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Shyam Sundar Misra Vs. Municipal Chairman - Court Judgment

LegalCrystal Citation
SubjectContract
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 55 of 1961
Judge
Reported inAIR1964Ori111
ActsLimitation Act, 1908 - Sections 3 and 9 - Schedule - Article 102; Code of Civil Procedure (CPC) , 1908 - Order 2, Rule 2; Specific Relief Act, 1877 - Sections 42; Contract Act, 1872 - Sections 2 and 25(3)
AppellantShyam Sundar Misra
RespondentMunicipal Chairman
Appellant AdvocateN.V. Ramdas, Adv.
Respondent AdvocateB.K. Pal, Adv.
DispositionAppeal dismissed
Cases ReferredMills Ltd. v. Pipraich Sugar Mills Mazdoor Union
Excerpt:
.....v smt gita banik, 1996 (2) glt 246, are not good law]. - it is now well settled thatin a suit for a declaration wat the order of dismissal passed on a public servant is wrongful and for recovery or arrears of salary etc. 10. for these reasons we are satisfied that the plain-tiffs suit was rightly dismissed......such as pay and otner emoluments due to him. hence ordinarily limitation would run from the date of dismissal and it would expire within three years from that date. it is now well settled thatin a suit for a declaration wat the order of dismissal passed on a public servant is wrongful and for recovery or arrears of salary etc. due to him, the correct article to be applied is article 102 of the limitation act (see punjab province v. tara chand, air 1947 fc 23 which nas been followed in madhav laxman vaikunthe) v. state of mysore, air 1962 sc 8.5a. it is true that if the effect of filing an appeal was to suspend the operation of the order of dismissal either by virtue of any special provision in the orissa municipal act or in consequence of the passing of a stay order by the.....
Judgment:

Narasimham, C.J.

1. This is a plaintiffs appeal against the judgmentof the Subordinate Judge of Berhampur dismissing nis suit tor arrears of salary against the Pariakimedi municipality on the sole ground that the suit was barred by limitation.

2. The plaintiff was an accountant in the Pariaki-medi Municipality. He was suspended on 5-1-1951 ana dismissed from service on 1-4-51. He tiled an appeal toGovernment against that order of dismissal, but that appeal was dismissed on 1-3-56 (see Ext. H). In the meantime sometime in the year 1955 he fiied a petition uncier Article 226 of the Constitution in the High Court (see Ext. 1) O.J.C. 286/55 which was disposed of by a Bench of thisCourt on 11-7-1957 (reported in AIR 1957 Orissa 222 snyam Sundar Misra v. State of Orissa). The Bench held that the order of dismissal passed by the Municipality was in contravention of the Rules regarding the conditions or service of Municipal servants and hence set it aside. I hereafter there was some correspondence and negotiation Between the appellant plaintiff and the Municipality for payment of arrear salary and other emoluments due to Sim till the date of his superannuation namely 7-7-54. ine Municipality by its letter, Ext. 6 dated 18-6-60 informed the appellant that a net amount of Rs. 2499.37 Np. was payable to. him in full satisfaction of all his claims against the Municipality and he was asked to accept the said sum within 10 days from the receipt of notice. instead or accepting this offer the appellant filed the present suit under appeal on 11-/-60 claiming arrears of salary and other emoluments from the date of his suspension namely 7-1-51 till the date of his superannuation, namely Y-/-M, together with interest etc. amounting in an to RS. 6995.50 Np.

3. The Municipality's main defence was one or limitation which was accepted by the lower court.

4. Two points were pressed by Mr. Ramdas on behalf of the appellants :--

i) Limitation would run against the appellant any from the date of the judgment in 0. J. C. No. 28&/1955, viz. from 11-7-57 setting aside thel order of dismissal and as the suit was brought within three years from that date it was within time.

ii) In any case, the offer made by the Municipality in its letter Ext. 6 dated 18-6-60 agreeing to pay Rs. 2499.37 nP. in full satisfaction of the appellant's claim would furnish a fresh starting point for limitation under Section 25(3) of the Contract Act. in my opinion, neither or these contentions would prevail.

5. When the appellant was dismissed by the Municipality on 1-4-51 Were accrued to him the right to bring a suit for a declaration that the dismissal was unlawful and for other consequential reliefs such as pay and otner emoluments due to him. Hence ordinarily limitation would run from the date of dismissal and it would expire within three years from that date. It is now well settled thatin a suit for a declaration Wat the order of dismissal passed on a public servant is wrongful and for recovery or arrears of salary etc. due to him, the correct Article to be applied is Article 102 of the Limitation Act (see Punjab Province v. Tara Chand, AIR 1947 FC 23 which nas been followed in Madhav Laxman Vaikunthe) v. State of Mysore, AIR 1962 SC 8.

5a. It is true that if the effect of filing an appeal was to suspend the operation of the order of dismissal either by virtue of any special provision in the Orissa Municipal Act or in consequence of the passing of a stay order by the appellate authority, limitation may be saved until the appeal is disposed of as pointed out in Sita Ram v-Municipal Beard, Kanpur, AIR 1958 SC 1036. But here our attention has not been drawn to any provision in the Orissa Municipal Act which says that as soon as an appeal is filed by the Municipal servant the order of dismissal is held in abeyance. The plaintiff also did not state that the appellate authority stayed the operation of the order of dismissal. Similarly though the writ application (O. J. C. No. 285 of 1955) (reported in AIR 1957 Orissa 222), was admitted in 1955 and disposed of on 15-7-1957, it is not alleged that in consequence of the admission or that writ application the High Court stayed the order of dismissal. Thus, in any case, neither the pendency of the appeal nor the filing of the writ application under Article 226 would save limitation.

6. Mr. Ramdas, however, contended with considerable ingenuity, that until the High court, in the aforesaid writ application gave a declaration that the dismissal was unlawful, the plaintiff had no right to sue for arrears of salary and other emoluments, and consequently time would run against him only from the date of the order ot the High Court, viz., 11-7-57. This argument is not sustainable. Any employee who feels aggrieved by his dismissal from service by his employer has a right to sue not only for a declaration that his dismissal was wrongful, but also for the consequential relief for payment of arrears of wages and other emoluments. He cannot obviously split up the two reliefs and sue for the former relief only, in view of the express prohibition contained in Order 2 Rule 2, C. P. C. and Section 42 of the Specific Relief Act. Limitation for both the reliefs would therefore run from the date on which the right to sue accrued to him. If, however, instead of filing a regular civil suit for these reliefs he seeks for an alternative remedy by a direct application to the High court under Article 225 of the Constitution and does not pray for the consequential relief of arrears of salary, etc. he cannot urge that the right to ask for this latter relief aocruea only after the date of the judgment of this Court in that writ application.

7. In AIR 1952 SC 8 which Mr. Ramdas himself (sic) cited there are clear observations in support of this view In that case the public servant concerned was reduced in rank on 11-8-1948. He continued in service thereafter and eventually retired on superannuation on November 29, 1955. He filed a suit against the Government of Bombay only on 2-8-1954 for a declaration that the order of reduction in rank passed on 11-8-48 was void, inoperative and (sic) vires and for recovery of arrears of salary, allowances etc. Their Lordships of the Supreme Court while continuing the lower Court's view tfiat the order of reduction in rank was ultra vires and void, nevertheless granted him a decree for arrears of salary only from 2-6-1951 (three years prior to the date of institution of the suit) till the date of his retirement from service. His claim for arrears of salary prior to 2-6-1951 was held to be barred by limitation.

8. Mr. Ramdas, however, sought to distinguish we aforesaid Supreme Court decision by saying that there as the Government servant continued in service (though uniawtuiiy reduced in rank) there could be no question of suing tor a declaration that his dismissal from service was void, whereas here as the appellant plaintiff was dismissed from service on 1-4-1951 he could not ask for arrear of salary and other emoluments without first establishing that the dismissal was wrongful. In my opinion this distinction on facts does not affect the legal position. Tne right to sue and the commencement of the running of time for purposes of limita- tion. do not depend on the ultimate decision of the Court as to whether the order of punishment (of either dismissal or reduction in rank) was wrongful or lawful. They depend on the date on which the cause of action arose. Here the Tight to sue for wrongful dismissal and for recovery or arrears of salary and other emoluments arose on the date on which the order of dismissal was passed, namely 1-4-51, just as in the other (Supreme Court) case the right to sue for a declaration that the reduction in rank was unlaw ful and for arrears of salary etc. arose on the date on which the order of reduction in rank was ipassed, namely 11-8-1948. The fact that in the latter case the officer concerned continued to remain in service after the passing of the order, whereas in the instant case he was deprived of his service, as the result of the order of punishment passed against him has no bearing on the question of the right to sue or of limitation.

9. As regards the offer of the Municipality contamend in their letter Ext. 6 dated 18-6-1960 it is obvious that as the offer was made after the expiry of the period of limitation, Section 19 of the Limitation Act has no application. Hence Mr. Ramdas relied on Sub-section (3) or Section 25 of the Contract Act. But that sub-section also will not be of any avail. That sub-section refers to a promise made in writing by a person to pay wholly or in part a debt which would otherwise have been barred by limitation. The definition of the expression 'promise' in Section 2(b) of that Act shows that there must not only be a proposal but there must also be an acceptance of the proposal by the other side. Here, though by Ext. 6 the Municipalityoffered to pay to the plaintiff-appellant the sum or Rs. 249S.37 nP. in full satisfaction of all the claims of the plaintiff, within ten days from the date of receipt orthat notice, the plaintiff did not accept this offer, meexact date on which he received the notice is not on record,but as Ext. 6 was filed by the plaintiff himself and ne is also a resident of Pariakhimedi it may be reasonably interred that he received it in a day or two. His conduct in not accepting the offer and, on the contrary, in ruing a suit on 51-7-60 would show that he rejected the otter. Hence it ceased to be a 'promise' within the meaning or the Contract Act, and Sub-section (3) of Section 25 of that Act will be of Ho avail--See Bindae Dasya v. Chota, 16 Cal WN 636 and Venkatappayya v. Venkatappayya, AIR 1946 Mad 72. I may also refer to Pipraich sugar Mills Ltd. v. Pipraich Sugar Mills Mazdoor Union, (S) AIR 1957 SC 95 where it was held that a conditional offer cannot bind a party unless It is accepted by the other side, because till then it doesnot become a concluded agreement.

10. For these reasons we are satisfied that the plain-tiffs suit was rightly dismissed.

11. The appeal fails and is dismissea, but in the cir-cumstantes both parties will bear their own costs.

R.K. Das, J.

12. I agree.


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