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Pahilaj Rai Vs. the Works Manager (Carriage) W. Rly. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 185 of 1981 and 591 of 1870
Judge
Reported in1971WLN530
AppellantPahilaj Rai
RespondentThe Works Manager (Carriage) W. Rly.
DispositionApplication dismissed
Cases ReferredCivil P.C. In P.J. Lartius v. Superintendent
Excerpt:
payment wages act, 1936 - section 15 and civil procedure code--order 2, rule 2--claim for arrears of salary not filed in a suit for declaration that removal was illegal--whether claim is time barred.;there have been consistent decisions of the federal court and the supreme court that a void order of dismissal from service has to be treated as if it never came into existence and it does not prevent the wages becoming due from month to month.;it was incumbent upon the petitioner to have claimed arrears of salary in his suit for declaration and that he having omitted to do so, his claim for arrears of salary upto the date of the institution of the suit was barred order 2, rule 2 c.p.c. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98..........of such period of service as fell within three years immediately preceding the institution of the suit. on appeal before the federal court the applicability of article 102 to a case of salary was disputed but the federal court over ruled the plea allowing the salary only for a period of three years preceding the date of the institution of the suit.8. in madhav laxaman vaikunthe v. state of mysore : [1962]1scr886 , the plaintiff filed a suit for a declaration that the order of reversion was void and also for arrears of salary. the supreme court following the case the punjab province v. tarachand a.i.r. 1947 f.c. 23, applied article 102 of the limitation and decreed salary only for a period of three years. these two cases of the highest court, however, did not settle the controversy which.....
Judgment:

L.N. Chhangani, J.

1. These two revision applications are directed against the judgment and decree of the District Judge, Ajmer, and arise out of a petition filed by Pahilaj Rai petitioner in S.B. Civil Revision No. 185/71 (Who shall hereinafter be called the 'petitioner') under Section 15 of the Payment of Wages Act (Act No. IV of 1936) hereinafter referred to as the Act) against the Works Manager (Carriage) now as Dy. C.M.E. (C&W;) Western Railway, Aimer (hereinafter referred to as the 'opposite party'). They shall be disposed of by one judgment.

2. The petitioner was working as a Head Clerk in Carriage & Works No. 26 Department, Western Railway, Ajmer. He was served with a charge sheet dated 12/15 November, 1955 charging him with an attempt to take away from the shop a pint of varnish, and after an inquiry, he was removed from service with effect from 9/10/56 On 9/4/62 the petitioner filed a suit in the court of Munsif, Ajmer District, Ajmer, for a declaration that the order of his removal from service was wrong, illegal and inoperative and that he continued in service and was entitled to all wages, allowances and other service benefits. The aforesaid suit was decreed on 15/3/66 and a decree in the following terms was passed in favour of the petitioner:

The order of removal of the plaintiff from the service dated 19/10/56 is declared illegal and inoperative. The plaintiff continues in the service of the defendant.

After obtaining a decree the applicant wrote to the General Manager, Western Railway, Bombay and endorsed a copy to the opposite party, requesting them to take him back on duty and to pay all his claims but there was no response. On 16/8/66 the petitioner moved an application under Section 15 of the Act for a direction requiring the opposite party to pay Rs. 33,776.0

3. The petition was opposed on the following grounds-

(1) That the petitioner ceased to remain a railway employee after 26-4-62 and that the relations of master and servant came to an end.

(2) The claim for the period upto the date of the institution of the suit is barred by the principle of Order 2 Rule 2, Civil P.C.

(3) That the application for arrears of salary having been filed after more than a year of the accrual of the salary, it was barred by limitation.

After recording evidence of the parties, the Authority under the Payment of Wages Act, issued direction for the payment to the petitioner of an amount of Rs. 33,776,02. The Authority did not allow the petitioner's claim for compensation. The opposite party filed an appeal before the District Judge, Ajmer. The District Judge, Ajmer held that the claim for arrears of salary upto the date of the suit was barred by limitation and he did not consider it proper to entertain the claim in the absence of a sufficient cause. He also held that the claim for arrears of salary for this period was also barred under the provisions of Order 2 Rule 2, Civil P.C. In other respects, he agreed with the decision of the Authority. He partly allowed the appeal and reduced the amount payable by the opposite party to Rs. 16,499.77.

4. Both the petitioner and the opposite-party have filed revisions.

5. I take up the petitioner's revision first.

6. It is common ground that the first proviso to Section 15 of the Act requires the application to be presented within twelve months from the date on which the deduction from the wages was made or from the date on which the payment of the wages was due to be made, as the case may be Disagreement between the parties is about the date of the commencement of the limitation. According to the opposite party, the order of dismissal which was eventually declared void, should not be treated to have any operation and the salary of the petitioner became due from month to month and the application having beer, filed more than a year after the accrual of the wages, it was barred by limitation According to the petitioner, the cause of action arose on 16-8-66 when the petitioner's suit was decreed. Reference was made to Rule 2042 of the Indian Railway Establishment Code, Volume II (hereinafter referred to as the Code) providing that 'the pay and allowances of a railway servant who is removed or dismissed from service cease from the date of the, order of removal or dismissal', and it was contended that till the order of dismissal was in operation, the petitioner could not have been paid his salary, that the order of dismissal was effective till it was set aside by the decree of the Court and that the arrears accrued due on the date the decree was passed. To ascertain the principles for determining as to when the payment of salary became due, it will be useful to notice cases of civil suits for arrears of salary in which Article 102 of the Limitation Act prescribing the date of accrual of wages as the starting point of limitation came up for interpretation.

7. In the Punjab Province v. Tarachand A.I.R. 1947 F.C. 23, the respondent, a Sub-Inspector of Police who was appointed by the Deputy Inspector General of Police Punjab, was dismissed by an order of the Superintendent of Police dated 19-3-38. He filed a suit claiming a declaration that the order of the Superintendent of police was void and had no effect and further claimed arrears of pay from 20-3-38 till 2-1-41 date on which he was normally due to retire from service. The trial court gave the respondent the declaration prayed for but dismissed his claim for arrears of pay. On appeal, a Division Bench of the Lahore High Court reversed the trial court's finding on the claim for arrears of salary but held that by virtue of Article 102 Schedule II, Limitation Act, the respondent was entitled to recover arrears of pay only in respect of such period of service as fell within three years immediately preceding the institution of the suit. On appeal before the Federal Court the applicability of Article 102 to a case of salary was disputed but the Federal Court over ruled the plea allowing the salary only for a period of three years preceding the date of the institution of the suit.

8. In Madhav Laxaman Vaikunthe v. State of Mysore : [1962]1SCR886 , the plaintiff filed a suit for a declaration that the order of reversion was void and also for arrears of salary. The Supreme Court following the case the Punjab Province v. Tarachand A.I.R. 1947 F.C. 23, applied Article 102 of the Limitation and decreed salary only for a period of three years. These two cases of the highest Court, however, did not settle the controversy which arose in the High Courts with reference to the provisions in the various civil service rules providing that the pay and allowance of a railway servant who is removed or dismissed from service ceased from the date of the order of removal or dismissal, the instances of which are Rule 52 of the Fundamental Rules, Rule 2042 of the Code and Rule 150 of the Bombay Civil Service Rules.

9. In State of Madras v. A.V. Asanthirman : (1963)IILLJ584Mad a Division Bench of the Madras High Court considered Rule 52 of the Fundamental Rules and observed:

By reason of Fundamental Rule 52, the right to salary ceased the moment an order for dismissal or removal was made. That is to say, the salary though payable prior to such dismissal at the beginning of next month, ceased to be so after the dismissal and it would not be open to the employee to recover the salary earned without having the order of dismissal set aside.

The Bench held that the claim by a public servant, whose dismissal has been set aside for arrears of his pay falls within Article 102 of Limitation Act and the right to recover arrears of salary accrues to him only when the order of dismissal is set aside either in departmental appeal or by a Civil Court.

10. A contrary view was, however, taken by the Punjab High Court in Union of India v. Ram Nath where the law was laid down in the following terms-

If the dismissal or removal is illegal, logically it must follow that Rule 62 never, in the eyes of law, came into operation In deciding the legality or illegality of such an order, the Court merely declares whether or not any order deserving the attention of law was passed. Such an order cannot, by its very nature, alter the date of accrual of cause of action. The function of Courts is to interpret law and decide dispute about existing legal rights The conception of a judicial decision being one declaratory of pre-existing legal rights, finds expression in the law reports of many countries In a case like the present, the right of the employee to get his wages, exists independently of the decisions by Courts on the ground that law will take no notice of an illegal order. The Courts in holding such an order illegal merely declare that it was never passed. To subscribe to the other view would mean that, a servant, who has been illegally dismissed, cannot maintain an action for a declaration that his removal is illegal, and for arrears of pay till the date of dismissal. That would be so because his cause of action for arrears would accrue after the declaration.

11. A Bench of the Gujarat High Court, agreed with the view taken by the Madras High Court and differed from that of the Punjab High Court Vide Trilochan Girdharilal Patel v. State of Gujarat and Anr. 1969 Guj. Lab. L.J. 305.

12. The question again came up before the Supreme Court in Jai Chand Sawhney v. Union of India 1969 S.L.R. 879. Differing from the view of the Madras High Court the Supreme Court observed as follows:

When the order of dismissal or removal is set aside by the Court on the ground of failure to afford the constitutional protection the order is declared invalid ab initio, i.e. as if it in law never existed, and the public servant concerned was unlawfully prevented from rendering service. If that be the correct view, salary due to the public servant concerned must be deemed to have accrued month after month because he had been wrongfully prevented from rendering service. The period of limitation under Article 102 commences to run when the wages 'accrue due' and wages accrue due when in law the servant becomes entitled to wages. Rule 2042 of the Railway Establishment Code merely provides that 'the pay and allowances of a Railway servant who is removed or dismissed from service ceased from the date of the order of removal or dismissal'. That rule does not operate to make the wages accrue due on the date of the institution of the suit. If the order of dismissal is set aside the public servant is deemed to be in service throughout the period during which the order of dismissal remained operative, and his right, to sue for salary arises at the end of every month in which he was unlawfully prevented from earning his salary which he could, but for the illegal order of dismissal have earned.

12. This Court also expressed the same view in State of Rajasthan v. Ratan Lal and Anr. 1969 W.L.N. 339 and The Divisional Personnel Officer. Northern Railway, Jodhpur v. Regional Labour Commissioner (Central) Jabalpur 1965 R.L.W. 210.

13. The counsel for the petitioner, however, referred to a judgment of the Supreme Court in Divisional Superintendent, Allahabad v. Puskhar Datt Sharma 1955 A.W.R. 274 while pressing for the adoption of a contrary view. The respondent in that case was dismissed on 23rd December, 1947 and he challenged the validity of his dismissal by civil suit, which was decreed on 31st March, 1951, as a result of which it was declared that his dismissal was illegal. On appeal by the Divisional Superintendent the said decree was set aside and the respondent's suit was dismissed on 14th August, 1952. The respondent Pushkar Datt Sharma went in second appeal to the Allahabad High Court and he succeeded with the result that the decree passed by the trial Court in his favour was restored on 9th January, 1962. Against this decree, the appellant preferred a special appeal before a Division Bench of the said High Court. This appeal was ultimately dismissed on September 1964. The respondent made an application under the Act on 7th July, 1962 and he claimed wages due to him from 24th December, 1947 to 6th July, 1962. He also moved an application to the Authority to condone the delay made by him in presenting the said application and since the Authority was satisfied that the respondent had sufficient cause for not making the application within the period prescribed by Section 13(2) of the Act, the delay was condoned and the application was entertained and allowed on merits. The appellant went in appeal before the Additional District Judge at Allahabad and contended that the Authority was not justified in condoning the delay made by the respondent in moving it under Section 15 of the Act. The appellate Court rejected the contention with the result that the Order passed by the Authority was confirmed. The appellant then moved the Allahabad High Court and raised the same contention. The High Court took the view that there was no justification for interfering with the decision of the Authority that a case had been made out to its satisfaction for condoning the delay, and so, the revision application filed by the appellant was dismissed. The decision of the High Court was challenged before the Supreme Court by a special appeal Civil Appeal No. 940 of 1964 decided on 10.12.14 by S.C.. Rejecting the special appeal, the Supreme Court observed,

It seems to us that it is impossible to accede to the learned Attorney General's argument that this Court should interfere with the order passed by the Authority under the second proviso to Section 15(2) of the Act. It appears that when special leave was granted to the appellant, it was not known or notice that the special appeal preferred by the appellant against the decision of the second appeal had already been dismissed by the High Court. Special leave was granted to the appellant apparently on the assumption that the dispute between the parties in respect of the dismissal of the respondent was still pending in the special appeal before the High Court and it was thought that until the said dispute was finally decided, it would be inappropriate to allow the respondent to withdraw the whole of the amount decreed in his favour by the Authority, otherwise, it is difficult to see how the appellant could have successfully moved this Court for special leave in a matter of this kind.

The Supreme Court made further observations which have been relied upon by the counsel for the petitioner-

It may be that a claim for payment of wages has to be made within six months from the date when the wages fell due and in that sense, an application under Section 15(2) must be made within six months of the accrual of the cause action from month to month, but in the present case, when the Appellate Court dismissed the respondent's suit on August 14, 1952, it was not open to the respondent to apply under Section 15(2), because the appellate court had held that his dismissal was justified and valid. It was only when the second appeal was allowed on January 9, 1962, that the respondent had a cause of action. It is very unfortunate that the second appeal was pending in the High Court for nearly tea years, but that cannot prejudicially affect the respondent's case when he moved the authority under Section 15(2) of the Act.

The learned Counsel for the petitioner emphasised the expression. 'It was only when the second appeal was allowed on January 9, 1982, that the respondent had a cause of action' and contended that the Supreme Court laid down that in a case of claim of arrears for salary, the cause of action arose when the dismissal was finally set aside in second appeal. The counsel suggested that this decision of a Bench of Five Judges should be preferred to the decision of the Judge in Jai Chand Sawhney v. Union of India 1969 S.L.R. 879 Alternatively, it was argued that at any rate, in relation to application under Section 15 of the Act, Pushkar Datt's case Civil Appeal No. 940 of 1964 decided on 10.12.14 by S.C. should be treated as a binding authority.

14. I have given the matter my careful consideration and find it difficult to accept the contentions of the petitioner. There have been consistent decisions of the Federal Court and the supreme Court that a void order of dismissal from service has to be treated as if it never came into existence and it does not prevent the wages becoming due from month to month. In Pushkar Datt's case Civil Appeal No. 940 of 1964 decided on 10.12.14 by S.C. the Supreme Court had no occasion to directly discuss this aspect of the case. In that case the Authority under the Act and the appellate Court allowed the application arid directed the payment of wages after condoning the delay and applied the second proviso to Section 15 of the Act. The High Court declined to interfere with the discretion exercised by the two authorities. The matter was then taken to the Supreme Court by a special appeal. The Supreme Court pointed out the circumstances under which they initially entertained the appeal but subsequently found it difficult to permit a controversy of that type to be raised in a special appeal. The Supreme Court approved of the dictions of the Authority and the order passed in appeal and revision and thus substantially held that there was sufficient cause for condoning the delay. The observations of the Supreme Court must be viewed in this over riding context and should not be taken in isolation to lay down a principle inconsistent with those laid down in other cases, Even in this case, the Supreme Court did observe:

It may be that a claim for payment of wages has to be made within six months from the date when the wages fell due and in that sense, an application under Section 15(2) must be made within six months of the accrual of the cause of action from month to month.

These observations cannot be lightly ignored and they are in keeping with the trend of the other decisions of the Supreme Court. Further, in that case the Supreme Court emphasised the dismissal of the suit by the first appellate Court which had the effect of extinguishing cause of action for claims or arrears of salary under forum. There are indeed cases laying down that where a cause of action, is through court or otherwise, satisfied or discharged, limitation stops running in regard to such cause of action, on the fundamental principle that limitation always implies an existing cause of action, and where there is no cause of action, there can be no limitation. In such cases, where the satisfaction or the discharge of the cause of action is nullified by subsequent events, the plaintiff is entitled to a fresh cause of action, consequent on such notification, and a fresh period of limitation in respect of such cause of action. It may be easily inferred that the Supreme Court's emphasis on the dismissal of the suit by the first appellate Court indicates that the opulence Court had the above principle in mind when it stated that 'It was only when the second appeal was allowed on January 9, 1962 that the respondent had a cause of action.' Having regard to all these considerations, I am not inclined to hold that the Supreme Court in Pushkardatt's case (k) intended to lay down that in a claim for arrears of salary the cause of action arises only after a dismissal is set aside.

15. The counsel for the respondent also referred to Satya Narain Lal v. Divisional Superintendent, Northern Railway, Allahabad and Anr. 1970 L.L.J. 381 Ramkishore Sharma v. Additional District Judge, Saharnpur and Ors. 1969 L.L.J. 353 and Rajkumar Manohar Lal v. Union of India A.I.R. 1969 All. 472 In all these cases, it was held that limitation for claiming wagee started from the date of the decree setting aside the order of dismissal, and arrears of salary were allowed even in respect of the period prior to the institution of the suit. All these cases are based upon Pushkar Datt's case Civil Appeal No. 940 of 1964 decided on 10.12.14 by S.C. I have noticed in detail Pushkar Datt's case and clarified the precise implications of the decision in that case. With great respect, I do not concur in the interpretation of the decision in Pushkar Datt's case adopted in these cases.

16. The contention of the petitioner, therefore, that his arrears for the period preceding the suit became due only when the civil court passed a decree cannot be accepted and the application for arrears for that period was clearly barred by limitation The Authority, however, allowed wages for this period but the appellate court noticing that the petitioner even though dismissed in the year 1956 filed a suit in the year 1962 and as such, had no sufficient cause within the meaning of proviso (2) to Section 15 of the Act for not moving the application. Having considered the circumstances, I am not inclined to interfere with the discretion exercised by the District Judge.

17. The District Judge also held that it was incumbent upon the petitioner to have claimed arrears of salary in his suit for declaration and that he having omitted to do so, his claim for arrears of salary upto the date of the institution of the suit was barred under Order 2 Rule 2 C.P.C. The counsel for the petitioner tried to meet this contention again with reference to the decision of the Supreme Court in Pushkar Datt's case Civil Appeal No. 940 of 1964 decided on 10.12.14 by S.C. In Pushkardatt's case, however, the controversy in connection with Order 2 Rule 2 C.P.C was not raised at any sage and the Supreme Court had no occasion to finally decide whether Order 2 Rule 2 Civil P.C. could be attracted in a case of this nature. Similarly, in the three cases, Satya Narayan Lal v. Divisional Superintendent, Northern Railway Allahabad and Anr. 1970 L.L.J. 381. Ram Kishore Sharma v. Additional District Judge, Saharanpur and Anr. 1969 L.L.J. 353, and Raj Kumar Manohar Lal v. Union of India A.I.R. 1969 All. 472 there is no reference to Order 2 Rule 2 Civil P.C. In P.J. Lartius v. Superintendent, Printing and Stationery, U.P. Allahabad 1965 All. L.J. 292 it was held that a claim for arrears of salary even by an application under Section 15 of the Act in respect of the period before the commencement of the suit is barred under the provisions of Order 2 Rule 2 C.P.C. There are also cases where in subsequent suit a claim for arrears of salary for a period prior to the commencement of the earlier suit has been held barred.

18. As the petitioner's prayer has been disallowed on the question of limitation, I need not express any him opinion on this controversy.

19. The petitioner's revision application thus fails and is rejected.

20. In revision No. 591/70 the opposite party contended in the first instance that the petitioner became 55 years old on 27-4-62 and that he had no right to be retained in service after that date and as such, he ceased to be an employee, The learned District Judge discussed Rule 56(b)(1) Chapter IX of the Fundamental Rules and observed as follows-

The rule no doubt gives the Government a right to retire a ministerial servant at the age of 55 years but that can be done only on the ground of inefficiency. Consequently, before a Ministerial Servant is retired at 55 years age, it is incumbent upon the Government to give him an opportunity to say what he has to say against his pre-mature retirement. The defendant took no decision in the case of the respondent.

Further, 'on account of the dismissal, he has been denied the valuable right of the decision of the opposite party in his favour for his continuance in service.' To the above observations of the District Judge, it may be added that even though the petitioner became 55 years old during the pendency of the suit the opposite party did not bring this fact to the notice of the civil court and suffered a decree to be passed that the petitioner continued in service. This decree was passed on 15-3-66. The decision of the appellate court on this point is correct and calls for no interference.

21. Today when the case was put up for dictation of judgment a petition on behalf of Shri R.C. Bhargava dated 25-9-71 was presented in Court by Shri A.K. Bhandari. In that application it was stated-

That both the courts below in ignoring an important fact that the non-petitioner, as alleged by him in his plaint, was earning Rs. 420.38p. On 31-7-66 as per Section 1(6) of Payment of Wages Act, the application of the non-petitioner is not maintainable and the Payment of Wages Authority has no jurisdiction to entertain such application, as he was earning more than Rs. 400 00 as prescribed in that section, on the date of said application.

This application is of an unusual nature. It seeks to raise a controversy of facts for the first time even after the arguments were over in this Court before the dictation of the judgment. The opposite party could not have or had notice of this application. The application deserves no consideration and is rejected.

22. Lastly, on the question of limitation, the Authority and the appellate court have concurrently held that there was sufficient cause for the petitioner's omission to make an application in respect of the salary for the period after the institution of his earlier suit. In the light of the observations made by the Supreme Court in Pushkar Datt's case Civil Appeal No. 940 of 1964 decided on 10.12.14 by S.C. I do not see any adequate ground for interfering with the view taken by the District Judge.

23. The opposite party's revision application is also without merits.

24. In the result, both the revision applications are dismissed. There will be no order as to costs.


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