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Union of India Vs. Kewal Krishan Mittal - Court Judgment

LegalCrystal Citation
SubjectService
CourtDelhi High Court
Decided On
Case NumberCivil Miscellaneous Appeal Nos. 1305 and 1306 of 1983 and Letter Patent Appeal No. 26 of 1975
Judge
Reported inAIR1984Delhi38; 25(1984)DLT24; 1984RLR20
ActsCode of Civil Procedure (CPC), 1908 - Sections 151; Specific Relief Act, 1963 - Sections 34; Constitution of India - Article 311; Bar Council of India Rules - Rule 51; Fundamental Rules - Rule 54(3)
AppellantUnion of India
RespondentKewal Krishan Mittal
Advocates: P.P. Khurana and; Maehswar Dayal, Advs
Cases ReferredIn Province of Punjab vs. Pandit Tara Chand Air
Excerpt:
.....by the fundamental rule 54 of the rules.b) an application was filed for direction to the union of india to pay heirs of the deceased, all pay and allowances due to their father in terms of declaration made - the declaration meant that right to hold post was established and right to post meant right to pay - it was held that the refusal of the government to pay the heirs of the deceased arrears of salary was wholly unjustified -therefore, directions were issued for the payment of the same - - in the circumstances it clearly became final. this case is a good illustration. shri mittal was entitled to the post as well as to its pay. in devaki nandan prasad (supra) the supreme court said :we propose to leave no one in doubt that the slightest failure or deviation in the time..........allowance and his pay. the subordinate judge decreed the suit on 2nd december, 1967. the union of india appealed. the additional district judge by order dated 30th october, 1971 accepted the appeal and dismissed the suit. on a second appeal to this court h.l. anand j. reversed the lower appellate court and restored the decree of the trial court. he declared that the order of termination of the appellant's services was null and void and that that he continued to be in service throughout. he also gave a decree for rs. 2,358.72. (3) from the order of the learned single judge the union of india filed a letters patent appeal on 17th december, 1974. the appeal was admitted by a bench of this court on 2nd april, 1975. on 31st october, 1978 shri mittal died. this fact was brought to the notice.....
Judgment:

Avadh Behari, J.

(1) The single question in these proceedings is whether this court can issue a direction to the Union of India for the payment of arrears of salary to the Government servant after the dismissal order has been set aside.

(2) This is a tale of twenty years. The respondent late Shri Kewal Krishan Mittal, in 1963 brought a suit for declaration that his services had been wrongly terminated by the appellant, Union of India. At the relevant time he was holding the post of a Managing Officer-cum-Assistant Custodian at Delhi. On 14th June, 1960 his services were terminated. The principal ground of challenge was that Art. 311 of the Constitution was breached. He clamed a decree of Rs. 2,358.72 as the difference between the suspension allowance and his pay. The subordinate judge decreed the suit on 2nd December, 1967. The Union of India appealed. The Additional District Judge by order dated 30th October, 1971 accepted the appeal and dismissed the suit. On a second appeal to this court H.L. Anand J. reversed the lower appellate court and restored the decree of the trial court. He declared that the order of termination of the appellant's services was null and void and that that he continued to be in service throughout. He also gave a decree for Rs. 2,358.72.

(3) From the order of the learned single judge the Union of India filed a letters patent appeal on 17th December, 1974. The appeal was admitted by a bench of this court on 2nd April, 1975. On 31st October, 1978 Shri Mittal died. This fact was brought to the notice of counsel of the Union of India. But as no steps were taken to bring the legal representatives of the deceased respondent on record, the appeal abated. This was sought to apply for setting aside the abatement and condensation of delay. Time was granted. But no application for setting aside the abatement was made. As a result on 29th July, 1980 we held that the appeal had abated and as no steps for setting aside the abatement were taken the record be consigned to the record room. Because there was nothing else to do. Later on an application for setting aside the abatement was made. That application we dismissed on 5th August, 1980.

(4) On 11th July, 1983) the sons of late Shri Mittal made an application to this court under Section 151, Code of Civil Procedure praying for a direction to the Union of India to pay to them all the pay and allowances due to their late father in terms of the declaration made in this favor that he continued in service right up to 31st March, 1976 when Shri Mittal would have superannuated on attaining the age of 58 years. This application was opposed by the Union of India on a variety of grounds. In the reply the Union of India filed a statement before us showing that a sum of Rs. 1,31,136.65 was' due to late Shri Mittal for the period from 18th June, 1960 to 31st March, 1976. On this we directed the Government to deposit this amount in court. We were requested not to make payment to the legal representatives until the objections of the Union of India are heard and disposed of by us. We agreed to this suggestion. The Union of India has deposited in this court the entire amount of Rs. 1,31,136.65. Now we have heard Mr. P.P. Khurana, counsel for Union of India, at length.

(5) Three objections were raised before us. In the first place counsel contended that we had no jurisdiction to issue the direction to the Government to make payment of arrears of salary to the legal representatives of late Shri Mittal. He submitted that the legal representatives have started execution proceedings against the Union of India in the court of subordinate judge and the Government has paid the decretal amount of Rs. 2,358.72 in full satisfaction of the decree. He argued that the executing court was the complete court to execute the decree and that this court had become functus officio after the appeal had abated and the application for setting aside the abatement had been refused. In other words his main contention was that this court is not competent to order the Union of India to pay to Shri Mittal's heirs the arrears of salary due to the deceased. He referred us to Pappy vs. Chariyan 1966 K.L.T.388.

(6) We Were surprised to hear this objection, coming as it did from the Union of India. In our opinion we are fully competent to make the order we die The appeal was admitted by the Letters Patent Bench. The appeal had abated as within the prescribed period of limitation the heirs of the deceased respondent were not brought on the record. Abatement, it is true, is automatic. But there was more than this. Three applications (C.M. Nos. 949, 950 and 967 of 1980) were made to us in July 1980 to permit the appellant Union of India to bring the legal representatives of the deceased respondent on record and to condone the delay. These applications we dismissed on 6th August, 1980. We dealt with these applications judicially. We rejected the applications to set aside the abatement. We refused to condone the delay. There was no appeal against our order to the Supreme Court. In the circumstances it clearly became final. ,

(7) When an appellate court can make an order judicially which has the effect of finally disposing of the appeal, it can also issue necessary directions. (See Abdulla vs . Ganesh Das ). It is a fallacy to think, as has been contended before us, that with the dismissal of the three applications made to us the chapter came to a close and we were denuded of our jurisdiction which we once had. The effect of our refusal to set aside the abatement was that we confirmed the decree of the learned single judge., His decree .was in jeopardy when the appeal was brought by the Union of India to the Letters Patent Bench. When we dismissed the applications for setting aside the abatement the result was that his decree became final because the appeal had abated and the abatement was not set aside. This is the true import. of our judicial orders.

(8) The appeal was admitted when Mr. Mittal was alive. By bringing the appeal the decree was in peril. Mr. Mittal died on 31st October, 1978, The decree of the learned single judge attained finality when the appeal .abated and the application for setting aside the abatement was refused. If we had the jurisdiction to make those judicial orders we certainly have jurisdiction to issue necessary directions to the Union of India to pay to the sons of Mr. Mittal the arrears of salary due to their father. .

(9) The suit out of which the appeal arose was launched as long ago as 1963. If we do not issue the direction and let the executing court deal with the issue of payment the tale of twenty years will be completed and the dispute will probably continue for many more years. There will be prolongation and .multiplication of proceedings. This the court must avoid at all costs. Justice delayed is justice denied. This case is a graphic illustration. So we thought that the proper thing to do was to direct the Union of India to make payment of the arrears of salary to the heirs of Mr. Mittal. We think that we are competent to do so.

(10) This precise question arose before a Full Bench of-Punjab and Haryana High Court in Radha Ram vs. Municipal Committee, Barnala 198 3 Plr 21. The court held that the emoluments of the post area logical consequence of setting aside the termination. In such a situation, to insist upon the filing of a second suit for a relief which directly flows from the declaratory decree can hardly be warranted. A direction to pay arrears of salary 'only makes pointedly explicit what is plainly implicit in .the decree' 'It seems wholly wasteful to require a fresh spurt of litigation for the recovery of emoluments which necessarily flow from the quashing of the termination. order or the grant of the declaratory decree', the Full Bench held. The Full Bench followed the Supreme Court casein Krishan Murari Lal vs State of Punjab : (1977)ILLJ442SC (C,M. 10572 of 1978 in C.A.1298 and 1299 of 1969 decided on 16th October, 1978) wherein similar circumstances the Supreme Court implemented its judgment by asking the Union of India to :pay the arrears of salary to the petitioner as it was a logical consequence of the declaration that the petitioner would be entitled to back salary. A declaration that the plaintiff continues in service and the order of termination is. void and inoperative means that the termination order had no effect on his status. It was inoperative. Reinstatement order is in fact superfluous. In the eye of law he is deemed to be in service.

(11) Courts in India have this statutory power to make declarations under Section 34 of the Specific Relief Act, 1963. The section for declaration is today commonly used as a remedy in public law. Declaration is of extremely wide scope, and has become more and more prominent in recent years in administrative law. Lord Denning has been a stout champion of declaratory action and has judicially and extra-judicially opined that the remedy of declaration is preferable in many respects to certiorari. The landmark in this use of the declaration is the famous case of Dyson vs. Attorney General (1911) 1 K..B. 410. A declaration declares the legal position and in the case of a Government servant his status. But the remedy of declaratory judgment is non-coercive'. It is expected that the Government will obey the declaratory judgment and reinstate the Government servant and pay him all back salary. When by dismissing the application for setting aside the abatement the decree of the learned single judge was affirmed, it was the duty of the Government to pay to the heirs of the deceased respondent all the emoluments due to the deceased. From 1980 till 1983 nothing was done. Because the declaration is non- coercive, as we have said. So we had to issue a positive direction to the State to deposit in this court the arrears of salary due to deceased. We are glad to note that our order has been obeyed and the money has been deposited. If we do not issue the direction sought the matter will drag on in the executing court for many more years and this we must avoid. The thorny path of execution is not easy to tried in this country. At the end of 19th century the Privy Council said that the difficulties of a litigant in India begin after he has obtained the decrees. This case is a good illustration. Execution proceedings will result in further delay. The appellant will obtain the boon of delay which is so dear to debtors. If a judgment debtor 'is virtuously inclined there is nothing to prevent his paying what he owes into Court' '- Nagendra Nath vs . Suresh .

(12) The argument of the learned counsel for the Union of India overlooks the fact that a declaratory decree by its very nature cannot be put into execution. It declares the right of the parties and status as in this case. The declaration given by the learned single judge was that 'the order of the termination of the services of the appellant was null and void and that he continued to be in service throughout'. This declaration means just what it says. Shri Mittal was entitled to the post as well as to its pay. His dismissal was wrongful. A declaration means that a virtuously inclined judgment debtor must deposit in court what the plaintiff has become entitled to under the declaration. The declaration, it is true, cannot be executed. But it is expected that the Government will respect the decisions of the court nd will not drive a civil servant to expensive litigations which will lead to interminable delays. Tarak Nath Ghosh vs . State of Bihar : (1968)ILLJ388Pat .

(13) At one time it was held by the Privy Council in High Commissioner India vs . I.M. Lal that a civil servant was not entitled to cue the State for arrears of salary. The Supreme Court in State of Bihar vs . Abdul Majid : (1954)IILLJ678SC held that Government servant can sue for arrears of salary. In Province of Punjab vs. Pandit Tara Chand Air 1947 F.C. 23 the Federal Court had held that a public servant has a right to sue for arrears of pay. This view was accepted by the Supreme Court as against the view of the Privy Council. Now there is no doubt that if the order of termination in null and void and the court makes a declaration to that effect the Government will follow that declaration and pay to the servant his arrears of salary and restore him to the office from which he was dismissed. If the Government servant dies during the pendency of the proceedings, his legal heirs will be entitled to the payment of arrears of salary and other emoluments payable to the deceased. This has been clarified by the Supreme Court in State of Uttar Pradesh vs . Mohd. Sharif : (1982)IILLJ180SC .

(14) The Supreme Court in Krishan Murari and Mohd. Sharif (supra) has laid down in no uncertain terms that a civil servant is entitled to the arrears of salary as a logical consequence of the declaration in his favor, and if he dies during the proceedings his heirs will be entitled to arrears of pay. On the point of jurisdiction we are of the view that there was before us a validly instituted appeal brought against the judgment of the learned single judge which abated and which abatement we refused to set aside. If we had power to set aside the abatement or refuse it, we have the power to issue the direction also.

(15) In Devendra Pratap Narain vs . State of Uttar Pradesh : (1962)ILLJ266SC , the Supreme Court has said :

'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 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.'

(16) The logical consequence of the declaration is a right to emoluments and a right to the post. 'It will cause gross and substantial injustice to the employee concerned who having been found by a court of law would have been deemed to be in service, would still be deprived for no fault of his, of the arrears of his salary'. (Maimoona Khatun (supra) page 1979). This is no misapplication of the legal tool of declaration if to effectuate its purpose a direction to pay is given In fact the right to arrears of salary inheres in it. The Court only makes that explicit what is implicit in it. It is essentially a purposive approach that the courts adopt,

(17) A recent case in which the State of Bihar was directed by a mandamus of the Supreme Court to pay the arrears of pension is to be found in Devki Nandan Prasad Vs . State of Bihar : (1984)ILLJ237SC . In that case the State of Bihar did not pay pension to Devki Nandan though about 12 years ago his claim to pension had been upheld by the Supreme Court. The Supreme Court. The Supreme Court ordered the State to pay. They said :

'AS the officers of the State have harassed the petitioner which we feel is intentional, deliberate and motivated, thereforee, we are constrained to award exemplary costs quantified at Rs: 25,000.00 to be paid to the petitioner before July 31, 1983'.

(18) In our opinion by issuing the direction we are righting a wrong which was long over due.

(19) The constitutional theory of Art. 311 is based on the supposition that the declaratory decree of the court will be observed by the Government. In matters of public employment declaration of status is usually made. To the employees of the Government as of other statutory bodies the question of status e.g. the right to continue in office is of primary importance. If the government servant is wrongfully dismissed from the post, he can insist that still holds it. This flows from the mere fact that the declaratory judgment declares the rights of the parties. The office of the government servant is he protected specifically by Art. 311. This is why he can be removed from his post only by a valid exercise of the statutory power of dismissal. 'A limited statutory power of dismissal is one of the marks of a protected office or status' (Wade-Administrative Law 5th ed. p 528).

(20) A declaration is subject to the defect that it is not enforceable, in private law this is of course serious, but in public law the defect is Insignificant, as no administrative agency can afford to be so irresponsible as to ignore an averse decision of a competent court. The recent development of declaration in England and U.S. has shown that a declaratory judgment is an efficient and effective means of controlling the conduct of public authorities. That a declaratory judgment cannot be executed is of minimal importance, since public authorities would be even less likely to disregard it than private persons. (F.H. Lawson-Remedies of English Law p272)' It is not a coercive order, it is true. A mere declaration staling authoritatively the legal position of the parties will suffice. In matters of employment declaration is usually made where the right of a party to remain in his employment when he has been wrongfully dismissed is in question. In cases of statutory status declaration is usually granted if the purported dismissal is a nullity. Consequently the declaratory judgment has flourished as a general remedy in administrative law. Perhaps the outstanding modern example is the English case where it was successfully invoked by dock workers unlawfully removed from the register, when it was commended by that Court of Appeal in strongly favorable terms. Bernard v. National Dock Labour Board (1953) 2 Q.B. 18). (See also Vine v. National Dock Labour Board (1957) Ac 488. These cases have been followed in India by the Supreme Court.

(21) What is the effect of a declaration judgment? It seems to lack a sanction, for you cannot enforce a judicial statement of right by the machinery of the law. Whether to act in defiance of a declaration would amount to a contempt of court is a question which is increasingly coming before the courts in recent years in one form or another. That a disobedience to mandamus issued by the court can be visited with contempt is no longer in doubt. In Devaki Nandan Prasad (supra) the Supreme Court said : 'We propose to leave no one in doubt that the slightest failure or deviation in the time schedule in carrying out this mandamus will be unquestionably visited with contempt action'. The same is the case with cirtiorari.

(22) In Pyx Granite Co. Ltd. v. Minister of Housing (1960) Ac 260, Lord Goddord said, apparently with the concurrence of other peers) that declaration and certiorari were not mutually exclusive. In cases of wrongful dismissals in public or statutory employment the only remedy is not certiorari. The remedy of declaration is also available as was available to Shri Mittal in this case. (See Kanda v. Government of Malaya (1962) Ac 322 per Lord Denning). If in mandamus disobedience can be visited with contempt we fail to see why in the case of a declaratory judgment the disobedient party cannot be committed for contempt of court. No one should get away with the impression that declarations are unenforceable and the courts are powerless to enforce declarations. The courts will implement their declaratory judgments by issuing appropriate directions to public authorities.

(23) We repeatedly asked counsel to specify the court which can issue a direction to the government to pay. To this there was no clear-cut answer. He seemed to suggest that it could either be the executing court of the subordinate judge or the single judge of the second appeal. A declaratory decree is inexecutable, we have said. So there is nothing to execute by the executing court. As regards the single judge it is enough to say that if he has jurisdiction to issue direction we have similar jurisdiction in the matter. Because on the letters patent appeal being brought to us from his judgment we were invested with jurisdiction to vary, affirm or modify his order. Out jurisdiction is coterminus and co-extensive with his in this regard. If we could hear the appeal from his judgment if the appeal had not abated or if we had setting aside the abatement there seems to be no good reason to hold that we cannot issue the direction, howsoever pre-eminently just the direction may be. The competence to pass judicial orders is the test of jurisdiction. The Privy Council decision in Abdulla v. Ganesh Dass (supra) is a distinct authority for this proposition.

(24) One thing is quite clear. The Supreme Court has issued direction to the government for the implementation of its orders in like cases. To insist that the government servant should bring a separate suit to favor of the government servant means that he is entitled to the post and its pay. The declaration means that the right to hold the post is established. The right to post means the right to pay. Post and pay go together in a protected office, generally speaking.

(25) In all the circumstances it appears to us that the refusal of the government to pay to Mr. Mittal's heirs the arrears of salary is wholly unjustified. -We must thereforee in aid of justice issue the direction. 'Courts are the only defense of the liberty of the subject against departmental aggression' (Dyson vs.A-G (supra) per farewell L.J. at p. 424).

(26) Secondly, counsel argued that Mr. Mittal after he was dismissed from service joined the legal profession and practiced as an Advocate in this Court and was on this account not entitled to arrears of salary. He referred us to rule 51 of the Bar Council of India Rules. That rule is so far it is material says :-

RULE51 An advocate shall not be a full-time salaried, employee of any person government, firm, corporation or concern, so long as he continues to practice and shall, 'on taking up any such employment intimate the fact to the Bar Council on whose roll bids name appears, and shall thereupon cease to practice an Advocate as long as he continues in such employment'. This rule requires an Advocate not to accept a full-time salaried employment from any person or body or government of firm or corporation so long as he continues to practice the profession of law.

(27) The rule enacts a prohibition. It is a principle of professional ethics now embodied in a statutory rule. The violation of the rule makes the legal practitioner guilty of professional misconduct. This is all. But it does not prohibit a dismissed government servant who has obtained so laboriously a declaration in his favor from claiming his just dues of salary and arrears of pay. Moreover, Mr. Mittal is dead. No proceedings for professional misconduct were ever initiated during his life time. We arc not suggesting that he was guilty of misconduct. We are pointing out the futility of the argument. A dismissed employee has to survive. If he does not work he faces starvation. When Mr. Mittal was practicing he was not 'a full-time salaried employee of the government'. It was the Government's own case throughout that having been dismissed from service he was no longer in their employment until the court held that the dismissal was wrongful. It does not now lic in the mouth of the government to take a contrary stand when it comes to payment of arrears salary which Mr. Mittal after years of litigation had become entitled to. He did not live to reap the fruits of the litigation. We do not see why his heirs should not now reap that benefit.

(28) Thirdly, counsel referred us to Fundamental Rule 54 (3) (b). That rule says :-

'WHERE the reinstated government servant has secured employment during any period between the dismissal/removal/discharge/termination and reinstatement, the pay and allowances admissible to him after reinstatement for the intervening period shall be reduced by the emoluments earned by him, during such employment if such pay and allowances admissible to him or equal to or less than the emoluments earned by him, nothing shall be paid to him.'

On the strength of this rule counsel urgent that Mr. Mittal and now his heirs were liable to give an account of what Mr. Mittal had earned from the legal profession during the period from 18th June, 1960 when his services were terminated to 31st March, 1976 when he attained the age of superannuation. This argument is based on a misreading of the Fundamental Rule. That rule contemplates a situation where the reinstated government servant has secured employment 'between the period of dismissal and reinstatement'. It cannot be said by any stretch of imagination that Mr. Mittal had 'secured employment' between his dismissal and reinstatement. Practice of law is not 'employment' in the sense in which that expression is used in Rule 54. It will be an abuse of language to say that his professional engagement in the legal practice was an 'employment' under the State or another employer. Nor was Mr. Mittal a trustee liable to render accounts on any principle of justice and equity. We have no hesitation in rejecting this specious argument.

(29) Mr. Mittal was engaged in the legal profession. He was not in service during the period of dismissal and reinstatement. So the rules relied upon have no application. Profession is different from service. Profession has been defined as 'a calling requiring specialized knowledge and often long and intensive preparation including instruction in skills and methods as well as in the scientific, historical or scholarly principles underlying such skills and methods, maintaining by force of organisation or concerted opinion high standards of achievement and conduct, and committing its members to continued study and to a kind of work which has for its prime purpose the rendering of a public service'. Public service is the prime purpose of all the three learned professions-law, medicine and divinity. This is not true of employment whether under the State or a private master. Professions has a code of ethics. The members must confirm to the ethical standards of the profession. Rule 51 requires conformity. Law is a monopolistic profession. She is a jealous misress. She admits of no other employment.

(30) Defacto Mr. Mittal bad been thrown out of employment. De jure be continued to r-main in the service of the government throughout. To reconcile this reality with an assumed state of affairs is the main question in this litigation. Payment of salary to the dismissed employee is the only way to do justice to him.

(31) On this aspect our conclusion is that Mr. Mittal was engaged in the profession of liw and was not in 'full-salaried' employment of any one as contemplated by Rule 51. Nor in service as contemplated by Fundamental Rule 54.

(32) For these reasons we dismiss the objections of the Union of India and order that the legal representatives of the deceased Shri K..K. Mittal will be paid Rs. 1,31,136.65 (Rupees one lac thirty one thousand one hundred thirty six and paise sixty five only). The amount deposited in this court will be paid to them. The appellant will pay costs of these proceedings. Counsel fee Rs. 500.00 .


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