature of consequential relief which would flow from quashing of the order contained in Annexure 4 to the writ petition. He relied on the case Shyam Sunder Dorey v. Union of India : (1965)IILLJ321Cal . It is observed in this decision:

If so. there is no reason why an authority cannot be directed to pay arrears of pay and allowances which the petitioners could have earned unless suspended without any lawful justification.

49. The other cases relied upon by him are, Union of India v. N.R. Venkataraman Naidu (1975) 2 S.L.R. 353 (Mad), Tami Kumar v. Chief Commercial Superintendent : AIR1965Cal75 , Hari Raj Singh v. Sanchalak Panchayat Raj, U.P. Government, Lucknow : (1968)ILLJ407All , Union of India v. T.L. Dakshina Murti : AIR1975Mad337 , T. Gopinath v. Divisional Superintendent, Southern Railway, (974) Lab. I.C. 1078 and Ram Pratap V. Municipal Corporation on, Delhi (1975) 2 Serv. L.R. 833 (Delhi). It may be mentioned that none of these cases referred by the learned Counsel can be said to be direct authority supporting the proposition argued by him. In the case, Union of India v. N.R. Venkataraman Naidu (supra) reliance was placed on Ext. A10 signed by the Disciplinary Authority issued and communicated to the employee stating that the period from the date of suspension to the date of reinstatement was treated as on duty. This letter was taken to be an acknowledgment of liability under Section 19 of the Limitation Act. In the instant case there is no such letter which can be said to be an acknowledgment covered by Section 19 of the Limitation Act.

In the case, Shyam Sunder Dorey v. Union of India : [1965]58ITR130(Cal) (supra) the employee was suspended during the pendency of a criminal case. After acquittal departmental proceedings were started and the employee remained under suspension. During the suspension period ho was being paid subsistence allowance. The employee was placed under suspension on 12-9-1959 and was reinstated on 4-7-1961, hence there was no question of any arrears of salary having become barred by limitation. in Tarni Kumar v. Chief Commercial Super intendent (supra) the employee was suspended on 4-5-1956 and was dismissed OB 29-7-1959 on account of his being convicted in a criminal case. Later on he was acquitted from the High Court and he was reinstated en 27-8-1961. It was observed by the Court that there was no difference in principle as between the pronouncement of civil and criminal Courts in this context and relying upon the Supreme Court decision. Devendra Pratap Narain Rai Sharman v. State of U.P. : (1962)ILLJ266SC . it was held that Rule 2044 of the Railway Establishment Code, Vol. II had no application.

In this case the appellant Devendra Pratap was reinstated on 30-3-1959 in compliance with the orders of dismissal having been quashed by the High Court. On his reinstatement he was posted at Tahsil on April 28, 1959. He applied to the Accountant General for payment of arrears of salary and allowances due to him. The Accountant General by letter dated 18-5-1959. informed the appellant that he was entitled to draw pay and allowances with effect from 28-5.1959 and as regards arrears of pay and allowances for the period April 21, 1952 and April 28, 1959 are a reference has been made to the State Government about his terms and conditions of reinstatement.

50. The appellant was again suspended by order dated 11-7-1959 issued by the Board of Revenue and was directed to hand over charge. On July 24. 1959 the Board of Revenue ordered that salary of the appellant for the period between April 21 1952 and the date of taking over charge of his duties on reinstatement will be fixed as follows :

(1) The pay from 21-4-1952 till the date of orders of his dismissal will be limited to the subsistence allowance of Rs. 76/11/-per month already drawn by him.

(2) The pay for the period from the date following the date of order of his dismissal till the date of his taking over charge of his duties as Tehsildar on reinstatement will be fixed at Re. 1 per month as token pay.

51. The appellant was informed that the period of his dismissal from 21-4-1952 to the date of his taking over charge of his office on reinstatement will be treated as on duty and will count towards pension. It was in these circumstances that the matter came up before the High Court and it was held that the second enquiry was not barred and appellant could not have been deemed to have been confined with effect from April 1953. The appellant had not claimed the salary for the period 21.4.1952 to 24-11-1954 in the civil suit by him. He should be deem-ed to have relinquished that part of his claim. Regarding the salary for the period November 24. 1954 to April 28, 1959 the High Court held that fixation of Re. 1 by Board of Revenue as token salary of the appellant amounted to punishment which Government could not impose without following the procedure laid down by Article 311 of the Constitution There was no jurisdiction for not granting him full salary till July 14, 1959, the date till which he continued to function as Tehsildar after reinstatement. The High Court further observed:

A writ of mandamus can however, only direct the opposite parties to proceed in accordance with law.

The High Court further held that the appellant was not entitled to any higher salary. It was in these circumstances that the matter came up for consideration before the Hon'ble Supreme Court and after considering Fundamental Rule 54, it was observed :

This rule has no application to cases like the present in which the dismissal of a public servant is declared invalid by Civil Court and he is reinstated. This rule, undoubtedly enables the State Government to fix the pay of a public servant whose dismissal is set aside in a depart, mental appeal. But in this case the order of dismissal was declared invalid in a civil suit. The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of adjudication of civil Courts is to declare that the appellant had been wrongly prevented from at-tending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had ho been permitted to work.

52. In deciding the Case the Supreme Court did not say anything to indicate that on reinstatement as on the order of dismissal being held void, the employer would be liable to pay even time barred arrears of salary, as no question of limitation was raised and the Court had no reason to decide any such question.

53. The Supreme Court did not interfere with the discretion exercised by the High Court in having disallowed the Claim of the appellant for salary prior to the date of the suit.

54. The appellant's contention that Rule 2014 above does not apply to the case of the respondent is well-founded. Rule 2044 applies to the cases of dismissal, removal or compulsory retirement which are set aside by departmental authority and does not apply to a case where an order of dismissal has been found invalid by a court of law and is either set aside by the Court on that ground or is set aside by a departmental authority on the ground of decision of Court to that effect.

55. In this case also the order of termination of service passed against the respondent, was set aside by the department because. Rule 149 of Indian Railway Establishment Code was struck down in Moti Ram Deka's case : (1964)IILLJ467SC (supra). Consequently the order of termination being lacking in jurisdiction was abinitio void and there was no question of his reinstatement, and respondent was not entitled to salary for the entire period during which he was under suspension and there was no question of his salary being determined under Rule 2004, with the result that limitation for recovery of salary as provided under Article 7 of the Limitation Act, 1963 continued to accrue and the amount of arrears in dispute became barred by time.

56. Quite apart from this even, if one were to assume that Rule 20 14 applies to the respondent's case in view of amendment of the explanation to Rule 2004 made by the Railway Board which it was competent to do so under para. 157 of the Indian Railway Establishment Code arrears of salary anterior to reinstatement was barred by time and cannot be claimed.

57. It has already been pointed out that salary accrues from month to month and it does not accrue from the cause of action. The respondent was reinstated with effect from 23.1-1967. His services were terminated with effect from 7-12-1960. The respondent did not take any steps to set up a claim for salary. To say that cause of action accrued to the respondent only after his reinstatement is against the weight of authorities. If on reinstatement he was refused salary which was barred by limitation it cannot be said that such a statutory objection against payment of salary was not open to the appellant.

58. The learned Counsel for the respondent argued that existence of other adequate remedies is not per se a bar to the issue of high prerogative writ and there can be no bar for an employee to seek relief through a petition under Article 226 instead of a civil suit, in, excess. the authority concerned has acted in excess of jurisdiction or in contravention of principles of natural justice and fair-play.

59. The proposition so far as it goes may be correct. The existence of an alternative remedy by way of civil suit does not act as an absolute bar to a petition under Article 226,

60. But It is equally clear that in respect of, a relief which is barred by the law of limitation and, therefore, cannot be decreed in a civil suit must be rejected by the High Court sitting on the writ side. In exercising jurisdiction under Article 226 of the High Court acts according to law. in other words, it issues the prerogative writs having due regard to the various statutory provisions. It is not as though while exercising its constitutional jurisdiction under Article 226 the Court is above the law of the land. In fact it acts in accordance with statute law. The law of limitation is one such statute. Consequently if a particular claim is barred by the law of limitation then it is not open to the High Court exercising power under Article 226 to issue mandamus commanding its payment by the appellant for such a command, would not be in accordance with law. It is wrong to contend, therefore, that a claim which would otherwise be held barred by limitation in a civil suit could be accepted by the Court und'-r Article 226 and its payment enforced by mandamus. In Stale of Madhya Pradesh v. Bahilal Bhai : [1964]6SCR261 , while considering the discretionary bar under Article 226 at page 1011 it was held t

It may, however, be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extraordinary ; emtdy of mandamus. Again where even if there is no such delay the Government or the statutory authority, against whom the consequential relief is prayed for, raises a prima facle triable issue as regards the availability of such relief on the merits on the grounds like limitation, the Court should ordinarily refuse to issue the writ of mandamus for such payment.

61. The writ of mandamus is a high prerogative writ of a most extensive remedial nature and is, in form, a command issuing from the High Court, directed to any person, corporation, or inferior court, requiring him or them to do some particular thing therein which appertains to his or their office and is in the nature of a public duty. It, therefore, follows that a writ of mandamus cannot be demanded ex debito justitlae but it issues only in the discretion of the Court.

62. Another aspect of the matter is that by mandamus the High Court can command the performance of a legal duty by a public servant or an authority. Such an authority can legitimately refuse the payment of time barred salary to a Government servant. That being so, the public authority is under no legal duty or obligation to pay a time barred claim to salary or wage. If the Court issues mandamus commanding him to pay a time barred claim of salary then it could amount to compelling the public servant to do what he is not expected to do under law. The law of limitation prohibits the recognition of a claim barred by time. Therefore, such a command would be outside the pale of mandamus.

63. There is no principle or authority under which mandamus can be issued commanding the payment of arrears of salary barred by the law of limitation. The counsel for the respondent could not cite a single authority to support the decision of the learned single Judge that mandamus in respect of such a claim could be issued.

64. The learned Counsel argued that the Limitation Act only barred the remedy by way of suit and did not extinguish the right and consequently, respondent was entitled to relief of mandamus for payment of arrears of salary beyond three years. I do not consider it necessary to refer to decisions because the proposition is not disputed that the statute of limitation bars the remedy with-out touching the right. But question in this case is whether statute permits recovery of time barred salary. There is nothing on record to show that there is any rule which creates a right in the respondent to realise arrears of salary without any limitation of time. If the recovery of uny amount is barred by the law of limitation, it is difficult to hold that appellant was duty bound and under obligation to pay the time barred arrears of salary.

65. Even the Courts of Common Law in. England were bound by the Law of limita tion, but not the Courts of Chancery. Yet the Chancery Courts insisted on expedition. It is trite to refer to the maxim ' delay defeats equity' or the Latin of it that the Courts help those who are vigilant and do not slumber over the rights. The Courts of Chancery, therefore, frequently applied to suits in equity the analogy of the law of limitation applicable to actions of law and frequently put a special limitation of their own if they thought the claim was unduly delayed. Story on Equity Jurisprudence (Third Epilion p. 244) states the legal position thus :

It was, too, a most material ground, in all bills for an account, to ascertain whether they were brought to open and correct errors in the account recentifacto ; or whether the application was made after a great lapse of time. In cases of this sort, where the demand was strictly of a legal nature, or might be cognizable at law, Courts of equity governed themselves by the same limitation as to entertain such suits as were prescribed by the State of Limitation in regard to suits in Courts of common law in matters of account. If, therefore, the ordinary limitation of such suits of law was six years, Courts of a equity would follow the same period of limitation. In so doing, they did not act, in cases of this sort (that is, in matter of concurrent jurisdiction) so much upon the ground of analogy to the Statute of Limitation, as positively in obedience to such statute. But where the demand was not of a legal nature, but was purely equitable; or where the bar of the statute was inapplicable ; Courts of equity had another rule, founded sometimes upon the analogies of the law, where such analogy existed, and sometimes upon its own inherent doctrine, not to entertain state or antiquated demands, arid not to encourage laches and negligence. Hence, in matters of account, al. though not barred by the Statute of Limitations, Courts of equity refused to interfere after a considerable lapse of time, from considerations of public policy, from the difficulty of doing entire justice, when the original transactions had become obscure by time, and the evidence might have been lost, and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim,, vigilantibus, non dormientibus jura subveniunt. Under peculiar circumstances, however, excusing or justifying the delay, Courts of equity would tot refuse their and in furtherance of the rights of the part; since in such cases there was no pretence to insist upon laches or negligence, as a ground for dismissal of the suit ; and in one case carried back the account over a period of fifty years.

66. No doubt a petition under Article 226 is not a suit and it is also not a petition or an application to which the Limitation Act applies. To put curbs in the way of enforcement of rights through legislative action might well be questioned. If a short period of limitation were prescribed the right might well be frustrated. Prescribing too long a period might enable stale claims to be made to the detriment of other rights which might emerge. The question that arises then for consideration is, what is the standard for this Court to follow The question is one of discretion for this Court to follow from case to case. In the instant case the respondent made a representation in the year 1965 against the order of termination of his service passed in December, 1960 hearing that the provisions of Rules 149 and 148 were declared unconstitutional. Therefore, law will presume that respondent knew the unconstitutionality of the order and it was his duty to have set the machinery of law in motion, he cannot abandon it to resume it after a number of years.

67. The normal remedy for recovery of money, withheld under mistake of law Is by suit. Article 226 of the Constitution provides concurrent remedy in respect of the same claim. The extraordinary remedies correspond to a remedy in an ordinary suit and the latter remedy is subject 10 the bar of a statute of limitation, the Court in its writ jurisdiction acts by analogy to the statute, adopts the statute as its own rule of procedure and in the absence of special circumstances impose the same limitation on the summary remedy in the writ jurisdiction (See M/s, Tilochand and Motichand v. H.B. Munshi : [1969]2SCR824 .

68. Further in the present writ petition there was no averment that the petitioner had made a demand for arrears of salary from the appellant and the same was refused. The requirement as to demand and refusal of prescribed relief is an essential prerequisite for a writ of mandamus. In Halsbury's Laws of England Vol. II page 106, it is stated :

As a general rule the writ will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that such demand was met by a refusal.

69. It may be mentioned that the requirement of demand and denial of the right sought to be enforced by a petition of mandamus is not merely on technical point, In my opinion it is point of substance which must be taken into consideration when it issues a writ of this nature. See Shiv Shanker v. Madhya Pradesh Slate Government A.I.R. 1951 Nagpur 58.

70. There is no specific averment on this point in the affidavit. Thus I am of the view that the petitioner ought to have approached the authority before filing the present writ petition and on this score also 1 do not consider this to be a fit case for issuing mandamus to an authority which had no reasonable chance in the matter to take a decision

71. It may be unfortunate that not withstanding reversal or dismissal order the employee may be unable to recover the entire salary from the employer, but it is for the Legislature to provide for such a situation and not for the Court to provide relief against the express provision of the Statute of Limitation.

72. For the reasons discussed and mentioned above, the view taken by learned single Judge in Hari Raj Singh v. Panchayat Raj, U.P. [1968-I L.LJ. 407]; (1968) Lab-I.C. 900 (All)(supra; did not lay down correct and sound law.

73. I, therefore, hold that the view taken by the learned Judge lacked any basis in law and is liable to be set aside.

74. I Would, therefore, allow the appeal with costs.

BY THE COURT

75. In view of the decision of the majority the appeal is dismissed with costs.

T.S Misra, J.

76. Pronounced under Chapter VII Rule 1(2) of the Rules of Court.


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