Skip to content


Jagdish Mitter Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2307 of 1965
Judge
Reported inAIR1969P& H441
ActsLimitation Act, 1908 - Articles 102 and 226; Code of Civil Procedure (CPC), 1908 - Sections 80
AppellantJagdish Mitter
RespondentUnion of India and anr.
Appellant Advocate Abnasha Singh, Adv.
Respondent Advocate J.L. Gupta, Adv.
Cases ReferredState of Madhya Pradesh v. Bhailal Bhai
Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....shamsher bahadur, j.1. the question which has been referred to this full bench by the order of p. d. sharma j. of 15th of february, 1967 arises from two sets of bench decisions of this court in k. k. jaggia v. state of punjab ilr (1966) 1 punj 302: regular first appeal no. 8-d of 1964 (punj) union of india v. maharaj decided by d. b. capoor and h. r. khanna jj. on 6th of september 1966 and the state of punjab v. ram singh brar. (1967) 1 ser lr 594 (punj) decided by mahajan and narula jj. on the one hand and union of india v. ram nath, ilr (1966) 2 punj 907 = (air 1966 punj 500) (dular and s. k. kapur jj) on the other which though in conflict with each other purport to follow the same authority of the supreme court in madhav laxman vaikunte v. state of mysore (1962)1 scr 886 = (air 1962.....
Judgment:

Shamsher Bahadur, J.

1. The question which has been referred to this Full Bench by the order of P. D. Sharma J. of 15th of February, 1967 arises from two sets of Bench decisions of this court in K. K. Jaggia v. State of Punjab ILR (1966) 1 Punj 302: Regular First Appeal No. 8-D of 1964 (Punj) Union of India v. Maharaj decided by D. B. Capoor and H. R. Khanna JJ. on 6th of September 1966 and the State of Punjab v. Ram Singh Brar. (1967) 1 Ser LR 594 (Punj) decided by Mahajan and Narula JJ. on the one hand and Union of India v. Ram Nath, ILR (1966) 2 Punj 907 = (AIR 1966 Punj 500) (Dular and S. K. Kapur Jj) on the other which though in conflict with each other purport to follow the same authority of the Supreme Court in Madhav Laxman Vaikunte v. State of Mysore (1962)1 SCR 886 = (AIR 1962 SC) the impasse which is sought to be void and unlawful can recover by a suit or proceedings filed in time his claim for arrears of salary in respect of the entire period when the he remained out of employment or is limited only to a period of three years before the institution of the suit or proceeding?....

2. The facts with regard to the case in point may now be briefly narrated. The petitioner Jagdish Mitter a temporary clerk in the office of the Post-Master General, Lahore since 9th of October, 1946 was discharged from service on 1st of December 1949. In a suit brought against the Union of India on 11th November, 1952. And dismissed by the trial Court on 22nd March, 1954 to the effect that the terminations of his service was illegal being in contravention of the relevant Rules and Regulations. In a further appeal of the Union of India the suit was again dismissed by a Single Judge of the Punjab High Court (S. B. Capoor J.) on 10th August 1959 and the petitioner though unsuccessful in his appeal before the Letters Patent Bench which dismissed it in limine on 19th August, 1960 eventually gained his point on 20th of September 1963, before the Supreme Court in a judgment which is often cited as an authority on the question of wrongful dismissal this being Jagdish Mitter v. Union of India AIR 1964 SC 449 According to the judgment of the Supreme court the decree passed in favour of Jagdish Mitter by the lower appellate Court was restored.

3. In consequence of the decision of the Supreme Court which declared that the petitioner was illegally dismissed from service 'and that therefore he continues in service.' The Director Postal Services on 2nd July 1964 passed an order for reinstating him as a lower division clerk with effect from 1st December 1949. It was further directed that the petitioner would be entitled to such of his pay and allowances for the period between 1st of December 1949 when his services were terminated and 4th of October 1963 when he was reinstated by virtue of the Supreme Court decision as would be permissible under the law of limitation. The petitioner kept on agitating departmentally for the full benefits which he claimed should have accrued to him as a result of his ultimate success in the litigation but his request was turned down on 6th of November 1964 and was offered only three years pay preceding the date of his reinstatement from which the sum which he had already drawn while temporarily employed was to be deducted. A notice under Section 80 of the code of Civil Procedure was then sent by the petitioner to the Government of India on 3rd of April 1965 and the present writ petition under Articles 226 and 227 of the Constitution of India was filed on 21st of August 1965 praying that he should be deemed to be in service right from the date of termination of his service i.e., 1st December 1949 and that the should be paid arrears of salary for the entire period without deduction of the amounts which he may have received while in service during that period Mr. Abnasha Singh counsel for the petitioner further submits that some ancillary relief for proper adjustment of seniority has also to be spelled out from the relief claimed in the petition.

4. Sharma J., who heard the petition on 15th of February 1967 noticed a conflict of judicial view regarding the question formulated aforesaid and the matter has therefore been sent for the authoritative pronouncement of this Bench on the question whether after the cause of action is found to be in time recovery can be effected for the entire period when the employee was under dismissal or suspension or up to a period of three years and two months in lieu of the notice period?

5. It is common ground that the time from which the period would begin to run is governed by Article 102 of the Indian Limitation Act, 1908 which is to this effect:-

'Description of suit Period of limitation Time from which period begins--------------------------- ------------------------------ -------------------------------------------102 For wages not Three years When the wages accrueotherwise expressly provided due.'

For by this schedule.

Ears of salary allowances etc., it was held that reduction in rank was unlawful but a decree in respect of three years period from 2nd June 1951 that is to say three years plus two months for notice prior to the date of institution of the suit was passed. The claim for arrears of salary prior to 2nd of June 1951 was held to be barred by limitation. The decision of the Supreme Court was relied upon by the Bench in Jaggia's case ILR (1966) 1 Punj 302 for th proposition of Article 102 of the Indian Limitation Act are applicable. It seems to me in retrospect that the observation made by the Bench in Jaggia's case ILR (1966) 1 Punj 302 that if the suit is within three years the entire arrears of wages of salary could be recovered when a public servant entire remained under wrongful suspension of dismissal was not in accord with the relief granted by the Supreme court in Laxman Vaikunthe's case (1962) 1 SCR 886=(AIR 1962 SC 8). No doubt their Lordships of the Supreme court did not give any reasons for this conclusion but it is manifest from the decree in respect of three years and two months passed by the court that the claim if otherwise in time was to be restricted to this period.

6. The claim of the petitioner is founded on a Division Bench Judgment of Gurdev Singh J and myself in Jaggia's case ILR (1966) 1 Punj 302 where in a writ petition it was held that the right to recover full pay and allowances for the period of interim suspension was to accrue to the aggrieved person from the date when the order of his dismissal was quashed and under Article 102 of the Limitation Act, if the proceeding was brought within three years from that date the entire amount of arrears during the period of wrongful suspension became due Gurdev Singh J. with whom I agreed directed the respondent State of Punjab to

'pay full salary and allowances admissible to the petitioner for the entire period between the dates of his first suspention and reinstatement i.e., from 16th May 1956 to 19th September 1963 after deducting the amount which the petitioner has already received as subsistence allowance for the period of his suspension prior to his dismissal.'

7. Reliance for this conclusion was sought from the Supreme Court authority in Laxman Vaikunthe's case (1962) 1 SCR 886=(AIR 1962 SC *) where a public servant reduced in rank on 11th August 1948 continued in service and retired on superannuation on 29th of November 1953. In a suit filed by the official against the government of Bombay on 2nd of august 1954, for a declaration that the order or reduction in rank passed on 11th august 1948 was void inoperative and ultra vires as also for recovery of arrears of salary allowance etc., it was held that reduction in rank was unlawful but a decree in respect of three years period from 2nd June 1951 that is to say three years plus tow months for notice prior to the date of institution of the suit was passed. The claim for arrears of salary prior to 2nd of June 1951 was held to be barred by limitation. The decision of the Supreme Court was relied upon by the Bench in Jaggia's case ILR (1966) 1 Punj 302 for the proposition that in a suit to recover arrears of salary the provisions of Article 102 of the Indian Limiation Act are applicable. It seems to me in retrospect that the observation made by the Bench in Jaggia's case ILR 1966 1 Punj 302 that if the suit is within three years the entire arrears of wages or salary could be recovered when a public servant remained under wrongful suspension or dismissal was not in accord with the releif granted by the Supreme Court in Laxman Vaikunthe's case (1962) 1 SCR 885=(AIR 1962 SC 8). No doubt their lordships of the supreme Court did not give any persons from this conclusion but of three years and two months passed by the Court that the claim if otherwise in time was to be restricted to this period.

8. In Laxman Vaikunthe's case, (1962) 1 SCR 886=(AIR 1962 SC 8) the Supreme court relied on a decision of the Federal Court in Punjab Province v. Tarachand 1947 FCR 89= (AIR 1947 FC 23) a decision to which reference was also made by Gurdev Singh j. in Jaggia's case ILR (1966) 1 Punj 302. Though the principal question in Tarachand's case 1947 SCR 89=(AIR 1947 FC 23) related to the right of a servant of the Crown for arrears of salary and the decision of that Court tha tushc a right was governed by Article 102 of the Limitation Act and that the word 'wages' was wide enough to include 'salary' Zafrulla Khan j., towards the end of the judgment made mention of the question of limitation which was raised by the counsel appearing for the contesting parties by the leave of the Court. A page 109 (of FCR)= (at p. 29 of AIR) of the report his Lordship observed:-

'It is obvious that if this was a case of breach of contract there 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. On this being pointed out counsel conceded that that was so and the point was not further pressed.'

The ratio decidendi of the Federal Court on the aspect of limitation clearly was that the right to recover wages or salary under Article 102 was a continuing right and each successive breach gave right to a fresh cause of action. The legal conclusion is that recovery could be made in respect of dues for a period of three years only before the institution of the suit or proceeding and such was the implicit assumption of their Lordships of the Supreme Court in Laxman Vaikunthe's case (1962) 1 SCR 886=(AIR 1962 SC 8) when the suit of the aggrieved official which was found to be in time was decreed only for a period of three years and two months.

9. As observed by the Supreme Court in State of Madhya Pradesh v. Syed Qamarali, (1967) 1 Ser LR 228 (SC) 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 in the words of Mr. Justice Das Gupta 'had therefore no legal existence and it was not necessary for he respondent to have the order set aside by a Court.' In the eye of law therefore 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. In short, the legal fiction itself regarding the non-existence of the order of dismissal gives rise to the other fiction about his continued accrual of wage or salary dues during the period of dismissal.

10. Mr. Abnasha Singh the learned counsel for the petitioner besides Jaggia's case. ILR (1966) 1 Punj 302 has placed reliance on two other Bench decisions of this Court. In F. A. No. 8-D of 1964 (Punj) decided by a Circuit Bench of S. B. Capoor and H. R. Khanna JJ. of this Court on 6th of September 1966 Maharaj an employee of the Military Secretary's Brach General Headquarters, Government of India was dismissed from service with effect from 20th of May 1947 and his suit for reinstatement in service though dismissed in the first instance was decreed by the lower appellate Court. The Government's appeal was dismissed and the application to file a letters patent appeal was further dismissed on 21st of September 1956. The employee was in consequence reinstated in November 1957. In a suit brought by the official for recovery of arrears a point was raised on behalf of the Government that he could not recover more than three years and two month's salary in consequence of the decision in Laxman Vaikunthe's case (1962) 1 SCR 886+(AIR 1962 SC 8). The Bench observed that in the Supreme court decision and the case before it the essential difference was that the plaintiff before the Supreme Court had not been dismissed or discharged fromservice but had been reverted from his officiating to his substantive post while Maharaj was actually dismissed from service. An observation was made that the pay and allowances of a Government servant who is dismissed or removed from service cease from the date of 'such dismissal or removal.' As provided in rule 52 of the Fundamental Rules, 'the pay and allowances of a Government servant who is dismissed or removed from service cease from the date of such dismissal or removal.'

According to the Bench the continuing breach to which reference was made in Tarachand's case 1947 FCR 89= (AIR 1947 FC 23). Ceased to be of any effective use in a case of removal or dismissal. As it would be necessary in such a case for the Government servant to have the order of dismissal or removal first set aside for suit for recovery of arrears the claim should not be restricted to a period of three years and two months. In the words of the Court:-

'It is however only be a legal fiction that the Government servant in such a case is deemed to have been in service all along but he hard fact is that in consequence of the order of his dismissal the plaintiff was barred by Fundamental Rule 52 from making any claim to salary until he had the order of dismissal set aside by the Court. It would be absurd and futile to suggest that in the long interval while the litigation remained pending the plaintiff should have periodically filed suits for this salary.'

The answer to this argument is that a legal fiction having been employed for saying that an order of dismissal is non est and non-existing in the eye of law if it is found to be wrongful and ultra vires all the consequences flowing from it should be logically pursued and followed and on eof such results is that the salary had accrued to the official who had been wrongfully dismissed. In a House of Lords case in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1952) AC 109 Lord Asquith said thus at page 132:-

'If you are bidden to treat an imaginary state of affairs asreal you must surely unless prohibited from doing so also imagine as real the consequences and incidents which if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it ....

The stature says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

11. No doubt Lord Asquith was speaking of the legal fiction in the construction of a stature but I do not see how the principle will not apply in the case of a legal fiction which has been employed by the highest court of the land in the case of a wrongful order of dismissal. In fact the sweep and amplitude of the legal fiction that the employee should be deemed to be in service all along will have the effect of preventing payment of arrears in respect of a period beyond three years when actually the employee was doing nothing for the Government. However ethical considerations of fairness and equity are hardly relevant or germane in determining the strict and technical rules of limitation. When there terminus a quo is the time when the wages accrue and by a legal fiction the entire period of removal of dismissal is deemed to be one spent in actual service it is legitimate to give full meaning and content to the words in the third column of Article 102 of the Indian Limitation Act.

12. The reason for distinguishing the case of Maharaj R. F. A. No. 8-D of 1964 D/-6-9-1966 (Punj) from that of the Supreme Court in vaikunthe's case 91962) 1 SCR 886=(AIR 1962 SC 8) adduced by the learned Bench does not appear to us to be tenable. There is neither any reason nor principle in differentiating a case of reversion or reduction in rank from that of dismissal when the claim for wages or salary is founded on the wrongful act of dismissal or reversion Moreover Tarachand's case 1947 FCR 89=(AIR 1947 FC 23) on which the decision of Vaikunthe's case (1962) 1 SCR 886=(AIR 1962 SC *) is based made it clear about the continuing cause of action which subsisted for the claimant during the period of wrongful dismissal.

13. Before referring to the third decision of this Court in favour of the petitioner it may be useful to make mention of a Bench decision of the Madras High Court in State of Madras v. Anantharaman, ILR (1963) Mad 1014=(AIR 1963 Mad 425) in which also Laxman Vaikunthe's case (1962) 1 SCR 886=(AIR 1962 SC8) and Tarachand's case 1947 FCR 89= (AIR 1947 FC 23) are discussed. In speaking of the fiction with regard to the period of wrongful dismissal the learned Chief Justice Ramchandra Ayyar observed at page 1018 (of ILR)=(at p. 426 of AIR)-

'The fiction that a person who had been illegally dismissed continues to be in service though one in law is not a statutory fiction to warrant the application of the rule stated above. Again the purpose of the fiction is merely to regard a public servant as if he had not been legally removed or dismissed. But that cannot necessarily justify the importation of another fiction namely that while he was in such fictitious service his salary also accrued every month. No principle of law warrants the second fiction.'

Relying also on Rule 52 of the fundamental Rules the Madras High Court held that in a case of dismissal of a public servant his right to salary will accrue only when the order of dismissal has been set aside either by the departmental authorities or by a civil Court and claim made within three years from the date of order setting aside the dismissal must be held to be in time under Article 102 of the Limitation Act With respect we consider that the judgment of the Madras High Court in Anantharaman's case ILR (1963) Mad 1014=(AIR 1963 Mad 425) following another Division Bench judgment of Jagadisan and Kailasam JJ, in Union of India v. R. Akbar Sheriff, AIR 1961 Mad 486 is subject to the same attack and criticism as the Circuit Bench decision of this Court in Maharaj's case R. F. A. No. 8-D 0f 1964 D// 6/9/1966 (Punj). In Sheriff's case AIR 1961 Mad 486 the learned Judges in holding that the claim if in time would cover the entire period of dismissal said at page 495 about the Federal Court decision in Tarachand's case 1947 FCR 89= (AIR 1947 FC 23) that 'it cannot be that the salary of each month fell due at the beginning of next month on the facts of the present case. So long as the dismissal order was in force against the plaintiff he ahd no right to claim salary.'

14. The decision in the case of Maharaj. R. F. A No. 8-D of 1964. D/-6-9-1966 (Punj) was followed by a Bench of D. K. Mahajan and Narula JJ. in (1967) 1 Ser LR 594 (Punj) in which reference was made to the Supreme court decision in Laxman Vaikunthe's case (1962) 1 SCR 886=(AIR 1962 SC 8). In that case the plaintiff was retired compulsorily from service by the Government of Pepsu on 6th of September 1948 and was reinstated by the order of the Government on 23rd of February 1951. He kept on agitating for the arrears of salary and a suit was filed for recovery on 23rd April, 1957. Though the suit for arrears of salary was barred under Article 102 of the Limitation Act having been filed more than three years after the date of reinstatement. It was observed at page 596 that:-

'So far as relief qua declaration is concerned we may safely say that if the suit was within limitation the plaintiff would be entitled to his salary from the 8th of September 1948 to the 23rd of February 1951 and for that purpose we need refer only to a Division Bench decision of this Court in Regular First Appeal No. 8 -D of 1964 (Punj) decided by S. B. Capoor and H. R. Khanna JJ.'

15. Thus the bench in the case of Ram Singh Brar 91967) 1 Ser LR 594 (Punj) affirmed unequivocally the principle which had been enunciated by s. B. Capoor and H. r. Khanna JJ. in the case of Maharaj R. F. A No. 8-D of 1964, D/-6-9-1966 (Punj).

16. The other point of view which we are inclined to accept being in accord with the decision of the Supreme Court in Laxman Vaikunthe's case (1962) 1 SCR 886=(AIR 1962 SC 8) was expounded by the Circuit Bench of this Court of Dulat and S. K. Kapur JJ. in ILR (1966) 2 Punj 907=(AIR 1966 Punj 500) Ram Nath an employee of the posts and Telegraph Department who remained under suspension from 9th April 1946 to 18th January 1952 was dismissed on 19th January 1952 in consequence of a departmental enquiry. A suit was filed by him on 5th March 1957 to challenge the order of dismissal and a substantial sum was claimed as arrears of his pay till 28th February 1957. Both the relief of declaration that the dismissal was illegal and ultra vires and a decree for Rs. 24,430.65 on account of arrears of salary from 19th January 1952 to 13th January 1960 were granted by the trial Court. Both parties appealed and on behalf of the Union of India the only plea raised was that the decree could only be passed for a period of three years and two months the rest of the claim being barred by time under Article 102 of the Limitation act. While discussing the case of ILR Mad 1014=(AIR 1963 Mad 425). Which had distinguised the Laxman Vaikunthe's case (1962) 1 SCR 886= (AIR 1962 Sc 8) on ground of applicability of Fundamental Rule 52 S. K. Kapur J., speaking for the Court observed that their Lordships of the Supreme court had clearly laid down that 'the period of limitation starts not from the date of declaration by the court but from the date it accrues due irrespective of such a declaration.' 'his being implicit from the fact that the claim in Laxman Vaikunthe's case (1962) 1 SCR 886- (AIR 1962 SC 8) which was otherwise in time was allowed only from 2nd June 1951 up till the date of the plaintiff's retirement from Government service. If the order of dismissal is illegal it must follow logically in the view of Kapur J., that Rule 52 of the Fundamental Rules, regarding which an argument was also raised before us by Mr. Abnasha Singh never in the eye of law came into operation. An order setting aside the dismissal cannot by its very nature alter the date of accrual of cause of action. With regard to the argument which is pegged to Fundamental Rule 52 it may be mentioned that a similar contention with regard to Fundamental Rule 54, which enables the State Government of Uttar Pradesh to fix the pay of a public servant where dismissal is set aside in a departmental appeal was raised before the Supreme Court and it was held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh AIR 1962 Sc 1334 that Rule 54 had no application in cases 'in which the dismissal of a public servant is declared invalid by a civil court and he is reinstated.' On a parity of reasoning it can acceptably be urged that the operation of Rule 52 of the Fundamental Rules will come to a stop and it will cease to have any force in the eye of law as observed by S. K. Kapur J.

17. We agree respectfully with the logic and reasoning of S. K. Kapur J. and find that there is no escape from the conclusion that the Supreme Court in Vaikunthe's case (1962) 1 SCR 886= (AIR 1962 SC 8) had restricted the claim which was otherwise within limitation to a period of three years from the date of institution of the suit or proceedings. With regard to Jaggia's case ILR (1966) 1 Opunj 302 it was rightly observed by Kapur J. that the point for decision only related to the question whether the suit was filed within time and the right to recover full pay and allowances for the period of employees' interim suspension accrued to him on the date when the order of dismissal was quashed by the competent Court.

18. Mr. Jawahar Lal Cupta the learned counsel for the respondent has relied on various other decisions in support of the result reached by Dulat and Kapur JJ. in Ram Nath's case ILR (1966) 2 Punj 907= (AIR 1966 Punj 500). In Union of India v. P. V. Jagannath, AIR 1968 Madh Pra 204 a Division Bench of T. C. Shrivastava and G. P. Singh JJ. while discussing the entire case law on the subject said that when an order of dismissal of a civil servant is declared void or inoperative the declaration of the Court does not make the order void but merely declares or exposes the already existing infirmity in the order. Such an order or dismissal being ineffective from its inception the civil servant continues in service in spite of the order and the cause of action for the salary accrues every month. In that case the entire claim was found to relate to a period prior to three years and was held to be barred by time under Article 102 of the limitation Act.

19. The Bench of Chief Justice Narasimham and R. K. Das J. of the Orissa High Court in Syam Sunder Misra v. Municipal Chairman, Parlakimedi, AIR 1964 Orissa 111, has taken a similar view. According to this decision an employee who fells 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. Chief Justice Narasimham in speaking for the Court, resolved the difficulty with which an aggrieved employee may be confronted by saying that proceedings for declaration and recovery of salary should be initiated by him simultaneously. Said he at page 112:-

'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, Code of Civil Procedure and Section 42 of the Specfic 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 226 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 his latter relief accrued only after the date of the judgment of this Court in that writ application.'

20. The Bombay High Court in State of Bombay v. Ganpat Dhondiba Swawant AIR 1966 Bom 228 in a judgment of K. K. Desai and Palekar JJ. observed that the Supreme Court in Vaikunthe's case (1962) 1 SCR 886= (AIR 1962 SC 8) had clearly held that the claim under Article 102 of the Limitation Act could be confined only to the period of three years from the date of institution of the suit in case of arrears of salary in respect of the period of wrongful dismissal. The State appeal with regard to the decree passed in favour of the employee for Rs. 1701-5-0 was held to be barred by the Law of Limitation on the ruling of the Supreme Court in Vaikunthe's case (1962) 1 SCR 886=(AIR 1962 SC 8).

20A. Mr. Abnasha Singh strongly relied on a Single Bench judgment of Dhavan J. in Hari Raj Singh v. Sanchalak Panchayat Raj. AIR 1968 All 246. What fell for decision by the Court in that case was the right of a civil servant on reinstatement to receive arrears of pay and allowances for the period of his absence from duty under Rule 54 of the Fundamental Rules. No doubt the learned Judge said in that case that the State Government is not permitted to reject the claim on the ground that it is time-barred after a Government servant has been reinstated it having been found that his dismissal was unlawful. The views of the Supreme Court have already been noticed on this aspect and it would be an exercise in futility to pursue this matter further about the true effect of Rule 54 of the Fundamental Rules or for that matter of Rule 52 on which reliance has been placed before us. There are some other Single and Division Bench judgments cited at the Bar such as Sudhir Kumar Das v. General Manager N. F. Railway Maligaon Pandu 1968 Ser LR 654 = (AIR 1968 Assam 8) decided by Chief Justice Nayudu and Goswanti J. of the Assam High Court but in view of the authoritative pronouncements oft he Supreme Court it is not necessary to subject them to any close analysis.

21. On a review of the authorities which to emphasise, make no distinction between civil suits and writ proceedings we are of the opinion that a public servant after his dismissal or removal has been declared to be unlawful can claim wages or salary only up to a period of three years and two months from the date when the cause of action accrued. The decisions of this Court in ILR (1966) 1 Punj 302; R. F. A No. 8-D of 1964 (Punj) and (1967) 1 Ser LR 594 (Punj) in so far as they take a contrary view have not in our opinion been correctly decided. Even in writ proceedings as was held in State of Madhya Pradesh v. Bhailal Bhai AIR 1964 SC 1006 the High Court has in exercise of its jurisdiction under Article 226 of the Constitution of India power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief but the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus when the relief prayed for raises a triable issue of limitation in which case it would be best to leave the party to seek his remedy by the ordinary mode of action in a civil court.

22. This answer to the reference does not settle completely the case of the petitioner as according to Mr. Abnasha Singh his learned counsel there is still the question of his seniority and other reliefs to be settled. We will, therefore, sent back this case to the learned Single Judge for passing appropriate orders. The question of costs does not arise at this stage.

D.K. Mahajan, J.

23. I agree.

R.S. Narula, J.

24. I also agree.

25. Order accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //