Jai Chand Sawhney v. Union of India

, Shah, J.-Jai Chand Sawhney-hereinaftet called 'the plain-tiff'-was removed from service undet the East Punjab Railway, by order dated .October 1.3, 1949. He sued the Union of India in the Court of the Subor\linate Judge, Hissar, for selling aside the order o( removal on the-grounds--(i) that the order was made. by an authority subordinate to th~ 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 A'ct, 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 employfnent. The Trial Gour't declared that the disiniS>·al' was "illegal and void .. , and decreed the claim for Rs. 9,335-35 for arrears of sala~ - -

Against the decree passed by the Trial Court the plaintiff and the Union of India appealed to the High Court of :Piunjab. The plaintiff's appeal was dismissed. The Union's appeal was also dis-missed. The plaintiff was awarded arrears of salary for three years prior to the date .of the suit. :With sp_ecial leave, the plaintiff has appca lee( to this Court.

It was held by the Federal Court in The PiJn/ab Provin/:e v. Pandit Tarachand(') that the expression "wages" in Article 102 in the Schedule to the Limitation. Act includes salary, and there-iore a suit by a servant of the Crowrl for arrears of salary is govern-ed by Art. l 02 of the Indian LiTQitation Act. That view was reiterated by this Court in Shri Madha1· Laxman Vaikunthe v. T/le S!ate of Mysore,(') it was held that the claim in a suit fdr arrears of salary du~ to a servant of the State who was revertec.l to his ·substantive ran~ ·is governed by Art. I 02 of the Indian Limitation Act.

Counsel for the plaintiff contended· that the period of three' years under Art. I 02 commences to run from .the date· on which the order of dismissal is set aside, eit}\er by a departmental autho-rity or by the Civil Court in a suit or other proceeding. Counsel also contended that the cause of action in a sµit .by a dismissed employee arises on the date of t·he institution of the suit, if the Court sets aside tl,le order of dismissal or removal. In su~port of his contention couilsel relied upon a judgment of the Madras High Court in State cj Madras v. A. V. A namharama,n. ('8) In that case the Madras {ligh Court observed that the pay and allowances of a public servant dismis_sed or remov~J from service cease.from the date of such dismissal or removal and his right to recover the arrears arises because 'of Fundamenfal Rule '52 not before the date

(I) [1947] E.C.R.'80. (2) r101;2; t s.c.R. 886 . .(3) J.L.R. lt963] Mad. !014.

224 SUPREME -COuRT REPORTS [1970]3 s.c.R. on which the result of the subsequent proceeding setting aside the dismissal or removal is declared. Counsel for the plaintiff says that the terms of Fundaniental Rule 52 are the same as the tenm of r. 2042 of the Railway Establishment Code, and according to the principle of the judgment of the Madras High Court the plainiiff's right to sue must be deemed to have accrued on the dat<; on which .the suit was instituted. In our judgment, the contention · cannot be accepted. When the order of _dismissal or removal is s~t aside by the Court en the ground of failure to afford the co~ti­ tutional protection, the order is declared invalid ab initio, i.e. as if it in law never existea, and 'the oublic servant concerned' was unlawfully prevented from' rendering service. If that be the ,·orrect view, salary due to the public servant concerned must be deemed to have accrued month after month because he had beeit wrongfully prevented fromrendering service. The period of limi-tation under Art. 102 commences "to run when the wages "accrue due'', and wages accrue due whel) in law the servant becomes entitled to wages. Rule 2042 of the Railwa.Y Establishment Code merely provides that "the pay and allowances of a railway servant who is removed or dismissed from service cease from the date~o-­ of the order of removal or dismissal". That rule does not ope-rate to m.ake the wages accrue due on the date of the institution of the suit. If ,the order of dismissal is set aside the public ser- \'ant is d~emed to be in service throughou.f the period during \\·hich the order of dismiss'al remained operative, and his right to 'ue 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 fqr salary beyond the period provided by the third column of Art. 102 was barred bv 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. l 908,_· where a statutory notice has to be served by the plaintiff before instituting any action, in computing the period of limi-tation,,the period of the notice in a_,cordance with .. the require-ments of the enactment must be excluded.. There is no doubt that the plaintiff had given such a notice. He was., therefore, en-titled to salary for three year~ and two months prior to the date of the suit.

Subject to that modification, the appeal is dismissed. There .H will be no order as to costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 561 of 1967.

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.