1. This is an appeal by the Union of India represented by the General Manager, Southern Railway, Madras against the judgment and decree in order Section 10 of 1956 on the file of the court of the Subordinate. Judge, Tiruchirappalli, whereby the Union of India, the defendant in the suit, was directed to pay the plaintiff the sum of Rs. 11,115 with interest thereon at 6 per cent from 18-1-1954, the date of the plaint together with costs amounting to Rs. 1799-4-0.
2. R. Akbar Sheriff, the plaintiff in the suit, presented the plaint on 18-1-1954 on the original side of this court and it was transferred to the City Civil Court, Madras on 22-7-1955, for trial. Before the City Civil Court, the Union of India, the defendant in the suit, raised a preliminary issue that that court had no jurisdiction to try the suit. By order dated 12-10-1955 the city civil court held that it had no jurisdiction and returned the plaint for presentation to the proper court, The plaintiff received the plaint by registered post on 8-12-1955 at Madurai and re-presented the plaint on 12-12-55 before the Sub Court, Tiruchirapalli.
3. The plaintiff was employed as the Permanent Way Inspector in the Southern railway and was dismissed from service as and from 1-4-1949. The order of dismissal of the plaintiff from service was because of the plaintiff's conviction Of offences under Sections 420 and 477-A I. P. C. by the learned Asst. Sessions Judge, Mangalore. This conviction was set aside by an order of acquittal passed by this court in CM. R. C, 1442 of 1949 on 25-1-1951. The plaintiff was thereupon reinstated in service on and from 13-7-1951. The present suit was filed for recovery of salary and allowance due to the plaintiff from 1-4-1949 to 13-7-1951 which aggregated to the sum of Rs. 11,115 as the Union of India refused to pay such salary and allowance despite the order of reinstatement in service.
The Union of India defended the suit and contended that the plaintiff had no right to claim the arrears of salary and allowance in a court of law, that such payment depended entirely on its discretion, and that in any event the suit claim was barred by limitation. The learned Subordinate Judge Tiruchirapalli who tried the suit overruled the defence put forward by the Union of India and granted a decree in favour of the plaintiff as prayed for with costs. This appeal has therefore been preferred by the Union of India challenging the correctness and legality of that judgment and decree.
4. The events that preceded the suit lie in a short compass and may therefore be set out be fore dealing with the points in controversy arising for determination in this appeal. The plaintiff was entertained in service by the Southern railway on 22-4-1921. In the year 1946 he was employed as a Permanent Way Inspector and was stationed at Mangalore. The plaintiff had some misunderstandings with one C. G- Raman, P. W. Sub Inspector and another Govindan, Fitter, both employed under the railway. According to the plaintiff these two persons were responsible for filing false complaints against him to the Section officer attached to the Special Police Establishment at Podanur.
A charge-sheet was filed against the plaintilf before the Sub Divisional Magistrate, Mangalore in R. C. Nos. I and 2 of 1947 charging the plaintiff with having committed offences under Sections 420 and 477-A I.P.C. The charge was that the plaintiff who was entrusted with the duty of replacing sleepers in the railway line near Mangalore carried out the work with the help of the gang coolies employed under the railway but made it appear as if he had employed casual labourers to do the job and created false entries of payments. The cases were committed for trial before the Asst. Sessions Judge, Mangalore and were taken up on his file as S. C. Nos. 11 and 12 of 1948. After trial the plaintiff was acquitted by Order of court dated 4-8-1948.
The charges against the plaintiff were split up before the Asst. Sessions Judge Mangalore and a batch of two more cases, S. C. No. 11-A and 12-A were tried separately by the learned Asst. Sessions Judge, Mangalore. On 31-1-1949 S. C No. 11-A ended in an acquittal but S. C. 12-A ended in a conviction against the plaintiff. The plaintiff was sentenced to three years simple imprisonment and a fine of Rs. 75. He preferred an appeal before the learned Sessions Judge, Mangalore, in C. A. 11 of 1949.
The learned Sessions Judge while confirming the conviction of the plaintiff reduced the sentence of imprisonment alone to a period of 18 months from a period of three years. Then he preferred Crl. R- C. 1442 of 1949 before this court. Somasundaram J. by his order dated 25-1-1951 set aside the conviction and sentence of the courts below and directed an acquittal of the plaintiff. The order of acquittal of this court has been marked as Ex. A-l in the case.
5. The plaintiff while he was on casual leave between 17-1-1949 and 28-1-1949 was served with an order of suspension by the railway authorities granting him a subsistence allowance of 50 per cent of his salary with full dearness allowance. This suspension order is evidenced by Ex. A-3 elated 24-1-1949. Consequent on the conviction and sentence passed by the learned Asst. Sessions Judge, Mangalore the plaintiff was dismissed from service with effect from 31-3-1949. The dismissal order is Ex. A-4 dated 15-3-1949. The order recites as follows : "You are hereby dismissed from the service with effect from 31-3-1949 on account of criminal conviction."
6. The plaintiff by his letter dated 25-3-1949, Ex. A-5, addressed to the General Manager stated that he had already appealed to the Sessions Court, Mangalore, against the order of conviction, passed by the Asst. Sessions Judge, Mangalore and requested for suspension of order of dismissal till the decision of the appellate court. But this request on the part of the plaintiff was not given heed to by the railway authorities. The railway authorities however wrote a reply to the plaintiff, Ex- A-7, dated 23-4-1949 stating that the conviction of the court holds good until reversed by the higher court and that the position that may result it that conviction were to be set aside on "appeal will be considered at the proper stage, if and when such a stage arises. The result was that the plaintiff was dismissed from service with effect from 31-3-1949 and ceased to hold office:
7. There was another charge against the plaintiff which was tried by the Asst. Sessions Judge, Tirunelveli in S. C. No. 104 of 1950 By order of court dated 17-3-1951 this also ended in an acquittal. The learned Asst. Sessions Judge in the course of his order of acquittal observed thus:
"As I find that he has been unduly harassed by the prosecution having been launched against him as a result of conspiracy the railway administration will not only reinstate him but make adequate recompense for the mental pains and suffering that he had to undergo."
8. On 24-4-1951 the plaintiff wrote Ex. A-11 to the General Manager stating that all the prosecutions against him had ended in order of acquittal, that the order of dismissal passed by the railway can no longer stand, and that he should be restored to his job as Permanent Way inspector, maintaining his seniority, and that the whole period from the date of suspension from duly to reinstatement should be treated as special leave on duty arid that he should also he given the benefit of the annual increments on the due dates- As there was no response from the railway, the plaintiff addressed to the General Manager further letters, Exs- A-12 dated 27-4-1951 and A-13 dated 14-5-1951.
He followed this up by a registered notice through his counsel at Madurai to the General Manager which is Ex. A-15 dated 2-6-1951. The demand contained in the notice on behalf of the plaintiff was couched in the following terms:
"This is to give you notice that my client will be forced to the painful necessity of filing a suit for reinstatement and for damages and back pay if he is not reinstated within a week from receipt of this notice."
9. The railway sent a reply, Ex. A-14 dated 9-6-1951 stating that the matter was under consideration. On 10-7-1951 the plaintiff received the communication Ex. A-I6 in the following terms:
"This office No. A.34/44/IE of 15/22-3-1949 dismissing you from service with effect from 313-1949 is hereby cancelled and the Chief Engineer has been advised to reinstate you in service immediately. Please note that you will not draw anything more than what has already been paid to you for the period from 4-2-1949 to the date of reinstatement."
10. The plaintiff submitted the petition dated 23-7-1957 to the General Manager for reconsideration of the decision withholding salary for the period between the date of dismissal and the date of reinstatement. To this the railway sent a reply Ex. B. 3 dated 20-9-1951 stating that the period of absence from 31-3-1949 to 12-7-1951 will be treated as leave without pay. The plaintiff again wrote to the General Manager by his letter Ex. A. 22 dated 9-11-1951 pleading for payment of salary and allowance for the period in which he was out of office by reason of the order of dismissal which was subsequently set aside and cancelled. The plaintiff gave instance in that letter where the railway was pleased to grant full pay and allowance to other employees who were dismissed but subsequently reinstated.
The railway sent a reply stating that there was no justification for modifying the orders already issued by them. Then the plaintiff wrote another letter, Ex. A. 10, dated 4-3-1952, addressed to the General Manager complaining that persons junior to him in service had been promoted to higher grade and that the railway should give him also the benefit of promotion. The railway sent a reply, Ex. A. 24, dated 7-4-1952 observing that it was not possible to set aside the results of the selection board during the period he was absent from duty from 31-3-1949 to 12-7-1951, but that the plaintiff will maintain his seniority in his grade amongst those not selected for higher posts. After some further correspondence the plaintiff caused a notice to be issued through his counsel intimating the railway of the intended suit to which the railway sent a reply, Ex. A. 25, stating that the plaintiff was at liberty to move the court at his own risk. The plaintiff was therefore compelled to launch the present suit.
11. From the facts set out above which are not in dispute it is clear that the plaintiff was dismissed from service by reason only of the conviction and sentence passed against him by the Asst. Sessions Judge, Mangalore, on 31-1-194SK The dismissal order Ex. A. 4 in the case specifically states that the plaintiff was dismissed on account of "criminal conviction." It is also clear that the plaintiff was reinstated in service only as a result of the conviction against the plaintiff having been set aside by this court by order dated 25-1-1951. The contention of the plaintiff is that the order of dismissal from service was illegal as it merely followed a wrong order of conviction-which was ultimately set aside by the highest court in the State.
If the plaintiff was not reinstated in service he could have filed a suit in the civil court for a declaration that the order of dismissal was illegal, void and inoperative as the foundation for the order of dismissal, namely, the conviction by a competent criminal court, was absent, the conviction itself, having been set aside, and as there was no compliance with the provisions of Article 311 of the Constitution. We shall refer to the terms of Article 311 and discuss the rights of the civil servant holding office under the Union of India, a little later. The plaintiff's case, therefore, is that he cannot be deprived of the salary and allowance by reason of an illegal and void order of dismissal passed by the railway.
On behalf of the Union of India this contention is met on the ground that the order of dismissal at the time when it was passed was quite legal and proper as it merely gave effect to the conviction of the plaintiff by a competent criminal court, and that the subsequent setting aside of the conviction by a court of superior jurisdiction cannot retrospectively affect the legality of the dismissal order so as to enable the plaintiff to claim the salary and allowance for the period for which he was out of office.
12. Every civil servant employed under the Union of India holds office during the pleasure of the President except as expressly provided by the Constitution. Both under the Government of India Acts of 1919 and 1935 every person in the civil service of the Crown in India holds office during His Majesty's pleasure. This pattern of tenure of office by a person serving the Union is adopted from the English system of civil service. The underlying conception of the rule is based upon public policy. The conditions of services are regulated by statutory rides. Section 240, Clause. (2) and (3)of the Government of India Act, 1935 introduced two safeguards in favour of the civil servant, that he shall not be dismissed from the service by any authority subordinate to in rank to that by which he was appointed and that he shall not be dismissed from service or reduced in rank Until he has been given a reasonable opportunity of showing cause against the proposed action against him.
Article 311 Clauses (1) and (2) of the Constitution now provide the same safeguards not merely for dismissal from the service and reduction in Tank, but also for removal from service of a civil servant. These provisions operate as restrictions on the otherwise unfettered powers of the President or the Governor. A violation of Article 311(1) or 311(2) is a justiciable issue in a court of law as the terms thereof are mandatory and not permissive, qualifying, the Provisions of Article 310 and providing a condition precedent to the exercise of the power under Article 310.
The observation of Lord Thankerton delivering the judgment of the Judicial Commitee in High Commissioner for India v. I. M. Lall, 75 Ind App 225 : (AIR 1948 PC 121) interpreting the provisions of Sections 240(2) and 240(3) of the "Government of India Act is fully applicable and affords guidance to the interpretation of Article 311(1) and 311(2) of the Constitution. Any purported removal or dismissal from service of a civil servant without conformity to the prohibitory and mandatory provisions of Articles 311(1) and 311(2) of the Constitution is void and inoperative. The proviso to Article 311(2) is as follows:
"Provided that this clause shall not apply; (a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge...."
The immunity of a civil servant under the Union of India from dismissal or removal from service or reduction in rank until he has been given a reasonable chance of showing cause against the action proposed to be taken against him is taken away under proviso (a) to Article 311(2) in a case where the dismissal or removal from service or reduction in rank is based upon the ground of conduct which resulted in his conviction on a criminal charge. In order to sustain an order of dismissal from service of a civil servant without compliance of the provisions of Article 311(2), there must be a conviction of that person on a criminal charge by a competent court.
Once the conviction is set aside or quashed the dismissal order must fall to the ground. An acquittal of a person of a criminal charge by a higher court setting aside the conviction passed by a subordinate or an inferior court is tantamount to, the person not having been convicted at all. The setting aside of a wrong order of a court results in the position as if such order was never in existence, though as a fact the order was passed and lasted till it was set aside. This view of the matter is not a legal fiction as the proceedings forming the subject matter of a criminal charge against a person from the primary court of trial to the ultimate court of final appeal or revision really constitute one proceeding and however varying the fortunes of the person indicated may be the proceeding can always have only one result, and that is the result of the last proceeding which becomes indefeasibly final.
13. In Dilbagh Rai v. Divl. Supdt. Northern Rly., the petitioner before 'the High Court was prosecuted for an offence tinder Section 509 IPC for having wished namaste to a lady on a railway platform m circumstances which were not considered proper. He was convicted and sentenced to a term of three months simple imprisonment by the trial magistrate on 29-12-1955. His appeal to the court of session against the said conviction failed. He preferred a revision in the High Court of Punjab, but was again unsuccessful. Thereafter he obtained special leave from the Supreme Court of India and finally the Supreme Court by its decision dated 7-3-1957 set aside the conviction and sentence and acquitted him.
The petitioner was however dismissed service in view of the conviction and sentence passed against him by the trial magistrate. After the order of acquittal passed by the Supreme Court the petitioner prayed for reinstatement service but the railway authorities refused to reinstate him. The petitioner therefore moved the High Court under Article 226 of the Constitution for an appropriate writ to quash the order of dismissal as being wholly void and ineffective. The question for consideration by the Punjab High Court was whether the provisions of Article 311(2) of the Constitution were really complied with in a case of this description. The High Court held that an order of dismissal passed upon a conviction, which was set aside subsequently is not an order in conformity with Article 311(2). At page 402 the High Court observed thus ;
"Now the aforesaid proviso, becomes applicable only if a person has been convicted on a criminal charge. Conviction here can have only one meaning namely that the person must have been convicted finally. In other words, if a person is acquitted by a court of appeal, then it cannot be said that there is any conviction in the sense in which it is used in the aforesaid provision. In the present case the petitioner had been acquitted by the highest court of the land. It could not possibly be said that his case fell within the aforesaid proviso. He was, therefore, fully entitled to the protection guaranteed by Art, 311".
14. In R. S. Dass v. Divl. Superintendent, Allahabad, the petitioner be fore the High Court was prosecuted for offences under Section 409 I.P.C. in relation to certain acts done by him in the performance of his duties as relieving train clerk at Aligarh. The magistrate who tried the petitioner convicted him for the said offence by his order dated 18-12-1956. Appeals were preferred before the Sessions Judge, Aligarh, who allowed the same on 15-2-1958. Before the appeals could be disposed of by the Sessions Judge, the Divisional Superintendent, Allahabad dismissed the petitioner from service by his order dated 25-2-1957. The petitioner was not charge-sheeted separately before the departmental authority.
No enquiry was held against him on any alleged charge by the department. The order of dismissal was passed on the strength of the finding reached by the magistrate who convicted him for an offence under Sections 409 and 477-A I.P.C. The question for consideration by the Allahabad High Court was whether the dismissal order of the petitioner can be sustained after the conviction itself upon which it was based was set aside. At page 539 the High Court observed thus:
"But apart from the above consideration, the main thing to be considered is the true meaning of the words in the proviso 'which has led to his conviction on a criminal charge'. Do these words merely indicate as the respondent has contended, that there was at one stage of the proceedings a conviction against the public servant, or do they further imply a conviction finally upheld? The words "led to his conviction" mean, in the context they have been used, not merely to bring A criminal charge against the delinquent servant but further imply that as a result or consequence it has ended in conviction also.
A proceeding will not be said to have led to his conviction if it has not resulted ultimately in conviction or as a consequence of appeal, has failed in an acquittal- 'Appeal is a continuation, of the proceedings commenced on the criminal charge and it does not conclude in a conviction where an appeal is preferred against the order of the trial court or of any subsequent court until these subsequent proceedings have finally ended. ....... At the same time it is clear that the order of dismissal passed by the Divisional Superintendent cannot be supported on the ground stated in Sub-clause (a) of the "proviso under Clause 2 of Article 311. This is so because of the finding arrived at earlier that the sub-clause implies a final conviction. If that is so, the very foundation on which the dismissal order was based and which in its turn gave occasion for a reinstatement Order to be passed has fallen, and if the foundation should disappear, the edifice must also necessarily go".
We respectfully agree with the principle kid down in the decisions cited above as it follows from the plain provisions of the Constitution enshrined in Article 311(2). Admittedly there has been no departmental enquiry against the plaintiff on a charge of any kind. The order of dismissal of the plaintiff was a consequence, and perhaps a necessary consequence of his conviction on a criminal charge by a competent court. The setting aside of the conviction by the order of acquittal passed by this court necessarily undermined the previous order of dismissal which, however lawful it might have been at the inception when it was passed, cannot survive the disappearance of the conviction caused by the acquittal.
In fact the defendant acted quite rightly and properly by setting aside the order of dismissal and ordering reinstatement of the plaintiff thus giving effect to the change of circumstances caused by the order of acquittal. We are of opinion that the order of dismissal of the plaintiff from the service became illegal, void and inoperative by reason of the chain of events narrated above, and that it is impossible to contend, as was attempted on behalf of the defendant that the order of dismissal can in some way be treat ed to have had a legal subsistence during the period for which it lasted till it was cancelled by the order of reinstatement.
15. The question that arises for determination in this appeal is whether the plaintiff is entitled to recover the salary and allowance due to him between 1-4-1949 and 13-7-1951, by instituting the action in a civil court. He must be deemed to have been in service during that period as the purported order of dismissal was void and inoperative. The plaintiffs claim cannot be barred by the Constitutional provision under which he held office during the pleasure of the President as he had a right to continue in office till terminated with due regard to the provisions of Article 311. Under the English law the subject cannot maintain an action against the Crown for a declaration of improper or illegal termination of service or for recovery of arrears of salary. In Wade and Philip's Constitutional Law, 5th Edn. page 334, the legal position is thus set out:
"The security of the civil service depends upon convention, rather than law. The agreements reached between the Treasury and representatives of the staffs of Government departments in joint councils (Whitlcy Councils) and afterwards confirmed by the Treasury do not give rise to contractual rights; Rodwell v. Thomas, 1944 KB
596. No remedy exists where an officer appointed under statutory, authority loses his office through its premature termination by Act of Parliament without compensation, since the agreement has become impossible of performance; Reilly v. R, 1934 AC 176. Members of the armed forces cannot sue for arrears of pay, for no engagement between the Crown and members of the armed forces can be enforced by a court of law: Leaman v. R, 1920-3 KB 663, Kynaston v. Attorney General, 1933-49 TLR 300."
The footnote at page 335 indicates that even a civil servant cannot sue for arrears of pay: Lucas v. Lucas, 1943 P. 68.
16. In Lall's case, 75 Ind App 225 : (AIR 1948 PC 121), the Judicial Committee held that a civil servant cannot sue for recovery of arrears of pay though the order of dismissal can be declared to be void as the claim depended on the bounty of the Crown, and not on a contractual debt. In Punjab Province v. Tara Chand, AIR 1947 FC 23 it was held that a servant of the Crown in India (as he then was) had a right to maintain a suit for recovery of arrears of pay which have become due to him. At page 27, Zafrullah Khan J. observed thus:
"It is thus obvious that the prerogative right of the Crown to dismiss its servants at will having been given statutory form in Sub-section (1) of Section 240 it can only be exercised subject to the limitations imposed by the remaining sub-sections of that section and it must follow as a necessary consequence that if any of those limitations is contravened the public servant concerned has a right to maintain an action against the Crown for appropriate relief. There is in our judgment no warrant for the proposition that that relief must be limited to a declaration and should not go beyond it."
"In the State of Bihar v. Abdul Majid, the Supreme Court of India approved the principle laid down by the Federal Court in Tarachand Pandit's case, 1947. FCR 89 : (AIR 1947 FC 23). In that case a Sub-Inspector of police in the State of Bihar and Orissa was dismissed from service by the Deputy Inspector General of Police of that State on a charge properly framed and found to have been proved against the Government servant. The dismissed employee filed a suit for a declaration that the order of the Deputy Inspector Gereral of Police dismissing him from service was ille gal, and that he should be regarded as continuing in office. He also claimed a sum of Rs. 4241 as arrears of salary due to him.
After the institution, of the suit the Government reinstated the employee in service as the Order of dismissal by the Deputy Inspector General of Police was obviously illegal, in view of the fact that the Sub-Inspector was appointed by the Inspector General of Police but was dismissed by an officer subordinate in rank to the I. G. of Police. The question that arose for consideration before the Supreme Court was whether the employee could maintain the action so far as it related to recovery of the arrears of salary. Their Lordships of the Supreme Court differed from the view taken by the Judicial Committee in Lall's case, 75 Ind App 225 : (AIR 1948 PC 121) and expressed their approval of the principle laid down by the Federal Court in Tara Chand Pandit's case, AIR 1947 FC 23. Referring to Lalls case, 75 Ind App. 225 : (AIR 1943 PC 121) Maha-jan, C. J. observed thus at page 795 : (of SCR) :(at p. 249 of AIR):
"We are therefore of the opinion that the rule laid down by their Lordships of the Privy Council in I. M. Lall's case, 75 Ind App 225 : (AIR 1948 PC 121), without a consideration of the provisions of the Civil Procedure Code relevant to the inquiry and without a consideration of the reasoning of the Federal Court in Tarachand Pandit's case, AIR 1947 FC 23, cannot be treated, particularly because the matter was not directly involved in the suit, as the final word on the subject". At page 799 (of SCR); (at p. 250 of AIR) the learned Chief Justice observed further as follows:
"This rule of English law has not been fully adopted in Section 240. Section 240 itself places restrictions and limitations on the exercise of that pleasure and those restrictions must be given effect to. They are imperative and mandatory. It follows therefore that whenever there is a breach of restrictions Imposed by the statute by the Government or the Crown the matter is justiciable and the party aggrieved is entitled to suitable relief at the hands of the court. As pointed out earlier in this judgment, there is no warrant for the proposition that the relief must be limited to the declaration and cannot go beyond it. To the extent that the rule that Government servants hold office during pleasure his been departed from by the statute, the Government servants are entitled to relief like any other person under the ordinary law, and that relief therefore must be regulated by the Civil Procedure Code."
17. The Supreme Court held in that case that a dismissed civil servant was entitled to re-cover arrears of salary due to him where the order of dismissal was illegal and void.
18. In Om Prakash Gupta v. State of U. P., , the
Supreme Court followed the previous decision in =
Imam, J, observed as follows:
"It may be stated at once' that in view of the decision of this Court in there can be no question now that the
appellant had the right to institute a suit for recovery of arrears of salary as he was dismissed illegally. It is unnecessary therefore to refer to the elaborate discussion of the law in this respect to be found in the judgment of the learned Judges of the High Court".
In Parshotam Lal Dhingra v. Union of India, , the
principle laid down in Abdul Majid's case, was again referred to with approval by the Supreme Court. At page 835 (of SCR) : (at p. 40 of AIR) Das, C. J. observed thus:
"Under the English common law all servants of the Crown held office during the pleasure of the Crown and were liable to he dismissed at any time and without any reason, being assigned for such dismissal. No action lay against the Crown in respect of such dismissal, even though it were contrary to the express terms of the contract of employment, for the theory was that the Crown could not fetter its future executive action by entering into a contract in matters which concerned the welfare of the State. A servant of the Crown could not at Common, Law sue the Crown even for the arrears of his salary, and his claim could be only on the bounty of the Crown, The established notion was that the implied condition between the Crown and its servant was that the latter held his office during the pleasure of die Crown, no matter whether it had been referred to when the engagement had been made or not and that public policy demanded this qualification (See per Lord Blackburn in Mulvenna v. Admiralty, 1926 SC 842). This rule was applied in full force in LR 1943 P. 68, where it was held that the sterling overseas pay of an Indian Civil Servant was not a debt which could be attached in satisfaction of an order for the payment of alimony. In however this court held, for reasons stated in the judgment delivered, by Mahajan, C. J. that the Indian Law has not adopted the rule of English law on the subject in its entirety."
19. At page 839 (of SCR) : (at p. 41 of AIR) Das, C- J. further observed thus:
" .... the provisions of Article 311 operate as a proviso to Article 310(1). All existing laws have; been continued by Article 372, some of which e.g. the Code of Civil Procedure make it possible for a public servant to enforce his claims against the State. It has accordingly been held by this court in State of Bibar v. Abdul Majid, (Supra) that the English Common Law rule
regarding the holding of office by public servants only during the pleasure of the Crown has not been adopted by us in its entirety and with all its rigorous implications."
There can therefore be no doubt that the plaintiff in the present case is entitled to site for recovery of the salary and allowances due to him or the period claimed.
20. Learned counsel for the appellant con-ended that there was discretion on the part of he railway authorities not to grant the salary under Rule 2044 (Railway Fundamental Rules--Service Conditions, Pay and Deputation) where there was no honourable acquittal of the employee of the criminal charge and that such discretion has been exercised in this case and that it is beyond the competence of the civil court to question the exercise of that discretion. Rule 2044 is as follows:
"Fundamental Rule 54 :-- pay after reinstatement: When the suspension of a railway servant is held to have been unjustifiable Or not wholly justifiable; or when a railway servant who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty-- (a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or
(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.
In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising authority so direct."
21. The Government of India has given a decision interpreting this rule as evidenced by Ex. Article 26. In their view the rule applies to departmental punishments and net to cases of punishments by a court of law for alleged offences which had nothing to do with the official duties of the employee. Of course this interpretation by the Government cannot certainly bind the court. It is very difficult to hold that rule 2044 can apply to a case like the present where both the order of dismissal and the order of reinstatement came to be issued as a corollary to the judgments of competent courts. The words "revising or appellate authority" occurring in the rule are suggestive of a reinstatement by the revising or appellate authority cancelling an order of dismissal or removal after acquitting the servant of the charges framed against him.
22. In Union of India v. Bhagatram, it was held that the word 'may' in the rule was used only to indicate 'the empowering" of the authority, and not to indicate-that the authority had vested in him a discretion in the matter.
23. In General Manager Northern Railway v. Swaroopraj, . a Division Bench of the Rajasthan High Court had occasion to consider the scope of the Rule 2044. At page 57, the learned Chief Justice, Wanchoo, C. J- observed thus:
"Then comes Rule 2044. That rule lays what is to happen when a railway servant, who has been dismissed, removed or suspended, is reinstated- The rule itself says nothing as to whether it applies to reinstatement after departmental proceedings only or also to reinstatement after a criminal prosecution, resulting in an acquittal. But certain instructions were issued by the Government of India with the concurrence of the Auditor General and it was said in those instructions that Rule 2044 applied to departmental punishment and not to cases of punishment by a court of law for an alleged offence which has nothing to do with his official duties."
These instructions however only apply to offences which have nothing to do with his official duties. Therefore where the prosecution is for an offence which is connected with official duties, there seems to be nothing in these instructions which debar the application of Rule 2044. But we would like to leave this question open in the present to be decided finally in a proper case......"
24. Rule 2044 was strongly relied upon by the learned counsel for the appellant as vesting an absolute discretion in the railway authorities to withhold the salary during the period of purported dismissal. Learned counsel further contended that the plaintiff was not honourably acquitted and that therefore Rule 2044 (a) cannot be-taken advantage of by him. Granting so much it is obvious that the plaintiff will at least he eligible for a portion of the salary as may be fixed by the revising or appellate authority under Rule 2044 (b). Even in a case where the acquittal is not honourable Rule 2044 does not empower the railway authority to forfeit the whole of the salary. The denial of the salary to the plaintitt cannot be justified as an act of legitimate exercise of power of discretion under Rule 2044.
25. It was then contended on behalf of the appellant that Rule 2044 is merely a guide for administrative action the observance of which cannot be enforced in a court of law and the non-observance of which cannot vitiate any pro. ceeding so as to be called in question in a court of law. The decision of the Bombay High Court in S. Framji v. Union iOf India, Bombay, AIR 1960 Bom 14, was referred to in this connection. Chagla, C J. held in that case that the rules contained in the Indian Railway Establishment Code are no doubt statutory rules but they were merely rules of guidance and are mere administrative rules which do not by themselves constitute a contract between the Union of India and the employee. The learned Chief Justice further referred to the principle laid down by the Supreme Court in Abdul Majid's case. as an exception and observed at page 17 thus:
"As a matter of fact, the Supreme Court in a very recent decision in has pointed out that subject to the excep-' tions
contained in Article 311, our Constitution has adopted the English common law rule that public servants hold office during the pleasure of the President Or the Governor as the case may be and they also point out that all that Abdul Majid's case, laid
down was that the English Common Law rule regarding the holding of office by public servants only during . the pleasure of the Crown has not been adopted by us in its entirety and with all its rigorous implications. But subject to these exceptions, the exception of Article 311 and the exception enunciated by Abdul Majid's case, with regard to the recovery of arrears of salary
it is not suggested with respect by the Supreme Court in its judgment that the doctrine of a Government servant holding office during the King's pleasure has been in any way further limited or cut down." The Bombay case dealt with the question whether the upgrading or down-grading of an employee in service in accordance with the rules contained In the Railway Establishment Code is justiciable or not That was not a case where there was a violation of the Constitutional provision under Article 311 of the Constitution.
26. We may also refer to a decision of this court in Sambandham v. Regional Traffic Supdt., AIR 1958 Mad 243, in which the headnote is as follows:
"A violation of a rule framed by the exeat-live authority to determine seniority as one of the conditions of service of a civil servant is not an actionable wrong for which the court could grant redress. To hold that the court has that jurisdiction would constitute an inroad on the concept that the civil servant holds office during the pleasure of the Executive, not warranted by the terms of the Constitution- Service rules promulgated under Article 309 of the Constitution do not of their own force become part of the Constitution to come within the scope of the expression 'except as expressly provided by the Constitution' in Article 310(1). The position is not any different, if the rules in force are not those framed under Article 309, after the Constitution came into force, but are rules framed under earlier enactments but continued in force, under the terms of Article 313."
27. Every violation of a statutory rule governing service conditions cannot give rise to a right in favour of the aggrieved person to seek redress in a court of law. If it were to be otherwise, the constitutional doctrine of the civil servant holding office under pleasure of the Executive will become a mirage and an empty shell. The observations of Lord Roche in Venkatrao v. Secretary of State, 64 Ind App 55 at p. 63 : (AIR 1937 PC 31 at p. 34) may be usefully referred to:
"The argument for a limited and special kind of employment during pleasure but with an added contractual term that the rules are to be observed is at once too artificial and too far reaching to commend itself for acceptance. The rules are manifold in number and most minute in particularity, and are all capable of change. Coun-sel for the appellant nevertheless contended with most logical consistency that on the appellant's contention an action would lie for any breach of any of these rules as for example of the rules as to leave and pensions and very many other matters. Inconvenience is not a final consideration in a matter of construction, but it is at least worthy of consideration, and it can hardly be doubted that the suggested procedure of control by the courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion."
It is no doubt true that the remedy of a civil servant complaining of an injury caused to him by reason of the violation of the statutory rules lies only to the hierarchy of authorities within the domain of administration and resort cannot be had to a civil court. But a violation of a constitutional provision such as Article 311 does certainly give rise to a right in favour of the aggrieved individual enforceable in a court of law.
28. The plaintiff's claim in this case cannot be defeated on the ground that the injury caused to him by deprivation of salary and allowance was merely due to infraction of a departmental rule. We are absolutely convinced that the plaintiff was deprived of his salary and allowance only as a direct result and the immediate consequence of the order of dismissal from service, which could not be sustained by the authorities themselves lest they should infringe the provisions of Article 311(2) of the Constitution. The gist of the cause of action of the plaintiff to sue for recovery of arrears of salary, in the instant case, rests upon a constitutional illegality committed by the defendant. The plaintiffs claim to recover the salary for the relevant period is really unanswerable as the denial of such a right by the defendant was inextricably mixed up with an illegal order of dismissal contravening the provisions of the Constitution. We are therefore of opinion that the suit claim is well founded and that the learned Subordinate Judge was right in granting a decree in favour of the plaintiff as prayed for.
29. Learned counsel for the appellant contended that the order of reinstatement made it plain that the plaintiff will not be entitled to draw any salary or allowance during the relevant period, and that the plaintiff having accepted office in pursuance of such an order of reinstatement was in some way estopped from putting forward the claim to the salary and allowance. This plea of estoppel which is certainly a mixed question of fact and law was not raised in the written statement filed by the appellant. We do not think that it will be proper to permit the appellant to raise this plea which involves investigation of fresh facts at this stage of the proceedings. We are also convinced that there is no substance in the plea sought to be raised.
The terms of the order of reinstatement cannot be read so as to impose a condition that the plaintiff cannot have the benefit of reinstate ment if he were to insist upon payment of the salary and allowance. There is no basis for invoking the doctrine of estoppel or for bringing in the doctrine of approbate and reprobate against the plaintiff. The order of reinstatement was an unconditional one though the plaintiff was intimated of the fact that he will not be given any salary or allowance for the period he was out of office. The plaintiff however protested against the withholding of the salary and allowance and never abandoned his claim. In these circumstances wo are of opinion that this plea on the part of the appellant must fail.
30. The only other question that remains for consideration is the plea of limitation urged by the defendant. It was urged that Article 102 of the Limitation Act governed the suit and that the plaintiff will therefore not be entitled to recover any salary for a period beyond three years prior to the institution of the suit. Article 102 is as follows:
For wages not otherwise 3 years When the wages expressly provided for by accrued due. this Schedule.
The learned counsel for the appellant referred to a decision of the Federal Court in AIR 1947 FC 23. Their Lordships held that the tern; "wages" occurring in Article 102 included pay or salary and that the period of limitation for a suit to recover arrears of pay is governed by Article 102 and not by Article 115, 130 or 131. The question is when did the wages accrue due in the present case. 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 had no right to claim salary.
The plaintiff was reinstated in service only on 13-7-1951 and it is only thereafter that he can sue for recovery of salary for the period for which the dismissal order was in force. The suit was filed on 18-1-1954 well within three years from the Order of reinstatement. We therefore hold that the suit is not barred by limitation.
31. In the result the appeal fails and is dismissed with costs.