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The Union of India (Uoi) Represented HereIn by the General Manager, Southern Railway Vs. C. Kanniah - Court Judgment

LegalCrystal Citation
SubjectService
CourtChennai High Court
Decided On
Reported in(1974)1MLJ208
AppellantThe Union of India (Uoi) Represented HereIn by the General Manager, Southern Railway
RespondentC. Kanniah
Cases ReferredSouthern Railway v. G.A. Krishnaswamy A.S. Nos.
Excerpt:
- .....from 8th february, 1962, vide office order quoted above--the intervening period of between the date of dismissal from service and the date of reinstatement (i.e., 21st march, 1957 a.n. to 7th february, 1962) has been regularised as duty. however, you will be eligible for pay and allowances for the intervening period subject to the law of limitation. in this connection you are required to give a declaration as to whether you were in employment anywhere during the intervening period and if so, complete details of such employment should be furnished. in the event of your declaration being found to be false at a later date, please note that you will be liable to be taken up with under the discipline and appeal rules for such false declaration.by a communication dated 28th june, 1962,.....
Judgment:

M. M. Ismail, J.

1. The defendant in O.S. No. 681 of 1965, on the file of the City Civil Court, Madras viz., the Union of India represented by the General Manager of the Southern Railway, who lost before the trial Judge as well as the first appellate Judge, is the appellant herein. The facts are not in controversy. The respondent was in the service of the Southern Railway as a Record Sorter and he was suspended from service on 7th September, 1955, on certain charges of criminal conspiracy. The respondent was prosecuted under sections 120-B, 467 and 420, Indian Penal Code and was eventually convicted of those offences and was stentenced to undergo two years' rigorous imprisonment by judgment dated 4th March, 1957. After this judgment in the criminal case was delivered, the appellant dismissed the respondent from service with effect from 21st March, 1957. Against this order of dismissal, the respondent preferred Writ Petition No. 1134 of 1959 on the file of this Court. Meanwhile, the convictions were taken up on appeal and the High Court set aside the convictions and acquitted the respondent of the offences, by an order dated 30th July, 1958. In view of the acquittal of the respondent by the High Court, the writ petition itself was allowed and the order of dismissal of the respondent passed by the Railway was set aside, by an order of this Court on 1st November, 1961. After this order was passed, the appellant reinstated the respondent into the service.

2. Exhibit A-6 an order dated 2nd February, 1962 of the General Manager states that the respondent was 'reinstated in service as temporary Record Sorter on pay Rs. 80--110/AS (authorised scale) with immediate effect without prejudice to further action' and that the said reinstatement order was made pursuant to the order of the General Manager dated 8th January, 1962. Subsequently, another communication was issued by the authorities. This communication dated 7th June, 1962 marked Exhibit A-7 addressed to the respondent states:

Consequent on your reinstatement in service with effect from 8th February, 1962, vide Office Order quoted above--the intervening period of between the date of dismissal from service and the date of reinstatement (i.e., 21st March, 1957 A.N. to 7th February, 1962) has been regularised as duty. However, you will be eligible for pay and allowances for the intervening period subject to the law of limitation. In this connection you are required to give a declaration as to whether you were in employment anywhere during the intervening period and if so, complete details of such employment should be furnished. In the event of your declaration being found to be false at a later date, please note that you will be liable to be taken up with under the Discipline and Appeal Rules for such false declaration.

By a communication dated 28th June, 1962, marked as Exhibit A-8, the respondent informed the Railway authorities that his eligibility for pay and allowance for the period 21st March, 1957 to 7th February, 1962, was not governed by law of limitation, that for the period between 6th September, 1955 and. 21st March, 1957, he was under suspension drawing subsistence allowance, that in view of the judgment in W.P. No. 1134 of 1959 he was entitled to full salary during the period between 6th September, 1955 and 21st March, 1957 also and that, therefore, the Railway was bound to pay him, in addition to the arrears of salary for the period between 21st March, 1957 and 7th February, 1962, full salary for the period between 6th September, 1955 and 21st March, 1957 also, which was not subject to law of limitation. By a communication dated 21st August, 1962, marked as Exhibit A-9 the Railway informed the Counsel for the respondent that sanction for payment of arrears of salary subject to law of limitation was accorded by the competent authority on. 22nd September, 1961 and that the respondent would be entitled to arrears of salary for the back pariod of three years from 22nd September, 1961 for which payment was being arranged. The communication further states that the claim for the period beyond three years from 22nd September, 1961, made on behalf of the respondent would be barred by limitation and that the respondent was not entitled to, and had no manner of right to, claim the same. Exhibit A-10 is an office order dealing with fixation of pay of the respondent for the relevant period. Exhibit A-3 is a communication dated 8th February, 1963, addressed by the Railway to the respondent stating that the respondent would be entitled to arrears of salary for a back period of three years from 23rd April, 1962 the date on which the competent authority sanctioned payment of arrears subject to law of limitation after deducting the salary received by the respondent from the date of his reinstatement into service, viz-, on 8th 'February, 1962, to the date when the competent authority passed orders, viz. 23rd April, 1962. (The date 22nd September, 1963, mentioned in Exhibit A-9 was said to be a mistake.)

3. It was under these circumstances the respondent herein instituted the present suit for recovery of arrears of salary from 7th. September, 1955 to 7th February, 1962 and for recovery of the balance deducting the subsistence allowance paid to him for the period from 7th September, 195.5 to 20th March, 1957.

4. The principal defence of the appellant was that the claim except for a period of three years from 23rd April, 1962, was barred by limitation and consequently the respondent would not be entitled to claim the amount as prayed for by him in the plaint.

5. I may mention in this context that with reference to the amount claimed in the plaint the respondent calculated the total amount payable to him by the Railway as Rs. 6,360.47 and after giving credit for a sum of Rs. 2,741.85 paid to him on 13th September, 1963, the suit was instituted for recovery of the balance of Rs. 3,618.62 only.

6. The trial Judge as well as the appellate Judge in considering the question of limitation relied upon the Bench Decision of this Court in State of Madras v. A.V. Anantharaman : (1963)IILLJ584Mad which is directly in point and held in favour of the respondent and decreed the suit as prayed for. Hence the present second appeal by the defendant.

7. Mr. Srisailam, the learned Counsel for the appellant, brings to my notice the decision of the Supreme Court in Jai Chand Sawhney v. Union or India (1970) 2 S.C.J. 288 and contends that by that judgment the decision of this Court referred to already must be deemed to have been impliedly over-ruled and that therefore, following the decision of the Supreme Court, I must hold that the claim of the respondent is barred by limitation. The learned Counsel also brings to my notice two decisions of two other High Courts of this country, the first being Jagdish v. Union of India A.I.R. 1969 Punj.&Har.; 441 holding that a public servant, after his dismissal or removal has been declared to be unlawful, can claim wages of salary only up to a period of three years and two months in lieu of the notice period under Section 80, Civil Procedure Code, from the date when the cause of action accrued. In this connection, the Full Bench referred to the decision of the Madras High Court referred to above and declined to follow the same. The other decision is that of the High Court of Madhya Pradesh Union of India v. P.V. Jagannath Rao A.I.R. 1968 Madh.204. That decision has also taken the view that an order of dismissal of a civil servant passed in violation of Section 240 of the Government of India Act, 1935, or Article 311 of the Constitution, is inoperative and void from the very beginning and has no legal effect whatsoever, that when in a suit such an order is declared to be inoperative and void, the declaration of the Court does not make the order void but merely declares or exposes the already existing infirmity in the order. The Court proceeded to say that such an order of dismissal being ineffective from its inception, the civil servant continues in service in spite of the order and it is not necessary that the order should be cancelled or the civil servant should be reinstated and that an order cancelling the dismissal or reinstating the civil servant would be entirely superfluous, and if an order of reinstatement is passed it does not furnish a new cause of action for recovery of salary, and the cause of action for the salary accrues every month. In this view of theirs, they also did not follow the decision of this Court already referred to.

8. Mr. Srisailam relies upon these decisions and contends that the suit instituted by the respondent-plaintiff is barred by limitation except for the period of three years immediately preceding 23rd April, 1962. In view of certain peculiar features present in this case, I am unable to hold that any of the decisions cited applies to the present case. As a matter of fact, I have already referred to the communication dated 2nd February, 1961 which has been marked as Exhibit A-6, which reinstated the respondent in service with immediate effect and therefore the very contention of the respondent that he was reinstated only by an order on 23rd April, 1962 is erroneous. The relevancy of the order dated 23rd April, 1962 appears only from the communication of the Railway dated 8th February, 1963, marked as Exhibit A-3. I have already referred to Exhibit A-7 dated 7th June, 1962 which states that the period between the date of dismissal from service and the date of reinstatement, viz-, 21st March, 1957 A.N. to 7th February, 1962, has been regularised as duty. Thus, it will be seen that there are two orders, one of reinstatement, viz., Exhibit A-6, dated 2nd February, 1962, and the other treating the period from the date of dismissal till the date of reinstatement as on duty, as is evidenced by Exhibit A-7. This Exhibit A-7, as pointed out already, contains the further statement that the respondent would be eligible for pay and allowances for the intervening period subject to the law of limitation. It is no doubt true that the Supreme Court in the decision referred to already has held that at page 289.

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 allowance of a railway servant who is removed or dismissed from service cease 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 the salary, which he could, but for the illegal order of dismissal have earned.

I am of the opinion that this decision does not necessarily lead to the conclusion that the suit of the respondent in the present case is barred by limitation. True, once the order of dismissal is set aside, it is as if that the public servant concerned all along continued to remain in service and no further order on the part of the authority reinstating the public servant in service is necessary. But, nonetheless, some order on the part of the competent authority is necessary to give a posting to the public servant concerned. Further, there is the problem as to how the period under suspension should be treated in case the order of dismissal is preceded by suspension as it happened in the present case.

Rule 2044 of the Railway Establishment Code states:

When a railway servant who has been dismissed, removed, compulsorily retired or suspended is reinstated, the authority competent to order the reinstatement shall consider and make a specific order:

(a) regarding the pay and allowance to be paid to the railway servant for the period of his absence from duty; and

(b) whether or not the said period shall be treated as a period spent on duty.

(2) Where the authority mentioned in Sub-rule (1) is of the opinion that the railway servant has been fully exornerated or, in the case of suspension that it was wholly unjustified, the railway servant shall be given the full pay and allowances to which he would have been entitled, had he not been dismissed, removed, compulsorily retired or suspended as the case may be.

(3) In other cases, the railway servant shall be given such proportion of such pay and allowances as such competent authority may prescribe,

Provided that the payment of allowances tinder clause (a) or clause (3) shall be subject to all other conditions under which such allowances are admissible;

Provided further that such proportion of such pay and allowances shall not be less than the subsistence and other allowances admissible under Rule 2043 (P.R. 53).

(4) In a case falling under clause (2) the period of absence from duty shall be treated as a period spent on duty for all purposes.

Perhaps it was pursuant to this provision, Exhibit A-7 was sent to the respondent herein. However, no material was placed before me to show as to what order was passed by the competent authority with regard to the period of suspension. In view of these peculiar facts of this case, the question for consideration is whether the suit of the respondent was barred by limitation or not.

9. Even though the decision of the Supreme Court has held that Article 102 of the Limitation Act applied and the right of the public servant to salary accrued from month to month, still, I am clearly of the opinion that Exhibit A-7 constitutes an acknowledgment of liability on the part of the appellant of its liability to pay salary to the respondent herein for the period from 21st March, 1957 to 7th February, 1962; and, therefore, the bar of limitation is saved. No doubt, the very communication Exhibit A-7 states that the respondent would be eligible for pay and allowances for the intervening period 'subject to the law of limitation'. In my opinion, such a statement is totally of no avail. The law of limitation has no application whatever to the obligation of a master to pay salary to his servant and the law of limitation is applicable only to proceedings in Court and therefore the reference to law of limitation in Exhibit A-7 is clearly erroneous. Once the competent authority had decided to reinstate the respondent in service and treat the period from the date of dismissal to the date of reinstatement as on duty, it was the patent and obvious duty of the appellant to pay the salary due to the public servant concerned for the period in question; and, there being no law prescribing the period for which alone the appellant could pay the salary to the respondent herein the statement contained in Exhibit A-7 must be considered to be an unconditional acknowledgment of the liability of the appellant to pay to the respondent the salary due to him for the intervening period. As pointed out already, as soon as the competent authority passed orders reinstating the respondent in service, treating the period from the date of dismissal to the date of reinstatement as on duty, it was the obvious duty of the appellant to pay the salary due to the respondent for the relevant period, and it committed an error in not paying the salary. The appellant cannot take advantage of its own wrong to defeat the just claim of the respondent. This aspect of the claim of the respondent being saved by the acknowledgment of the appellant referred to, has been elaborately considered by Ramamurti, J., in S. Sethuraman v. Union of India, owning S. Railway (1970) L.L.J. 632. The principle of 'acknowledgment' enunciated by the learned Judge clearly applies to the facts of this case as mentioned by me above. The said decision of Ramamurti, J., has been approved by a Bench of this Court (Sadasivam and Ramaswami, JJ.) in Uniou of India owning the Southern Railway by the General Manager, Southern Railway v. G.A. Krishnaswamy A.S. Nos. 489 of 1964 and 29 of 1965. I may point out that the Supreme Court had no occasion to deal with this question of 'acknowledgment'. In that case, the railway employee concerned instituted the suit for setting aside the order of his removal on the grounds that the same was made by an authority subordinate to the appointing authority and that he was not given an opportunity to show cause against the action proposed to be taken in regard to him as required by Section 240 of the Government of India Act, 1935. In the very same suit he claimed a decree for Rs. 20,399-9-0 being the amount of arrears of salary and damages for wrongful termination of employment. Consequently, the Supreme Court had no occasion to consider a case in which after the order of dismissal or removal was set aside by proceedings taken in this behalf, independent, proceedings were subsequently taken to recover the arrears of salary and during the interval the competent authority having passed orders reinstating the Government servant and treating the period between the date of removal or dismissal and the date of reinstatement as on duty. In view of this position, I share the observations made by Ramamurti, J. reserving the question for consideration, if the matter is directly and exclusively governed by Rule 2044 of the Railway Establishment Code.

10. However, I may point out that the claim of the respondent for the balance of salary for the period during which he was under suspension, stands on a different footing As I have pointed out already, under Rule 2044 of the Railway Establishment Code, the competent authority has to decide, having regard to the circumstances of the case, as to how the period of suspension should be treated and what pay and allowances should be paid to the respondent during that period. No material whatever has been placed before the Court to show how the competent authority treated the said period of suspension and what order that authority passed with regard to the pay and allowances due to the respondent during that period, None of the documents produced before the Court also contains any acknowledgment with regard to the balance of the salary for the period of suspension. In the absence of any such material, the principle laid down by me, as above, which applies to the case of salary for the period from the date of dismissal till the date of reinstatement, will not apply to the period of suspension.

11. Before parting with the ease, I must express my respectful agreement with the observations made by Ramamurti, J., in paragraph 17 of his judgment. Once the respondent herein was acquitted of the offences charged against him, and the order of dismissal passed on the earlier conviction, was set aside by this Court, the obvious conclusion is that the respondent herein was unlawfully kept away from service for no fault of his. In this case, there is a further injustice. The respondent was dismissed from service solely on the basis of his conviction by the criminal Court. That conviction was set aside by this Court on 30th July 1958. It was the plain duty of the Railway Authorities to set aside the order of dismissal and reinstate the respondent, immediately, since the sole basis for the order of dismissal had ceased to exist. The authorities did not do any such thing and even the request of the respondent in this behalf was rejected. If the authorities had reinstated him then, even on the assumption that the law of limitation applied as between them, even the period of suspension would have fallen within the period of three years. They waited for this Court to quash the order of dismissal in the writ petition. However, once he was reinstated and the authorities had decided to treat the period from the date of dismissal till the date of reinstatement as on duty, it was the most elementary and plain obligation which they owed to the respondent to pay him the salaries and allowances due for the said period without any delay and without raising any obstacles. The authorities could not have expected the respondent to have filed a suit for recovery of the arrears of salary so long, as the order of dismissal was in force. Even far the sake of saving his right to recover the salary from being barred by limitation, if he had been instituting suits every three years for recovery of the arrears, of salary, on incurring considerable expenditure, the suits would have been summarily dismissed, because, so long as. the order of dismissal stood, no Court could have granted him a decree for. the arrears of salary. It is too much to expect of a poor employee who has been dismissed from service, to go on filing suits and preferring appeals incurring huge expenditure and keeping the matter alive in the hope and confidence that he will ultimately succeed in his attempt to have the order of dismissal itself cancelled or quashed by the Court. Even assuming, if such a thing happens, ultimately the Railway will have to pay not only the salaries due to the servant concerned but also the expenses which he incurred in prosecuting , his claim for arrears of salary, which necessarily have to come only out of the public funds. Certainly, that should not have been the attitude of an authority like the Government itself with reference to its own employees. As I pointed out already it is really surprising that the authorities should have taken up the stand, when they sent the communication marked Exhibit A-7, that the respondent would be paid his pay and allowances 'subject to the law of limitation'. I may mention even at the risk of repetition that the law of limitation has nothing whatever to do with the mutual rights and obligations between the master and a servant as to the period for which the master could pay the wages or salary due to the servant and that the law of limitation governs only proceedings in Court if and when the matter has not been settled as between themselves. As I pointed out already, there being no law or rule preventing a master like the appellant, from paying the salary due to a servant like the respondent, in excess of a period of three years., if the same had not been paid as and when it accrued due, for some reason or other, certainly it was not proper on the part of the Railway authorities to inform the respondent that ho would be paid salary only for a period of three years from the date when the competent authority took the decision to treat the period between the date of dismissal and the date of reinstatement as on duty and thereby implying that the respondent should have filed a suit earlier for fecovszy of arrears of salary, even when the order of dismissal was in force.

12. In the result, the second appeal is dismissed with the modification that the decree passed in favour of the respondent will be restricted to the right of receive the salary for the period from 21st March, 1957 A.M. to 7th February, 1962. The respondent will be entitled to proportionate costs in the two Courts below. Since the respondent is not represented before this Court, there will be no order as to costs in the second appeal. No leave.


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