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Union of India (Uoi) Vs. T.L. Dakshinamurthy - Court Judgment

LegalCrystal Citation
SubjectService;Limitation
CourtChennai High Court
Decided On
Case NumberAppeal No. 506 at 1969
Judge
Reported inAIR1975Mad337; (1975)1MLJ269
ActsLimitation Act, 1963 - Schedule - Article 7; Contract Act, 1872 - Sections 2
AppellantUnion of India (Uoi)
RespondentT.L. Dakshinamurthy
Appellant AdvocateK. Venkateswara Rao, Adv.
Respondent AdvocateM. Anantharama Mudaliar and ;P. Mohan, Advs.
DispositionAppeal dismissed
Cases Referred(vide Union of India v. Kanniah
Excerpt:
.....thinks he has a claim deserving to be examined is free to bring it before the proper court and have the judgment of the court on its merits, without which judgment it cannot be certainly known whether the claim is well founded or not: not a very safe one at best, is clearly inapplicable here. 10. thus interpreted, if the suit, has been filed well within three years from the date of judgment of the letters patent appeal by the learned judges of the division bench, it follows that under art. 7 of the limitation act the suit filed on 4-9-1964 is well within time. in this view, therefore, the suit laid on 4-9-1964 is well within time, though the arrears of salary claimed relates to a period commencing from 8-7-1953 to 28-8-1959. as the only question, which was raised in the appeal is..........of the amounts claimed under the decree, since the administration had by then filed a letters patent appeal against the judgment of basheer ahmed sayeed, j. the result of the same may be awaited. it is common ground that the plaintiff joined duty on 22-8-1959, the plaintiff, however, was reiterating his demands regarding the settlement of his arrears of salary as per the decree, as apparently, he was not satisfied with the bare reference to it in ex b. 2. in answer to such representations made by the plaintiff, the defendant wrote under ex. a. 2, dated 27-6-1960 as follows--'the letters patent appeal preferred by the administration is pending in the high court, madras, and you may await the result of appeal for the final decision regarding fixation of pay, seniority, claim for.....
Judgment:

Ramaprasada Rao, J.

1. The Union of India owning the Southern Railway and represented by its General Manager, who was the unsuccessful defendant in O. S. No. 5079 of 1967 on the file of the City Civil Court Madras, is the appellant. The plaintiff, a permanent employee in the Southern Railway, was placed under suspension on and from 8-3-1950 on certain charges levelled against him. Ultimately, under Ex. B 1, dated 15-6-1930 the plaintiff's services were terminated with effect from the afternoon of 22-6-1950. He was given a month's salary in lieu of notice in accordance with the terms and conditions of the service. The plaintiff took up the matter in appeal before the Railway Board, but was not successful. Thereafter on 7-7-1953, he filed a suit O. S. No. 335 of 1956 seeking for a declaration that the order dated 15-6-1950 and contained in Ex. B1 was illegal and for setting aside the order and for arrears of salary as also for future salary. Under Ex B 27, the trial Judge dismissed the action. The plaintiff took up the matter in appeal C. C. C. A. No. 93 of 1957. Basheer Ahmed Sayeed, J. allowed the appeal and decreed the suit. It is relevant to extract the decree in the City Civil Court appeal. It has been exhibited in the trial court as Ex. A. 1. The relevant portion of the decree runs as follows:

'1. That the order of the lower Court be and hereby is set aside.

2. That the order dated 15-6-1950 of the General Manager terminating the sendees of the appellant (petitioner) herein is illegal, improper, void and inoperative and that the appellant petitioner be reinstated in his original post in the Railway Administration.

3. That the respondent do pay to the appellant-petitioner herein a sum of Rs. 118 and 94 naya paise being half of salary and dearness allowance payable to the petitioner from 8-5-1950 to 22-6-1950 and Rs. 5069 and 56 np. being full salary due from 22-6-1950 to 7-7-1953 the date of plaint and also future salary at the same rate, and

4. that the respondent-defendant do pay to the appellant-plaintiff his costs of the suit O. S. 335 of 1958 on the file of the CityCivil Court, Madras, which shall be taxed and ascertained by the said Court.

5. that the respondent-defendant do pay to the appellant-petitioner -- a sum of Rs. 989 and 3 np. as and for his costs of this appeal.'

It is seen from Clause 3 of the decree, that the plaintiff was not only given a decree for half pay and allowance during the period when he was under suspension, but he was also given full salary from 22-6-1950 to 7-7-1953, the date of suit, and also 'future salary at the same rate'. Pursuant to the judgment of this Court, the plaintiff was reinstated in service as is seen from Ex B-2 dated 22-8-1959. It was made clear even in Ex. B 2, that, as regards the payment of the amounts claimed under the decree, since the administration had by then filed a Letters Patent appeal against the judgment of Basheer Ahmed Sayeed, J. the result of the same may be awaited. It is common ground that the plaintiff joined duty on 22-8-1959, The plaintiff, however, was reiterating his demands regarding the settlement of his arrears of salary as per the decree, as apparently, he was not satisfied with the bare reference to it in Ex B. 2. In answer to such representations made by the plaintiff, the defendant wrote under Ex. A. 2, dated 27-6-1960 as follows--

'The Letters Patent appeal preferred by the administration is pending in the High Court, Madras, and you may await the result of appeal for the final decision regarding fixation of pay, seniority, claim for arrears, etc. The position and pay offered now are purely provisional and subject to review on the disposal of the Letters Patent appeal.' The result was that the plaintiff did not pursue his claim for arrears of salary either by making further representations to the defendants-appellants nor did he take any steps to file a suit for its recovery in a manner known to law. He waited till the judgment in the Letters Patent appeal was pronounced. On 29-9-1961 under Ex. A-3 a Bench of this court disposed of the Letters Patent appeal. They dismissed the same and observed in the judgment as follows:--

'One small correction with regard to the decree passed by the learned Judge is. however, necessary. Paragraph 3 of the decree declared that the appellant should pay certain sums to the respondent and 'also future salary at the same rate'. Future salary will be governed by the service conditions. We are of opinion that there is no necessity for that clause in the decree, and we accordingly direct that the phrase 'and also future salary at the same rate' in paragraph 3 of the decree in C. C. C. A. 93 of 1957 be deleted.'

In other respects, the decision of the learned Appellate Judge in C. C. C. A. 98 of 1957 was confirmed. Subsequent to the disposal of the Letters Patent appeal, the defendant settled all claims of the plaintiff including the salary after refixation upto 7-7-1953, but did not pay the salary from 8-7-1853. The plaintiff, therefore, had to come to court for relief. The present action springs from the above naration of events.

2. In the present suit, the plaintiff claimed a sum of Rs. 15300.65 for arrears of salary upto 27-8-1959. Obviously this is so made because the plaintiff joined duty on 27-8-1950. The plaintiff also claimed interest and sought for a decree, basing his cause of action on 22-6-1950, when his services were unlawfully terminated, on 25-2-1959. when Basheer Ahmed Sayeed, J., allowed the appeal, holding the order of termination of service as void, op 27-6-1980 when under Ex. A-2, the defendant wanted the plaintiff to await the result of the Letters Patent appeal by then filed by the Union of India, and on 29-8-1961, when the Letters Patent appeal was disposed of. The defence to the action was mainly based on the bar of the claim under the statute of limitations. According to the defendant, there was no acknowledgment of any liability to pay the arrears of salary from 8-7-1953 at any time and that Ext, A-2 does not project any such acknowledgment as averred by the plaintiff and that, therefore, the claim is barred by limitation. The defendant denied liability to pay the interest and denied the express allegation made that the defendant practised fraud on the plaintiff. As we said the main plea is one of limitation. The learned Judge framed the following issues:--

'1- Is the plaintiff entitled to any arrears of salary and if so, for what period and what is the correct amount ?

2. Is the Union of India liable to pay Rs. 7,500/- for the loss of emoluments from the date of reinstatement, viz., 28-8-1959?

3. Is the plaintiff entitled to interest on the arrears of salary withheld by the defendant ?

4. Is the plaintiff entitled to fixation of salary according to the position and seniority which he would have occupied had he been in service ?

5. Is the claim barred by limitation ?

6. To what relief is the plaintiff entitled ?'

On Issue No. 5, he held that the claim was not barred by limitation, as the action was filed within three years from the date of the judgment in L P. A. No. 128 of 1959- On the other issues, he found that the plaintiff was entitled to the salary as also interest at 6 per cent, at any rate from the date of judgment of the Letters Patent Appeal till the amount is realised and decreed the suit with proportionate costs.

3. The learned Judge, however, disallowed the sum of Rs. 7,500/- claimed by the plaintiff towards the loss of emoluments from the date of reinstatement. It is as against this judgment of the trial court that the Union of India has come up to this court in appeal.

4. The sole question urged before me is that the suit originally filed in this court as a pauper in 1964 is barred by limitation, in that the claim made therein for salary for the period 8-7-1953 to 28-8-1959 is beyond three years from the date when such salary accrued due. On the other hand, it is stated that a fresh cause of action was created under Ext. A-2 and that the respondent was restrained from instituting an action on the representations made by the defendant under Ext. A-2 and that, therefore, the date of judgment in the Letters Patent Appeal, namely, 29-9-1961, gave a fresh cause of action to the suit and thus calculated the suit filed on 4-9-1964 was in time.

5. Mr. Venkateswara Rao. learned counsel for the appellant, relied on certain observations of the Supreme Court in Jaichand Sawhney v. Union of India, 1970-2 SCJ 288 in support of his contention that the suit is barred by time. In that case there was no demand for reinstatement by the aggrieved person after the Civil Court directed such reinstatement after setting aside the order of dismissal. It appears, however, from the recitals in the judgment that he filed straightway a suit for setting aside the order of dismissal on the ground that the principles of natural justice were not borne in mind, as he was not given an opportunity to show cause against the action proposed. The plaintiff also claimed arrears of salary for a considerable period of time, which was well over three years beyond the date of filing of the suit. In fact he was removed from service in October 1959, and he filed the suit long thereafter. The contention raised by the Union of India in that suit was that the period of limitation under Article 102 of the Limitation Act. 1908. commenced to run when the wages accrued due and the wages accrued due when in law the servant became entitled to the wages and as the salary was payable month after month, the plaintiff therein was not entitled to the salary as claimed because it was beyond three years. There, the learned Judges did not have occasion to consider the impact of a request by an aggrieved party to the railways seeking for the payment of arrears of salary in response to which the railways replied that the person can wait till a certain event happens and in this case till the Letters Patent Appeal is disposed of. This particular feature whichis present in the instant case, makes the ratio in 1970-2 SCJ 288 distinguishable. As a matter of fact. Ismail, J., had occasion to consider the content of the ratio in the above case and he observed that, having regard to the facts which he was noticing the decision of the Supreme Court did not apply, as if it is of universal application, as he was of the view that a particular exhibit noticed by him in the suit decided upon constituted an acknowledgment of liability on the part of the railways to pay the arrears of salary ranging over a period commencing from 21-3-1957 to 7-2-1962. He also observed that the Supreme Court had no occasion to deal with the question of acknowledgment and in that context also distinguished. He expressed his dissent (vide Union of India v. Kanniah, : (1974)1MLJ208 .

6. It has, therefore, become necessary for us to consider whether there are certain peculiar or singular features in this case, which would take the case out of the bare rule laid by the Supreme Court in the above case. We have already referred to the fact that the respondent joined duty or was allowed to join duty on 28-8-1959 pursuant to the orders of Basheer Ahmed Sayeed, J., in C. C. C A. No. 93 of 1957. Soon thereafter, the respondent made frantic representations regarding the arrears of pay payable to him. This was obviously to further the decree, which he obtained from the learned Judge as reflected in Clause 3 of the decree already extracted. The learned Judge said that the plaintiff would also be entitled to future salary at the same rate. When the order of reinstatement was passed, the respondent was informed that regarding the payment of the amounts claimed under the decree, since the administration has filed the Letters Patent appeal, the result of the same may be awaited. The respondent was not satisfied apparently with this manner of reply and he pursued the matter again by making representations on 9-9-1959, 27-10-1959 and 15-12-1959. We are able to perceive the content of such representations though they have not been exhibited in the instant case. Apparently, the respondent wanted relief and particularly a settlement of accounts in relation to the arrears of salary by then due and payable by the railways in accordance with the judgment and decree of this court. In answer to the specific request, the respondent was asked to await the result of the Letters Patent Appeal for the final decision regarding the claim for arrears of salary, allowance etc. The railways also made it clear that they would review the position on the disposal of the Letters Patent Appeal. On the strength of this, it is said that a fresh cause of action has arisen, which wouldentitle the plaintiff to lav his cause of action on the recitals in Ext. A-2, and claim the arrears payable to him during the period 8-7-1953 to 28-8-1959, The learned trial Judge accepted the contention, but without much of discussion that Ext. A-2 would save the bar of limitation. He would not agree with the contention of the respondent that as a sum of Rupees 5188.50 was paid on 9-7-1963. by the administration towards the decree in O. S. No. 335 of 1956, there was a payment towards the debt due within the meaning of Section 19 of the Limitation Act. 1963, which would save the bar of limitation. It is not urged before us that such a part payment made on 9-7-1963 would constitute an acknowledgment or would avoid the bar of limitation. In fact, we are of the view that such a contention is not open to the respondent for the reason that Section 19 of the Limitation Act deals with the effect of payment on account of debt or of interest on a legacy made before the expiration of the prescribed period by the person liable to pay the debt. It is not pretended that the Union of India made such a payment on 9-7-1963 towards the debt and that such a payment was made before the expiration of the period of limitation prescribed for claiming such debts. It is only in such circumstances a fresh period of limitation shall be computed from the time when the payment was made. No such case has arisen before us in the instant case for consideration. The only surviving circumstance, which requires a serious discussion is whether Ex. A-2 does create a new situation in the eye of law, which would save the bar of limitation which undoubtedly looms large in this case.

7. Mr. Venkateswara Rao, however, would refer to an apparent discrepancy in the decree of the learned Judges who decided the Letters Patent Appeal. In that judgment, the learned Judges were of the view that the plaintiff would be entitled to future salary as a matter of course. They expressed in canny terms that only a small correction was needed in the decree as drafted and which had reference to the judgment of Basheer Ahmed Sayeed, J. While making the small correction, they made their minds very clear and held that the appellant would be entitled to future salary and that such payment would be governed by the service conditions. It would be too much to read between the lines of this portion of the judgment of the learned Judges to say that there has been a revision of the decree of the first appellate Judge resulting in a total denial of the plaintiff of his right to claim future salary. On the other hand, we are of the view, that the learned Judges said that the plaintiff would be entitled tofuture salary, but it would be governed by the service conditions and not to be paid at the same rate as Basheer Ahmed Sayeed. J., thought. That this was their view is also clear from the language deployed by the learned Judges. They characterised the treatment of the decree in the manner they did as a small correction. They intended to revise the decree of the learned Appellate Judge. They, however, for the reasons better known to themselves felt that there was no necessity for the clause in the decree. Probably in that context the decree drafted by this court in the Letters Patent Appeal did not provide for the same. Nevertheless we are of the view that notwithstanding the absence of such a provision in the decree as the judgment provides positively for the payment of future salary to the plaintiff, the argument of Mr. Venkateswara Rao, that the decree does not ex facie provide for the same cannot be taken undue advantage of by the Union Government.

8. We may add that the contention now raised by the Union of India on the basis of a so-called omission in the decree so as to press a bar of limitation against a poor employee of theirs is rather unfortunate.

9. The question, is how far Ex. A-2 would provide a fresh cause of action to the plaintiff to lay his claim for the arrears of salary for the period 8-7-1953 to 28-8-1959. We have already referred to the events that led to the reinstatement of the plaintiff on 28-8-1959. This was as a direct result of the judgment of this court in Letters Patent Appeal which was delivered on 25-2-1959 as seen from Ex. A-1. The applications of the plaintiff for payment of the arrears of salary pursuant to the judgment of this court were of no avail. But he was confronted with the reply wherein he was asked to await the result of the appeal for final decision regarding the claims of pay, seniority, claim for arrears etc. It is in this context that the elementary principles laid down in the Contract Act would loom large. Section 2 of the Indian Contract Act, which deals with definitions which are always considered by eminent jurists as explanatory of the expressions used by the legislature can be referred to for purposes of finding out whether a new contract has been made out in the course of correspondence between the plaintiff and the railways, which ultimately resulted in the issuance of Ex. A-2, by the defendant to the plaintiff. Section 2(a) provides that when one person signifies to another his willingness to do of to abstain from doing anything with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal. Here, the railways made a proposal to the plaintiff asking him to abstain from taking further proceedings pursuant to the judgment of Basheer Ahmed Sayeed, J., till the disposal of the Letters Patent Appeal, Section 2(b) says that when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted and that a proposal, when accepted, becomes a promise. In the instant case by conduct it is clear that the plaintiff signified his assent to await the decision of the Letters Patent Appeal and he did not pursue the matter in relation to his claim for arrears of salary till the judgment of this court was pronounced in Letters Patent Appeal. Therefore, it follows that the proposal of the railway has been accepted by the plaintiff. The consideration for the promise is forbearance to sue. In fact. Section 2(d) provides that, when at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, something, such act or abstinence or promise is called a consideration for the promise. The consideration in the instant case is the promisee has abstained from pursuing his claim for arrears on the specific representation made by the railways that he may wait till the disposal of the Letters Patent Appeal. Section 2(e) says that every promise and every set of promises, forming the consideration for each other, is an agreement and an agreement enforceable by law is a contract under Section 2(h). We are, therefore, of the view that the circumstances in which the railway was prompted to issue this letter and the supervening express conduct of the plaintiff in having abstained from instituting an action to further his claim till this court pronounced its judgment in the Letters Patent appeal, obviously can be terminologically called a new contract entered into between the parties on which rights and obligations obviously would flow from one to the other. The question, therefore, is what are the rights that could reasonably be held to flow from such contract deemed to have been forged between the railways and the plaintiff. We have already referred to the fact that forbearance to sue even though no definite time is alowed is a valuable conside-ration for a promise, provided the promisee has a reasonable ground to believe that he has good cause of action. In the case before us the plaintiff succeeded. It was the defendant, who took up the matter further in appeal. The plaintiff, therefore, can be said to be a person, who had a reasonable ground to believe that he has a good cause of action. He acceded to the request of the railways in that he agreed to forbear from suing or pursuing his claim till the Letters Patent Appeal was disposed of. As pointed out by the author, Pollock and Mulla on the Indian Contract Act, 9th Edn. page 256--

'Compromise is a very common transaction, and so is agreement to forbear prosecuting a claim, or actual forbearance at the other party's request, for a definite or for a reasonable time ..... abstaining or promising to abstain from doing anything which one would otherwise be lawfully free to do or not to do is a good consideration, and every man who honestly thinks he has a claim deserving to be examined is free to bring it before the proper court and have the judgment of the court on its merits, without which judgment it cannot be certainly known whether the claim is well founded or not: for the maxim that every man is presumed to know the law. not a very safe one at best, is clearly inapplicable here.'

We are of the view that the context and the language employed by the railways under Ex. A-2 did prompt the plaintifl to forbear from suing on his cause of action which was then quite alive and which was processable in the eye of law and which he did not further (pursue?) because of the proposal made by the railways and which he acepted in his turn; the cumulative effect of all such events is the springing of a promise ultimately resulting in an enforceable contract in the eye of law. It is in this view we are of opinion that Ex. A-2 has to be interpreted as a fresh contract between the parties.

10. Thus interpreted, if the suit, has been filed well within three years from the date of judgment of the Letters Patent Appeal by the learned judges of the Division Bench, it follows that under Art. 7 of the Limitation Act the suit filed on 4-9-1964 is well within time. We reiterate that Ex. A-2 which has been interpreted as a contract, as it is popularly and legally understood, is one under which the defendant wanted to request the plaintiff not only to postpone the action but also would impliedly mean that they admitted their responsibility and liability to pay such arrears as was decreed by the appellate court, but only wanted to postpone such settlement until a decision by the Division Bench was arrived at. In this view, therefore, the suit laid on 4-9-1964 is well within time, though the arrears of salary claimed relates to a period commencing from 8-7-1953 to 28-8-1959. As the only question, which was raised in the appeal is one of limitation and as we are not in agreement with the contentions of the learned counsel for the appellant the appeal fails and it is dismissed. The judgment of the court below is confirmed in all other respects also. The respondent will be entitled to costs.


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