Full Judgment Text
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PETITIONER:
JAI CHAND SAWHNEY
Vs.
RESPONDENT:
UNION OF INDIA
DATE OF JUDGMENT:
31/10/1969
BENCH:
ACT:
Limitation Act (9 of 1908), Art. 102-Applicability to
Government Servants-Order of dismissal of Government servant
set aside-Salary of such servant when ’accrues due’ under
the article.
HEADNOTE:
The appellant, a railway employee, was dismissed from
service on October 13, 1949. On October 13, 1955, he filed
a suit, against the respondent, for setting aside the order
of dismissal and for arrears of salary. The order of
dismissal was set aside on the ground of failure to afford
the constitutional protection provided under s. 240 of the
Government of India Act, 1935.
On the question of the period for which he was entitled to
arrears of
,salary,
HELD : A suit by a servant of the Crown for arrears of
salary is governed by Art,. 162 of the Indian Limitation
Act, 1908. [223 F]
Shri Madhav Laxman Vaikunthe v. The State of Mysore. [1962]
1 S.C.R.
The period of limitation under Art. 102 is 3 years, and
commences to run when the salary accrues due. The salary
acrues due when, in law, the servant becomes entitled to it.
[224 C-D]
In, the present case, when the order of dismissal was set
aside, the appellant was deemed to be in service throughout
the period during which the order of dismissal remained
operative. Therefore the appellant’s right to sure for his
salary arose at the end of every month in which be, was
unlawfully prevented from earning it. Hence, his claim for
salary for the period prior to 3 yeas from the date of the
suit was barred. Rule 2042 of the Railway Establishment
Code which provides that the pay and allowances of a
dismissed railway servant cease from the date of dismissal
does not operate to make the salary accrue due. on the date
of the institution of the suit for setting aside the order
of dismissal. [224 D-F]
In computing the period of limitation the period of
statutory notice of two months should be excluded under s.
15 of the Limitation Act. Therefore, the appellant was
entitled to salary for three years and two months prior to
the data of the suit. [224G-H]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 561 of 1967.
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Appeal by special leave from the judgment and decree dated
May 22, 1962 of the Punjab High Court, Circuit Bench at
Delhi in Regular First appeal No. 92-D of 1959.
B. C. Misra, Urmila Kapoor and B. Ram Rakhiani, for the
appellant.
Jagadish Swarup, Solicitor-General and S. P. Nayar, for the
respondent.
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The Judgment of the Court was delivered by
Shah, J.-Jai Chand Sawhney-hereinafter called ’the plaintiff
-was removed from service under the East Punjab Railway, by
order dated October 13, 1949. He sued the Union of India in
the Court of the Subordinate Judge, Hissar, for setting
aside the order of removal on the grounds-(i) that the order
was made by an authority subordinate to the appointing
authority; and (ii) that he was not given an opportunity to
show cause against the action proposed to be taken in regard
to him as required by s. 240 of the Government of India Act,
1935. The plaintiff also claimed a decree for Rs.
20,399/9/- being the amount of arrears of salary and damages
for wrongful termination of employment. The Trial Court
declared that the dismissal was "illegal and void" and
decreed the claim for Rs. 9,335-35 for arrears of salary.
Against the decree passed by the Trial Court the plaintiff
and the Union of India appealed to the High Court of Punjab.
The plaintiff’s appeal was dismissed. The Union’s appeal
was also dismissed. The plaintiff was awarded arrears of
salary for three years prior to the date of the suit. With
special leave, the plaintiff has appealed to this Court.
It was held by the Federal Court in The Punjab Province v.
Pandit Tarachand(1) that the expression "wages" in Article
102 in the Schedule to the Limitation Act includes salary,
and therefore a suit by a-servant of the Crown for arrears
of salary is governed by Art. 102 of the Indian Limitation
Act. That view was reiterated by this Court in Shri Madhav
Laxman Vaikunthe v. The State of Mysore (2) it was held that
the claim in a suit for arrears of salary due to a servant
of the State who is reverted to his substantive rank is
governed by Art. 102 of the Indian Limitation Act.
Counsel for the plaintiff contended that the period of three
years under Art. 102 commences to run from the date on which
the order of dismissal is set aside, either by a
departmental authority or by the Civil Court in a suit or
other proceeding. Counsel also contended that the cause of
action in a suit by a dismissed employee,arises on the date
of the institution of the suit, if the Court sets aside the
order of dismissal or removal. In support of his contention
counsel relied upon a judgement of the Madras High Court in
State cl Madras v. A. V. A nantharaman. (3) In that case the
Madras High Court observed that the pay and allowances of a
public servant dismissed or removed from service cease from
the date of such dismissal or removal and his right to
recover the arrears arises because of Fundamental Rule 52
not before the date
(1) [1947] F.C.R. 89.
(2) [1962] 1 S.C.R. 886.
(3) I.L.R. [1963] Mad. 1014.
224
on which the result of the subsequent proceeding setting
aside dismissal or removal is declared. Counsel for the
plaintiff says’ that the terms of Fundamental Rule 52 are
the same as the terms of r. 2042 of the Railway
Establishment Code, and according to the principle of the
judgment of the madras high Court the plaintiffs right to
sue must be deemed to have accrued on the date on which the
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suit was instituted . In our judgment, the contention cannot
be accepted. 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 @ the correct view, salary due to the
public servant concerned deemed to have accrued month after
month because he had been wrongfully prevented from
rendering service. The period of limitation under Art. 102
commences to run when the wages "accrue due" and wages
accrue due when in law the servant becomes entitled to
wages. Rule 2042 of the Railway Establishment Code merely
provides that "the pay and allowances of a railway servant
who is removed or dismissed from service 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.
The High Court was, in our judgment, right in holding that
the plaintiff’s claim was governed by Art. 102 of the
Limitation Act, that the remuneration payable to him accrued
due month after month, and that the plaintiff’s claim for
salary beyond. the period provided by the third column of
Art. 102 was barred by the law of limitation.
A slight modification must, however, be made in the decree
of the High Court. Under s. 15 of the Indian Limitation
Act, 1908, where a statutory notice has to be served by the
plaintiff before instituting any action, in computing the
period of limitation, the period of the, notice in
accordance with the requirements of the enactment must be
excluded. There is no doubt that the plaintiff had given
such a notice. He was, therefore, entitled to salary for
three years and two months prior to the date of the suit.
Subject to that modification, the appeal is dismissed.
There, will be no order as to costs.
V.P.S.
Appeal dismissed..
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