P. C. Pandit, J.
1. This is a defendant's appeal against the order of the learned Senior Subordinate Judge, Ambala, granting the plaintiff a decree for Rs. 10,712/8/- with costs on account of arrears of salary and damages.
2. On 18th of February, 1918 Jagdishwar Lal plaintiff was employed as a civilian clerk in the Defence Department of the Government of India. He was confirmed as 3 Lower Division Clerk on 1st of February, 1924. Subsequently, he accepted the combatant status and when he was in active service he contracted duodenal ulcer for which he was operated on 3rd of October, 1945. After the operation, the Medical Board declared him unfit for active mllitary service but fit for a civilian job and he was placed in category 'C'. He was transferred to Ambala Cantonment in February, 1946. When he reported himself for duty at Ambala Cantonment, he was asked to appear before a second Medical-Board. The-said Board declared him unfit for ser-vice and placed him in category 'E'. Later on, he was discharged from service with effect from 4th of April, 1946. The Army Headquarters, however, were of the view that it was an irregular discharge and they directed that he should be discharged afresh. Consequently, he was discharged with effect from 28th of April, 1349. It appears that the Accounts Department raised certain objections regarding his pension and pay. As a result, on 31st of October, 1953, the President of India regularised his period of absence from 4th of April, 1946 to 27th of April, 1949, partly on full pay, partly an half pay and part of it on extraordinary leave without pay.
This led to the present suit which was filed by him in 'forma pauperis' on 1st of July, 1954 against the Union of India for recovery of Rs. 11,000/- as arrears of salary from 4th of April, 1946 to 27th of April, 1949, or In the alternative for damages on account ef illegal discharge. His allegations were that the order of his discharge with effect from 4th of April, 1946 was illegal as it was subsequently admitted by the defendant itself, and the same was set aside and he was discharged afresh with effect from 28th of April, 1949. According to him, even the second order of his discharge with effect from 28th of April, 1949 was also bad in law inasmuch as the proceedings of the second Medical Board disclosed that the plaintiff was not permanently incapacitated for further service and his incapacity was only partial. He averred that he was in service of the defendant-Union from 4th of April, 1946 to 27th of April, 1949, and was, therefore, entitled to full salary and allowances.
3. The suit was resisted by the Union of India, 'inter alia', on the grounds that the suit by a Government servant for arrears of pay and allowances was not competent, that it was barred by limitation, that he was not entitled to any salary because he did not do any work during this period and that the order of his discharge from service with effect from 4th of April, 1946 was not illegal.
4. On the pleadings of the parties, the fallowing issues were framed:
(1) Whether the discharge of the plaintiff from service by order dated the 4th April, 1946 was Illegal and 'ultra vires'?
(2) Is the suit within time?
(3) To what amount, if any, is the plaintiff entitled on account of pay and allowances from the defendant?
(4) Whether the suit for arrears of pay and allowances claimed by the plaintiff is not competent?
5. The learned Senior Subordinate Judge held that the order of discharge of the plaintiff with effect from 4th of April, 1946 was illegal and 'ultra vires', that the suit was within time, that a suit for arrears of pay and allowances was competent against the Government if the order of discharge or dismissal from service was illegal and that the total amount due to the plaintiff from the defendant was Rs. 10,712/8/-. On these findings, the plaintiff was granted a decree for the said amount with costs against the defendant.
6. The first question raised by the learned counsel for the appellant is that the finding of the trial Court with regard to limitation was incorrect. According to him, Article 120 of the Indian Limitation Act had been wrongly applied by the trial Court. He submitted that the case was governed by Article 102.
7. The suit is for the recovery of Rs. 11,000/- as arrears of salary. This precise point was decided by theFederal Court in the Punjab Province v. Tara Chana, AIR 1947 FC 23, where it was held:
'The term 'wages' in Art. 102 includes pay or salary. Therefore, the period of limitation for a suit to recover arrears of pay is governed by Art. 102 and not Art. 115, 120 or 131.'
8. Learned counsel for the respondent placed his reliance on a Division Bench decision of the Allahabad High Court in Jagdish Prasad Mathur v. United Provinces Government, AIR 1956 All 114, where it was observed that a suit for a declaration that an order of dismissal from service passed against the plaintiff, a Government servant, was wrongful, illegal and 'ultra vires', with a claim for arrears of pay was governed by Article 120 and not by Article 14 of the Limitation Act.
9. In the first place, this authority is distinguishable on facts, in the present case no declaration is being claimed as was done in the Allahabad case. Secondly, reliance was placed by the learned Judges of the Allahabad High Court on Abdul Vakil v. Secretary of State, AIR 1943 Oudh 368, which case had specifically been dissented from in AIR 1947 F.C. 23. Thirdly, the Federal Court authority was not noticed by the Allahabad High Court. Following the Federal Court decision, I would hold that the present suit is governed by Article 102 of file Indian Limitation Act and the same having been filed more than three years after the salary had become due, is clearly barred by limitation.
10. Learned counsel for the respondent then contended that the present case was not for the recovery of the arrears of salary alone, it was mentioned that the amount of Rs. 11,000/- was, in the alternative, being claimed for damages on account of illegal discharge. Even- if that he so, the case would be governed by Article 115 of the Limitation Act and I fail to see how the respondent would be in a better position, because under this Article also the period of limitation is three years from the date when the breach of the contract took place. That breach having taken place in 1949, the present suit filed in 1954 is obviously barred under this Article as well.
11. Article 102 being applicable to this case, according to the Federal Court decision, Article 120 was inapplicable because that applied only in those cases for which no period of limitation was provided elsewhere in the Schedule. The trial Court was, therefore, in error in applying Article 120 and in holding the suit to be within limitation. I would, therefore, reverse this finding of the Court below and hold that the suit was barred by limitation. The same is, consequently, dismissed on this ground.
12. In view of the above finding, it is not necessary to go into any other question arising In the case. Since the Union of India themselves have admitted that a sum of Rs. 358/13/- only is due to the respondent and even In the appeal they have not challenged this amount and have not paid court-fee thereon, therefore, the respondent Is entitled to a decree for this amount only.
13. The result is that the appeal is partly accepted, the Judgment and decree of the trial Court are reversed and instead a decree for Rs. 358713/- only is passed in favour of the plaintiff-respondent against the Union of India. In the circumstances of this case, however, I will leave the parties to bear their own costs throughout.
D.K. Mahajan, J.
14. I agree.