1. This first appeal by the plaintiff is against the dismissal of his suit by the Additional Civil Judge First Class, Raipur.
2. The plaintiff was employed as a Kamdar in the Agriculture Department. He was suspended on 14-11-1946 with effect from 1-11-1946. On 13-3-1948, an order was passed dismissing him from service with effect from 16-12-1948 (sic), A sum of Rs. 853/-/9 was paid by him on 29-10-1946 for shortage in recoveries made by him. After his dismissal, a challan was put up against him on 15-2-1948 that he had misappropriated Government cash. This criminal case was withdrawn on 15-10-1954 by the State and consequently an order of acquittal was passed. The appellant filed the present suit on 1-12-1955.
3. The plaintiff's case is that he was dismissed from service without any departmental enquiry, contrary to the provisions in Section 240(3) of the Government of India Act. Consequently, the dismissal was wrongful and ineffective. He further stated that the dismissal was on account of an alleged charge of misappropriation of money which was not proved in the criminal case. He was, therefore, entitled to reinstatement in service. He claimed a declaration that he was in Government service, as the order of dismissal was wrongful. He also claimed a refund of the amount of Rs. 853-0-9 paid by him to Government and an amount of Rs. 3892/14/9 as arrears of pay.
4. The State Government pleaded that the plaintiff was only a temporary servant, that he had committed an irregularity in distributing taccavi in cash instead of in kind as required by rules, that he had misappropriated Government money, that his dismissal was proper and that he was entitled to no relief. As regards the criminal prosecution, it was admitted that it was withdrawn, but the reason assigned for this was that material documents had been lost from the record. It was also stated that the plaintiff had admitted his guilt in a memo addressed to Shri Sarvate, E.A.D. and had paid the amount of Rs. 853/- willingly. It was finally stated that the claim was barred by lime.
5. The plaintiff in his reply admitted that he distributed taccavi in cash instead of in kind, but he explained that he did so at the instance of his superior Shri Dewan. He admitted having written something on 21-10-1946 in the presence of Shri Sarvate, E.A.D., but pleaded that this was under undue influence.
6. The trial Court found that the dismissal of the plaintiff was without any departmental enquiry and was therefore contrary to Section 240(3) of the Government of India Act. It also held that the status of the plaintiff as a temporary servant was not material. The irregularity in distribution of taccavi was held not proved. However, the claim was dismissed, as it was barred by lime.
7. The learned judge of the trial Court was in error when he held in paragraph 14 of the judgment that there is no evidence on record to show that taccavi was distributed in cash. This fact was not in issue after the rejoinder of the plaintiff admitting that he had done so. On the contrary, his explanation that he did so at the instance of his superior Shri Dewan has not been made out. He had thus committed an irregularity in distributing taccavi.
8. The so-called admission of guilt made on 26-10-1946 is not on record and it is therefore difficult to say what was admitted. It related probably to the amount of embezzlement. Shri A. P. Sen for the appellant conceded before us that the claim for refund of the amount paid on this account is barred by time and did not press this part of the relief. We need not, therefore, say anything about the defalcation.
9. Shri H. L. Khaskalam for the State contended that as the plaintiff was a temporary servant, Government could terminate his services at any time without any departmental enquiry. It is true that the services of temporary Government servants can be terminated after reasonable notice without any departmental enquiry. However, we do not find adequate pleadings on record to support this contention. It is nowhere stated in the written statement that the termination was in enforcement of the terms of contract. Even, in the case of temporary servants, an enquiry is necessary if the termination of service is on a charge implying a stigma on his conduct. In the absence of a plea, this aspect cannot be raised in appeal by the defendant now.
10. The dismissal of the plaintiff was without framing any charges or giving him a statement of allegations against him. No departmental enquiry was held at all. The trial Court was right in holding that the dismissal was thus contrary to the provisions in Section 240(3) of the Government of India Act and was therefore wrongful.
11. The only question which arises in this appeal is whether the claim for declaration was barred by time. Shri Sen has tried to meet this finding of the trial Court on two grounds. Firstly, he submits that the cause of action arose only when the criminal case terminated in favour of the plaintiff, as any request for reinstatement before that date would have been premature. Secondly, he submits that Section 23 of the Limitation Act applies to this claim, as it is continuing breach of contract or a continuous wrong and therefore the the cause of action arose every moment of the time during which the breach or the wrong continued.
12. So far as the first contention is concerned, it is clearly without any substance. The cause of action for the declaration that the removal was wrongful has nothing to do with the criminal case. The fact of embezzlement is not relevant to that issue. The validity of the of the order of removal depends upon the compliance or non-compliance of the formalities enjoined under Section 240(3) of the Government of India Act only. A suit to declare the order illegal could therefore be brought as soon as it was passed and relief could have been given to the plaintiff as soon as the contravention was proved. The suit could not have been dismissed as premature on the grounds that the criminal case was pending.
13. The second contention is based on Section 23 of the Limitation Act, which is as follows:
'In the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be continues.'
Shri Sen argues that a breach of the contract of employment is committed by the Government every moment of the time during which, payment of wages is refused. According to him, the claim for declaration can never be barred by time. As regards arrears of pay, he agrees that the appropriate article is Article 102 and he is entitled to claim arrears for three years immediately before suit.
14. The implications of a continuing breach, of contract were explained by Mohmood J. in Bhojraj v. Gulshan Ali, (1882) ILR 4 All 493 as follows:
'The obligation created by the ikrar-nama of the 8th May, 1844, was not of such a continuing nature as is contemplated by the Act, and there could therefore have been no 'continuing breach' such as would entitle a suit based thereon to the benefit of Section 23 of the present Act. That section contemplates cases like the covenant by a tenant to keep the tenanted building in repair; cases in which the obligation created by the contract is ex necessitate of a continuing nature; and the right of action therefore naturally arises every moment of the time during which the breach continues. In the present case the obligation created by the ikrar-nama was of a recurring kind, and could admit only of a series of 'successive breaches' such as were provided for by Section 23, Act IX of 1871, but are not within the purview of Section 23 of the present Act.' In that case, the vendors of a village had agreed to pay the vendee certain fees annually. The breach in paying the fees was considered to be a successive breach of the contract and not a continuing breach. In our opinion, the obligation to pay a Government servant salary every month stands on a similar footing.
15. The decision in Sarat Chandra v. Nerode Chandra, AIR 1935 Cal 405 shows the difference between a 'continuing wrong' and an act which causes successive damage but is not a continuing wrong. It was held that the obstruction by the defendant by constructing on his own land so as to block the passage of the plaintiff who had a right of way is a continuing wrong within the meaning of Section 23 of the Limitation Act, but construction of a platform on municipal land would not be such a wrong as the encroachment is complete by one single act of construction. We may refer to the following passage from the judgment:
'The learned Judge has held that in these circumstances there was a continuing wrong and in this he appears to be correct. If authority is needed it is to be found in the case referred to by the learned Judge, in Dwarka Nath Sen v. Tara Prosonno Sen, AIR 1923 Cal 356 a case similar to the present case in which land reserved as a common passage by long usage and agreement was obstructed by the erection of a verandah to a house. Such an obstruction was found to be a continuing nuisance relying on the principle on which the Privy Council acted in Rajrup Koer v. Abdul Hossein (1881) ILR 6 Cal 394 (PC). Other cases which have been referred to are in the case of Nazimulla v. Wazidulla AIR 1916 Cal 733 (2) In which it was held that obstructions which interfer with a right of way are in the nature of continuing nuisance as to which cause of action is renewed de die in diem so long as the obstructions causing such interference are allowed to continue; in the case of Ashutosh Sadukhan v. Corporation of Calcutta AIR 1919 Cal 807 in which it was held that Section 23, Limitation Act, had no application in case of a Rowak or platform built over municipal land inasmuch as the injury was complete in the erection of the wall and the mere fact that the effect continued could not extend the time of limitation.'
16. The question of a continuing wrong under Section 23 of the Limitation Act was considered by the Supreme Court in Balakrishna v. D. M. Sansthan AIR 1959 SC 798. There, certain persons who were dismissed from the office of Guravs by the trustees of a temple in 1911 and had to deliver possession of the temple in pursuance of a decree under Section 9, Specific Relief Act, passed in 1922, sued the trustees in 1931 for a declaration that they were hereditary pujaris of the temple. It was held that the right to bring the suit for declaration had accrued in 1922 and was barred under Article 122 of the Limitation Act, as it was not brought within six years from 1922. The contention that Section 23 of the Limitation Act applied to the case was repelled as follows:
'It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that Section 23 can be invoked.'
'Can it be said that, after the appellants were evicted from the temple in execution of the said decree, the continuance of their dispossession was due to a recurring act of tort committed by the trustees from moment to moment? As soon as the decree was passed and the appellants were dispossessed in execution proceedings, their rights had been completely injured, and though their dispossession continued, it cannot be said that the trustees were committing wrongful acts or acts of tort from moment to moment so as to give the appellants a cause of action de die in diem. We think there can be no doubt that where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of Section 23 in such a case.'
17. The present case, in our opinion, does not attract the provisions of Section 23. The injury caused to the plaintiff by the order dismissing him is complete once for all, though the damage may continue for the rest of the plaintiff's life. It cannot be said that the order of dismissal constituted a recurring tort or a continuing breach of contract. The action of the defendant in dismissing the plaintiff stands on the analogy of ouster from land to which Section 23 has not been held applicable. (See Bibhuti Narayan Singh v. Guru Mahadev Asram Prasad, ILR 19 Pat 208: (AIR 1940 Pat 449) and Khair Mohammad Khan v. Mst. Jannat ILR 1941-22 Lah 22 : (AIR 1940 Lah 359) (FB). The order cannot be considered to be like a construction on the plaintiff's way on the defendant's land which becomes a wrong every time the plaintiff wants to pass. The State Government has passed only one order terminating the contract of service and if it is wrongful or is in breach of contract, the plaintiff must sue for a declaration within six years from the date of the order. We do not see how Section 23 of the Limitation Act can apply to such a case.
18. The question of the limitation applicable to a suit for declaration that the order of dismissal was wrongful was considered in Jagdish Prasad v. U. P. Government AIR 1956 All 114 and it was held that the suit for such a relief should be brought within six years from the date of the order. The same view has been taken in Abdul Vakil v. Secretary of State AIR 1943 Oudh 368 where it is laid down that a suit for a declaration that a particular order was a nullity and beyond jurisdiction of the Board, which passed it, was governed by Article 120 of the Limitation Act, This appears to us to be the correct position. The claim for declaration was thus barred by time.
19. Shri Sen then contends that the plaintiff is entitled to arrears of pay for three years even if the relief of declaration is refused. He argues that the order of removal being wrong, it should be treated as non-existent. The relationship of master and servant thus continued and he is entitled to pay which gives him a recurring cause of action. He points out that it was held in Punjab Province v. Tara Chand AIR 1947 FC 23 that arrears of pay can be claimed by a Government servant and the matter is governed by Article 102 of the Limitation Act.
20. We do not agree that arrears of pay can be claimed after the claim for declaring the order wrongful is barred by time. The claim for pay is consequential to the holding of the office. The Government by its wrongful order has denied the right of plaintiff to hold the office and has kept him out of it forcibly by a tortuous act or by an act amounting to a breach of contract. It was, therefore, necessary for the plaintiff to obtain a declaration about his being in office in spite of the order. Under the Limitation Act, the remedy for every cause of action (except those to which Section 10 applies) becomes barred by time after the lapse of one period or another. If no specific Article applies to the facts of any case, it falls under Article 120. The claim of the plaintiff to have the order declared wrongful or to have a declaration that he continued in office in spite of the wrong order became barred after the lapse of six years and no action for that remedy could thereafter be entertained. As the wrongful ouster from office cannot now be challenged, arrears of pay also cannot be claimed.
21. In the result, the appeal is dismissed with costs.