P.B. Mukharji, J.
1. This is a plaintiff'sappeal from the judgment and decree of S. K. Dutta, J. dismissing the plaintiff's suit with costs on the ground of limitation under Article 115 of the Limitation Act.
2. The plaintiff sued two defendants the first is the Indian Airlines Corporation and the second defendant is Bharat Commerce and Industries Limited. The claim in the plaint is for damages for wrongful dismissal. The plaintiff claims salary from November 1952 to 6th February 1956 at the rate of Rs. 16840-0 per month including dearness allowance amounting to Rs. 6611-5-0 and other benefits of service including air passage amounting to Rupees 5001 and travelling allowances amounting to Rs. 1502. The total claim of the plaintiff is for Rs. 13,114-5-0.
3. The actual reliefs claimed by the plaintiff are interesting. His claim is for a declaration that the order contained in the letter dated 2nd January 1953 terminating the plaintiff's service to be null and void, illegal, wrongful and a nullity with no effect. The second relief is for an order that the order contained in the letter of the 2nd January 1953 be annulled and set aside. The third relief is for a declaration that the plaintiff's service was not terminated. The next part of the relief claimed is for a declaration that the plaintiff has become, as from the appointed date under Section 16 of the Air Corporations Act, 1953, an employee of the Indian Airlines Corporation. Series of alternative prayers are made. The first is for Rs. 1,55,442 from the defendant corporation or from the defendant company as damages for wrongful dismissal, in addition to the said sum of Rupees 13,114-5-0. Incidental reliefs regarding Provident Fund money, injunction etc. are also claimed.
4. Eight Issues were raised before the learned trial Judge. The issues were as follows:
1. Was the dismissal of the plaintiff illegal, void or nullity as alleged in paragraph 19 of the plaint?
2. Was the termination of the plaintiff's service by the letter dated 2nd January 1953 wrongful?
3. In view of the provisions of Air Corporations Act, 1953 is the defendant No. 2 Viable to the plaintiff in any way?
1. Was the plaintiff in employment of Messrs. Bharat Airways Ltd. immediately before August 1, 1953, as alleged in paragraph 20 of the plaint?
5. Did the defendant No. 2 comply with the requirements of Section 22 of the Air Corporations Act, 1953?
6. Has the claim of the plaintiff become barred by limitation?
7. Is the plaintiff entitled to Provident Fund due from the defendant No. 1 as alleged in paragraph 22 of the plaint?
8. To what other relief, if any, is the plaintiff entitled?
5. On behalf of the plaintiff, the plaintiff himself gave evidence as well as one Dr. Sarkar. On behalf of the defendant company, evidence was given by Chiranjilal Kezriwal, the then Superintendent of Stores, Malhar Kasinath Paralika, the then Chief Store-Keeper, Mohanlal Chandalia, the then Deputy Chief Store-Keeper and Iswari Prosad Saha, Cashier of defendant No. 2. There was documentary evidence in the shape of correspondence and documents.
6. The learned Judge came to the conclusion ou Issue No. 1 that the dismissal was not illegal or void or a nullity. But he held on issue No. 2 that the dismissal was wrongful. On the third issue he held that the defendant company was not liable in so far as they supplied information and particulars of the arrears of salary amounting to Rs. 113/14/- and therefore the defendant company not having supplied the information would be liable for the difference between the total amount of salary due less the said sum of Rs. 113-14-0. The learned Judge also decided that if the suit had succeeded otherwise, the defendant corporation would have been liable for damages under Section 17(4) of the Air Corporations Act and the defendant company would not have been liable therefor. On the 4th issue the learned trial Judge found that the plaintiff was dismissed on the 7th January 1953 at the latest and was, therefore, not an employee of the defendant company immediately before August 1953 as alleged in paragraph 20 of the plaint. On the 5th issue he held that the defendant company did not comply partly with the requirements of the Air Corporations Act in respect of a part of the salary that was due. On the 6th issue, the learned trial Judge held that the suit was barred under Article 115 of the Limitation Act. On the 7th issue the learned Judge came to the finding that there was hardly any evidence on the point to give relief to the plaintiff and therefore, answered the issue against the plaintiff. In the result, he dismissed the suit with costs.
7. The main controversy is naturally based on the legality or otherwise of the termination of the plaintiff's service by the defendant company by its letter dated the 2nd January, 1953. It will, therefore, be appropriate to set out that letter at the outset. The letter is marked Exhibit B and reads as follows:
From 'Bharat Airways LimitedAdministrative Manager ToDept. Sri S. N. Shukla,Ref. ADM/6/47 8/1, Balmukund MackerRegd with A/D, Road. Calcutta--126.96.36.199.
On a careful scrutiny of the bills and accounts submitted by you in respect of different items of money received by you from the company, we find that you have committed criminal breach of trust in respect of Rupees 4,381-13-3 (Rupees four thousand three hundred and eighty-one and annas thirteen and pies three) only. Instead of explaining your conduct in this respect you have also absconded yourself from office on the plea of illness. Since then we have made over the case to the police and the police has started investigation against you.
Under the circumstances your services with this company are dispensed with from the date of your absence from office i.e. from 22-12-52.
Please return immediately all our documents which are with you. Some of which are mentioned below:--
(1) License to transact Custom House business as a Sirkar of our concern.
(2) License to transact business in the Port of Calcutta as our Sirkar granted by the Port Commissioners.
(3) Rubber Stamp of Bharat Airways Ltd.
(4) Bill of entry for consumption forms.
(5) File of Ball bearing correspondence.
(7) Import Licenses, and many other documents belonging to the company.
If you will not return them immediately and if the Company suffers any kind of loss, damage or demurrage we shall hold you responsible for all kinds or loss, damage or demurrage which please note.
Sd. K. C. Gupta
for Administrative Manager.'
8. The letter proceeds then to say that the plaintiff instead of explaining his conduct, absconded from the office on the plea of illness. That seems to make it clear that the plaintiff really discharged himself from service by not attending office and that his employer, Bharat Airways Ltd. took the view that his leave application and the excuse of illness were mere device or plea. Then the letter proceeds to inform the plaintiff that Bharat Airways Ltd. had made over the case to the police and the police had started investigation against the plaintiff. The material portion of the letter then states 'Under the circumstances your services with this company are dispensed with from the date of your absence from office i.e., from 22-12-52.'
9. The rest of the letter calling for return of documents is not material for the purpose of the present case.
10. On behalf of the appellant Mr. Roy attacks this letter on the ground that it is an attempt to dismiss the plaintiff, an employee, retrospectively which cannot be done. He further submits that the letter cannot be a letter of dismissal at all if it is partly bad on the ground of retrospective effect because according to him the dismissal cannot be made prospectively good as from the date of the letter. This argument requires careful consideration. The learned trial Judge relied on the decision of the learned Single Judge of this Court in Damodar Valley Corporation v. Provat Roy, reported in (1956) 60 Cal WN 1023. That case takes the view that there cannot be any order of dismissal with retrospective effect, but the order of removal can speak only as from the date of the order. In that case the order of removal was treated as a notice of dismissal as from that date. There the letter of removal was dated the 21st May, 1.949 purporting to remove the person concerned with effect from the 28th of April, 1949. It was held that the removal was good and took effect from the date of order of removal, namely, 21st May, 1949 and not the 28th April, 1949. This view may be supported by the observations of Lush, J. in the English Court of Appeal in Hanley v. Pease and Partners, Ltd., reported in (1915) 1 KB 698 at p. 705.
11. It is noticeable that in that Calcutta case there was a suspension. The letter of suspension was dated the 27th April, 1949. The Court naturally, therefore, held that the suspension was not dismissal and until the servant was dismissed from office he continued his employment. Naturally it was pointed out there that where the master chose to continue the servant in his employment there was no right to suspend him or to deprive him of any part of the wages. Reference was made in that case to the English decision in Warburton v. Taff Vale Rly. Co. reported in (1902) 18 TLR 420. Be it noted here that there was no suspension at all in this present case before us. In fact the plaintiff without being actually granted leave absented himself from office from the 22nd December, 1952.
12. Mr. Roy for the appellant has criticised the above Calcutta decision and has relied on the observation of the Division Bench of this Court in the case of Sudhir Ranjan Halder v. State of West Bengal : (1961)IILLJ283Cal made at page 630 where the Division Bench takes the view that suspension or dismissal or removal from service with retrospective effect has always been condemned by the Court as illegal and invalid and referred to many decisions of this Court including the one quoted above. The Division Bench expressed doubt on the proposition that if an order for dismissal was made with retrospective effect, the prospective portion of the order always stood saved. At page 630 of that report Banerjee, J. who delivered the judgment of the Division Bench observed as follows:
'The difficulties in the way of laying down such a proposition are many. A court of law does not sit in appeal over an order of dismissal made by an executive authority in a disciplinary proceeding and as such has no power to modify such an order. If such an authority passes an order of dismissal with retrospective effect, it may not be easy to separate the retrospective portion from the prospective portion of the order, because if the authority had not made the order retrospective, it is difficult to say from which other date the authority would have made the order effective. It may not always be that otherwise the authority would have made the order effective from the date of the making of the order it might as well be that the authority would have otherwise made the order effective from the date of the service of the order on the delinquent. Since a Court of law has no power to make a proper order for dismissal on behalf of the executive authority and since indication may be lacking in the impugned order itself, as to from which other date it would have commenced, had it not been retrospective, it may not always be easy to draw a line between the retrospective and the prospective part of the order and to uphold the prospective operation of the order.'
13. Relying on these observations Mr. Roy for the appellant contends that the whole of this order of dismissal contained in the letter datedthe 2nd January, 1953 is illegal and is a nullity. We are unable to accept that submission. We shall state the reasons briefly.
14. We see no difficulty in the facts of this case to give validity to this letter dismissing the appellant from service prospectively as from the date of the letter, namely, the 2nd, January, 1953. This is not a case where the Court can be said to be making a new order of dismissal terminating the appellant's services. If the employer by a letter terminates the services of his employee retrospectively, then it is difficult to see why at least from the date of the letter prospectively the dismissal should not be effective. If from a past date the dismissal was to take place according to the employer's intention, all the move so would it be the intention of the employer that it should at least continue from a subsequent date. No question here arises about the intention of the employer or the authority, nor does any question arise about the termination being effective from the date of the service of that order.
15. The second reason is one of construction of this particular letter of termination to find out if it is really in essence a case of retrospective termination at all. In our opinion this is not a case of retrospective termination in that sense at all The letter only is an ex post facto recognition of an event that had already taken place. Naturally the event is past. Recognition of the event is equally naturally ex post facto in that sense of the term. It is not a retrospective termination of the service of an employee in the sense that the employee while he was in service never knew that his services had been terminated. The fact of the matter is that here the employee really in effect and in essence discharged himself by absenting himself without leave from his duty. He never attended the office or rejoined the services of his employer from the 22nd December, 1953. His employer did not grant any leave to him.
15-A. The interesting case of Turner v. Mason, reported in (1845) 14 M and W 112 and the observation of Pollock, C. B. at pp. 115 to 116 are relevant. There in that case a maid servant absented herself from duty only for a day to see her ailing sick mother but that was against the order of her employer. She came to rejoin within a day, but she was refused employment by the master. At page 116 of that report Pollock, G. B. made the following observations:
'She bad no right, against his will, to leave his service at all. The plea is therefore a good plea. Then the replication states, that the mother of the plaintiff was ill, and in peril of death, and that, believing herself likely to die, and being anxious to see the plaintiff before her death, she had requested the plaintiff to visit her, whereupon the plaintiff requested the defendant to give her leave to absent herself for that purpose; and because he wrongfully refused it, she did absent herself for that purpose, for the time mentioned in the pica. It does not state that she gave the defendant any notice of the purpose for which she desired to absent herself, or that her doing so was of advantage or use to her mother, butmerely that it was to visit her that she might see her before her death. It is very questionable whether any service to be rendered to any other person than the master would suffice as an excuse; she might go but it would be at the peril of being told that she could not return. The plea being therefore good, and the replication bad in form, our judgment must be for the defendant.'
With a view to get out of this difficulty the submission made on behalf of the appellant was that he actually applied for leave and got leave and therefore, he did not discharge himself by refusing to attend to his duties or by absenting himself without leave. The situation is remarkable. In fact no leave was formally or even informally granted by the appellant's employer, Bharat Airways Ltd. The letter dated the 22nd December, 1952 was addressed by the appellant to the Superintendent of Stores and Accounts, Bharat Airways Ltd., stating that the appellant was suffering from cold and fever, and 'So kindly grant me sick leave for a week, i.e. from 22nd December 1952 to 27th December 1952 and oblige.' No formal leave was granted and no reply was sent. Thereafter on the 27th December, 1952, the appellant wrote to say that he was not keeping good health and that Doctor had advised him to take rest and he states in that letter-
'Therefore I request you to grant me ray earned leave i.e. privilege leave for one month in continuation of my previous application i.e. from 29th December, 1952 to 29th January, 1953 and oblige.'
He promised in that letter to intimate his change of address when he went out for change, to the employer but he never kept the promise. The next letter is a letter of the company which was posted but recalled but was used by the appellant himself being a disclosed document of the defendants. That letter is dated the 31st December, 1952 informing the applicant that his application requesting For extension of his leave from 29th December, 1952, for a period of one month, could not be sanctioned as he had not sent the medical certificate. He was, therefore, asked to report at his earliest in the office for medical examination by the company's doctor and the leave application would be considered in the light of the Medical report. It was distinctly stated in that letter 'Till then you will be treated as absent from your duties.'
16. It may be pointed out also in this connection that this episode of asking for leave began after he had signed on the 24th September, 1952 in favour of the Company a statement showing 'I hereby confirm that the sum of Rs. 4762-14-0 outstanding against me as on 31st July 1952 is correct. I have checked my accounts and all the entries have been found correct.' Then the Company wrote to him that letter of the 2nd January, 1953 terminating his service from the date of his absence, i.e. from the 22nd December, 1952.
17. On these facts the question arises had the plaintiff appellant any leave at all, could he be said to have been on leave then his services were terminated. The learned trial Judge took the view that the appellant could not be said tobe absent without leave from the 22nd December, 1952 to the 29th December, 1952. The learned trial Judge has observed in the judgment under appeal as follows:
''Hence, in any event, it cannot be said that the plaintiff absented without leave from the 22nd December, 1952 to 29th December 1952, as the plaintiff had made an application for casual leave on the 22nd December 1952 and the defendant company chose not to send any reply to the same.'
Therefore, he came to the conclusion that
'the absence from service without leave fromthe 30th December, 1952 to 7th or 8th January1953 is not a sufficient ground for dismissalfrom service.'
18. Two questions appear to confuse the arguments on the point. The dismissal from service was put on the ground that the appellant had committed criminal breach of trust. It was not put on the ground that he refused to attend to his duties. The absence from duty was mentioned in the letter of dismissal only with a view to show the date from which he had discharged himself by his own conduct of being away from duty without leave. To leave the Master's employment without his formal permission is repudiation of the contract of service by the servant and on the authority of (1845) 14 M and W 112 quoted above the servant really discharges himself by such a conduct from the date when he fails to attend without the formal sanction of the master.
19. Strictly speaking therefore on the facts of this case it is not a case of retrospective termination of service at all.
20. In any event, on these facts, therefore, we are of the opinion that this letter terminating the plaintiff's services was certainly good prospectively from the date of that letter.
21. Now coming to the nature and character of the suit it will be appropriate in the first place to examine the status of the two defendants who have been sued in this plaint. The first defendant is the Indian Airlines Corporation, a body corporate under Section 3 of the Air Corporations Act, 1953. The second defendant is Messrs. Bharat Commerce and Industries Ltd. Taking up the case of the second defendant described as the defendant company it is necessary, to examine in what capacity the defendant company is sued in the suit and whether it has any liability or whether there is any cause of action against this defendant company.
22-23. The defendant company Bharat Commerce and Industries Ltd. did not employ the plaintiff appellant. This company was not his master. It was not in existence at the time when the appellant got his employment. The appellant's employer was Bharat Airways Ltd. This Bharat Airways Ltd. is one of the companies expressly mentioned in Section 2(v) of the Air Corporations Act, it being one of the existing Air Company which was taken over by the first defendant, Indian Airlines Corporation under the Air Corporations Act of 1953. The first defendant, Indian Airlines Corporation, did not take over the second defendant company, Bharat Commerce and Industries Ltd. as thatwas not an existing air company within themeaning of the Air Corporations Act. It is, therefore, difficult to see how and in what capacity the second defendant Bharat Commerce and Industries Ltd. can be sued and can be said to owe any liability to the plaintiff appellant.
24. The defendant Bharat Commerce and Industries Ltd. can only have a liability if it was the same company as Bharat Airways Ltd. That was what was pleaded in paragraph 2 of the plaint where it is expressly pleaded that the former name Bharat Airways Ltd. was changed to the name of Bharat Commerce and Industries Ltd. in or about the 10th January, 1956 and that it was merely a change of name and nothing else. If it is a change of name and nothing else then of course under the present Section 23(3) of the Companies Act, such change of name shall not affect any rights or obligations of the company and any legal proceedings which might have been continued or commenced by or against the company by its former name may be continued by or against the company by its new name. This particular pleading in paragraph 2 of the plaint is admitted in the written statement.
25. If that be so then Section 17(4) of the Air Corporations Act makes the suit bad against the company, because it expressly provides as follows:--
'Subject to the other provisions contained in this Act, any proceeding or cause of action pending or existing immediately before the appointed date by or against any of the existing air companies in relation to its undertaking may as from that date be continued and enforced by or against the corporation in which it has vested by virtue of this Act as it might have been enforced by or against that company if this Act had not been passed, and shall cease to be enforceable by or against that company, its surety or guarantor.'
Now the plaintiff appellant is making the defendant corporation liable under this very section and in the same breath it cannot make the company any more liable because such a claim is expressly said to 'cease to be enforceable by or against that company.' The suit, therefore, against that company is bad as the claim is unenforceable against that company. So far as the plaintiff appellant's claim against the defendant company is concerned that is the end of the matter.
26. The certificate of registration of the defendant company, Bharat Commerce and Industries Ltd. however, is a curious piece of document. The certificate reads as follows:--
In the office of the Registrar of Companies under Act 8 of 1913 in the matter of Bharat Commerce and Industries Ltd.
I do hereby certify that pursuant to the provision of Section 11 Sub-section (5) Act VII of 1913 Indian Companies Act and under Order of the Government of India, Ministry of Defence conveyed by their No. 28(62)--CL/65, Department of Company Law Administration dated 29/30 December, 1955 to the address of Messrs. Bharat Airways Ltd., 8 Royal Exchange Place, Calcutta,the name of Messrs. Bharat Airways Ltd. has this day been changed to Bharat Commerce and Industries Ltd. and the said company has been duly incorporated under the provisions of the said Act.
Dated this the 4th day of January one thousand nine hundred and fifty six.'
27. This certificate makes strange reading. Bharat Airways Ltd. was a limited company and a distinct legal entity. The whole of that undertaking was an existing Air Company. Under Sections 16 and 17 the undertaking of the then existing Air Company Bharat Airways Ltd. vested in the Indian Airlines Corporation including all assets, rights, powers, authorities and privileges and all property, moveable and immovable including lands, works, workshops, aircraft, cash balances, reserve funds, investments and book debts and all other rights and interests arising out of such property. That being so, the substratum of Bharat Airways Ltd. disappeared and it could not rename itself and reappear under the new name of Bharat Commerce and Industries Ltd. Therefore, provision is made under Section 28 of the Air Corporations Act for winding up of the existing Air Company such as Bharat Airways Ltd. No doubt Sections 21 and 22 of the present Companies Act permit change of the name of the Company according to the procedure laid down there but that change of name can only take place where there are no such statutory provisions as in Sections 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Air Corporations Act under Chapter IV of the said statute. The registration and incorporation of Bharat Commerce and Industries Ltd. in those terms may, therefore, be open to serious statutory challenge as being an evasion of the Air Corporations Act of 1953.
28. However, serious that consideration may be in affecting the legality of the constitution and incorporation of the defendant Bharat Commerce and Industries Ltd., even then it seems to us that there cannot be any liability of Bharat Commerce and Industries Ltd. to the plaintiff appellant and therefore, the suit must against that Company must fail. The learned trial Judge's finding that the defendant company, Bharat Commerce and Industries Ltd. is liable for the sum, of Rs. 113-14 on the ground of arrears of salary, therefore, can under no circumstances be maintained under Section 17(4) of the Air Corporations Act or otherwise. The duty of the existing Air Companies to supply particulars under Section 22 of the Air Corporations Act is as between the existing Air Company such as Bharat Airways Ltd. and the Indian Airlines Corporation and cannot be the ground for liability of a decree in favour of the Appellant plaintiff against such a company for that sum, because the payment of the amount would normally be the liability of the Indian Airlines Corporation and of nobody else under Section 17(4) of the Air Corporations Act.
29. It will now be appropriate to consider whether the first defendant, Indian Airlines Corporation has any liability in the matter of the claim of the plaintiff appellant. under Section 17(4) of the Air Corporations Act any proceeding or cause of action pending or existing immediatelybefore the appointed date by or against the existing Air Company can continue against the Airlines Corporation. This of course is 'subject to the other provisions contained in this Act.' The relevant provision on this point is Section 20 of the Air Corporations Act. Section 20 of the Air Corporations Act makes provision regarding officers and employees of existing Air Companies. Sub-section (1) of Section 20 of the Air Corporations Act in its material terms reads as follows:
'Every officer or other employee of an existing Air Company *** employed by thatcompany prior to the first day of July, 1952, andstill in its employment immediately before theappointed date shall, *** become asfrom the appointed date an officer or otheremployee *** of the Corporation inwhich the undertaking has vested and shall holdhis office or service therein by the same tenureat the same remuneration and upon the sameterms and conditions and with the same rightsand privileges etc.'
The significant words in this section are that the employee must be (1) employed by the company prior to the 1st July, 1952 and (2) still be in its employment immediately before the appointed date which is the 1st August, 1953. It is, therefore, essential for the appellant to establish not only that he was an employee of Bharat Airways Ltd. on the 1st July, 1952, but that he continued to be in its employment immediately before the 1st August, 1952. The question then is, has he satisfied the second test? Can he be said to be 'still in the employment before the appointed date.' His services were dispensed with from the 2nd January, 1953. Therefore, in ordinary parlance he was not in his employment 'immediately before the 1st August, 1953'. Therefore, the defendant Indian Airlines Corporation has no liability or obligation to take the plaintiff appellant over to its services under Section 20(1) of the Air Corporations Act.
30. The words 'still in its employment' in Section 20(1) of the Air Corporations Act can only be construed as in fact employed. It is de facto employment, that is meant there because this is the provision for taking over the employees. Employees who have been dismissed rightly or wrongly cannot come within the purview of that expression 'still in its employment.' Employment is the physical condition and an objective condition and it is in that sense that the word 'employment' has been used in the expression 'still in its employment' in Section 20(1) of the Air Corporations Act. The submission that even if an employee has been in fact dismissed but the Court holds that he has been wrongly dismissed, then such an employee under wrongful dismissal should still be construed as within 'employment' under Section 20(1) of the Air Corporations Act, cannot in our opinion succeed, in this context. If the dismissal is wrongful all that the employee can get is damages for such wrongful dismissal from the employer or appropriate authorities, but he cannot get back his employment in the sense that the Airlines Corporation should take over such an employee. In this view of the matter the plaintiffs suit against the Indian Airlines Corpora- tion must fail for it has no liability to take him over under Section 20(1) of the Air Corporations Act as interpreted by us.
31. It will not be on of place to mention here that this plaintiff was prosecuted in the criminal court and was convicted in the first instance. He was, however, acquitted by this Court. Even that will not make him satisfy the test--'still in its employment' in Section 20(1) of the Air Corporations Act. On this point the proviso to Section 20(1) of the Air Corporations Act is relevant. That proviso gives an option to the employee by notice in writing not to become an employee of the Corporation. The option is of the employee and not of the Corporation. See in this connection Jeshtamani Gulabrai Dholkia v. Scindia Steam Navigation Co. Bombay, reported in : (1961)ILLJ318SC . But the more relevant provision is Sub-section (2) of Section 20 of the Air Corporations Act, It reads as follows:
'Notwithstanding anything contained in Sub-section (1), the Central Government may direct either of the Corporations in which the undertaking of any existing air company has vested to take into its employment any officer or other employee who was employed by the existing air company prior to the first day of July, 1952, and who has been discharged from the service in that company on or after the said date for reasons which, in the opinion of the Central Government appear to be inadequate for the purpose, and where the Central Government issues any such direction, the provisions of Sub-section (1) shall apply to such officer or other employee as they apply to any officer or other employee referred to therein. '
Now Sub-section (2) of Section 20 is clearly against the plaintiff appellant's claim.
Here is a statutory provision which expressly provides for the case of an employee who although was employed prior to the 1st July, 1952, in the existing air company but who had been discharged from service. That applies to the case of the appellant but then what does this Sub-section (2) say. It says that in such a case the Central Government has to be of the opinion that the reasons for the discharge appear to be inadequate and if so, the Central Government can then issue a direction that Sub-section (1) of Section 20 shall apply to the employee, namely, that he should be taken over. The Central Government in this case has neither expressed any opinion stating that the reasons for the discharge of the plaintiff appellant were inadequate nor has it in his case issued any direction to the defendant, Indian Airlines Corporation to apply Section 20(1) and take him into the services of the Corporation. When the statute provides for a way in a contingency the courts cannot find other ways to take over. The statute is only provision. The taking can only be under and in terms of the statute. In case therefore, of an employee who was in the employment prior to the 1st July, 1952, but who had been discharged, the only way he can be taken over under this statute is by satisfying the two tests, namely, (1) that the Central Government must be of the opinion that the reasons for his discharge are inadequate and (2) that the Central Government must issue a direction upon the defendant, Indian AirlinesCorporation that Section 20(1) of the Air Corporations Act should be applied to such employment. The plaintiff appellant never approached the Central Government either to express an opinion that the reasons for his discharge were inadequate or to issue a direction under Section 20(1) in his case to take him over.
32. In this view of the matter and having regard to our interpretation of the Air Corporations Act this suit against the defendant, Indian Airlines Corporation must fail for the above reasons.
33. What remains for us to consider now is the point of limitation which loomed large at the trial court and on which the trial court dismissed the plaintiffs suit.
34. It is necessary to clear the ground at the beginning about certain facts. It is contended by the appellant that he received the letter of dismissal dated the 2nd January, 1953 some time in the middle of February, 1953 and, therefore, his suit filed on the 6th February, 1956 is within the three-year limitation even if Article 115 of the Limitation Act applied.
35. This argument of the appellant is based on a fallacy. The fallacy is that it seems to have taken the starting point of limitation of a years from the date when the employee chose to open the letter of dismissal. The facts of the case are interesting.
36. According to the plaintiff appellant the letter dated the 2nd January, 1958 was duly addressed to him to his residence in Calcutta but what happened was that his step brother received it and though that step brother Jived in the same premises they were supposed to be in different mess. But the step brother did nothing step-brotherly in this matter because it is admitted that he duly sent the letter to the plaintiff appellant at Banaras where the plaintiff appellant was supposed to have gone. This step brother adds colour and glamour by the fact that he was also an employee of the Bharat Airways Ltd. and now is in service under the Indian Airlines Corporation to which the plaintiff appellant aspired to go. The evidence of the plaintiff is that the letter was sent to Banaras by the stepbrother on the second week of February, 1953 when he was out of Banaras and then when he came back he chose to open this letter. This will be apparent from the answer to the Court's question Nos. 85 to 92 specially the answer to the question 92 where the plaintiff said:
'I remained in Banaras for one month; thereafter I went home to my native place, to see my father. I returned from my native place to Banaras on the second week of February and there I received the letter which was sent there prior to my arrival at Banaras on the second week.'
Admittedly, therefore, the letter was there at Banaras before the second week. It is only the appellant who chose to open it after the second week. That does not give him that starting point of limitation.
37. The learned trial Judge rightly, in our view, came to the conclusion that assuming that he left Calcutta before the 3th January 1953,the letter must have been redirected or sent to him by his step brother immediately and be did not accept the plaintiffs case that he was not on good terms with his step-brother. The trial Judge came to the conclusion that the letter must have been received within two or three days from the 5th January, 1953. Finally he concludes by saying that in his opinion the plaintiff has not satisfactorily proved that he received it on the 2nd week of February, 1953. That really puts an end to his case that the suit-was within three-year limitation even if Article 115 applied. Obviously it was not, and it was beyond the period of three years.
38. The learned Counsel for both the defendants have bitterly criticised this aspect of the plaintiff appellant's case on these facts. Our attention was drawn to the evidence of the doctor who neither produced any diary nor any records of any prescription to say whether he at all treated the plaintiff appellant for any disease or even if he did so from what date. The doctor being a Calcutta doctor the general impression that we get by reading his deposition is that the plaintiff appellant was almost all the time in Calcutta. No one of course from Benares was produced to support the plaintiffs version that he was at Benares at any relevant time. It has also been criticised by the defendants before us that the envelope in which the letter of dismissal was sent has not been produced nor the envelope which is supposed to have carried this letter to Benares.
39. Now coming to the question of the applicability of Article 115 of the Limitation Act, the appellant's case is that he is governed by Article 120 and that he has six years' time from the time when the right to sue accrued. Even then this question of limitation has become academic by reason of our finding that the plaintiff cannot make this claim against the defendant for reasons already indicated. We shall out of deference to the arguments from the Bar indicate our views briefly on this point. The appellant's case is that as his claim is based on the statute under Sections 17(4) and 20 of the Air Corporations Act, Article 120 must have applied. It is not a case of breach of contract but it is a case of breach of statute.
40. The answer to this is two-fold. In first place so far as the defendant company is concerned it has committed no breach of statute and no claim is being made against this defendant company on the strength of the statute. In fact if the statute is applied then under Section 17(4) of the Air Corporations Act no suit would lie against the defendant company for reasons already stated above. Therefore, the suit against the defendant company must be a suit against the express or implied contract between master and servant. Therefore, Article 115 of the Limitation Act must apply. There is no escape from that position.
41. Prima facie the argument that Article 120 should be applied against the defendant Corporation has an apparent attraction. It disappears, however, on closer scrutiny of the provisions of Section 17(4) of the Air Corporations Act. The crucial words used there from this point of view are 'If this Act had not been passed', in other words the Corporation's taking over of the liability or obligation is only as it this Act had not been passed. In other words it does not create any new right nor any new obligation, but it continues the old rights and old obligations available against the old company which is taken over. It is merely a matter of procedural facility for the Air Corporation to take over both the rights and obligations, both the claim as well as the liabilities. But then this is only as if this Act had not been passed. The meaning of this expression in that context can only be that if the claim against the Air Company is barred it is equally barred by these terms of the statute under Section 17(4) of the Air Corporations Act. Where the statute so expressly or by necessary implication expressly bars, there can be no application of Article 120 of the Limitation Act in such a case and the normal limitation which applies to the company should also be the limitation against the Indian Airlines Corporation. In other words this provision in Section 17(4) of the Air Corporations Act does not say or mean that barred and stale debts against the existing Air Company will continue to be available against the Air Corporation by reason of the fact that it has taken over.
42. In this view of the matter we consider it unnecessary to discuss the other cases which applied the three year rule of limitation under Article 115 of the Limitation Act as in Girdhari Lal v. Secy. of State, AIR 1937 Lah 226 and H. Pascal v. Secy. of State for India, ILR 12 Rang 124 at p. 127: (AIR 1934 Rang 111 at p. 112). For the same reason we do not consider it necessary in this case to discuss Article 7 of the Limitation Act and the claims for wages and artisan or even 102 of the Limitation Act and the relative cases in connection therewith such as Manik Lal Upadhaya v. Ramesh Chandra Acharya : AIR1955Cal290 and Upendra Nath v. Kumar Bimalendu : AIR1944Cal302 .
43. In conclusion we shall make a reference to the prayer for declaration that the appellant's service has continued. No such declaration can be given in these circumstances. This is not a statutory or constitutional service guaranteed by any satute or constitution as such. Had it been so then the statute or constitution would have governed it. The Lord Chancellor Viscount Kilmuir in the House of Lords in Vine v. National Dock Labour Board, reported in (1957) AC 488 laid down that the discretion to give a declaratory judgment must be used with very great care and with extreme caution. The Privy Council in Jerome Francis v. Municipal Councillors of Kuala Lumpur, reported in (1962) 1 WLR 1411 discussed this question at pages 1417 to 18 where Lord Morris observed as follows:
'In their Lordships' view, when there has been a purported termination of a contract of service a declaration to the effect that the contract of service still subsists will rarely be made. This is a consequence of the general principle of law that the courts will not grant specific performance of contracts of service. Special circumstances will be required before such a declaration is made and its making will normally be in the discretion of the Court. In theirLordships' view there are no circumstances in the present case which would make it either just or proper to make such a declaration.'
Here in the present case before us there are no special circumstances whatever. These special circumstances are provided either by the statute or by the rules or service or by the Constitution. No such circumstance is present here before us. See also the observations in Secy. of State v. I. M. Lall and in the Privy Council in High Commr. for India v. I. M. Lall, . Lord Reid in the recent House of Lords decision in Ridge v. Baldwin, reported in 1964 AC 40, observed at page 65 as follows:
''The law regarding master and servant is not in doubt. There cannot be specific performance of a contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has heard the servant in his own defence; it depends on whether the facts emerging at the trial prove breach of contract. But this kind of case can resemble dismissal from an office where the body employing the man is under some statutory or other restriction as to the kind of contract which it can make with its servants, or the grounds on which it can dismiss them. The present case does not fall within this class because a chief constable is not the servant of the watch committee or indeed of any one else.'
These principles were again discussed by the Privy Council in Vidyodaya University of Ceylon v. Silve, reported in (1964) 3 All ER 865 at pp. 867-68.
44. We have, therefore, no hesitation in holding that the appellant cannot sustain a prayer for a declaration that his services continues in a case such as the present one.
45. For the reasons and grounds stated above, we dismiss this appeal with costs. Certified for two counsel.
46. I agree.