UNION OF INDIA (UOI) OWNING THE SOUTHERN RAILWAY REPRESENTED BY ITS GENERAL MANAGER Vs. N.R. VENKATARAMA NAIDU

JUDGEMENT

(1.) THE Union of India, the defendant in O.S. No. 4654 of 1966, on the file of the City Civil Court, Madras is the appellant. The plaintiff entered service in the quondam M.S.M. Railway Company in 1929 and was promoted as Station Master in or about March, 1941. In 1958, to wit, from 25th August, 1958, the plaintiff's services were terminated in the purported exercise of the power vested in the Railways under Rule 148 of the Indian Railways Establishment Code. The constitutional validity of this Rule came up for consideration before the Supreme Court, though no doubt in ancillary proceedings, and the Supreme Court by its judgment in Moti Ram v. N.E. Frontier Railway : (1964)IILLJ467SC, dated 5th December, 1963 struck down the rule as unconstitutional. The plaintiff under Exhibit A -6 sought for his reinstatement on the strength of the ratio of the judgment of the Supreme Court and requested the General Manager of the Southern Railway to reinstate him at an early date. On 10th July, 1964, under Exhibit A -8, the Divisional Superintendent, Tiruchirapalli, wrote to the plaintiff stating that it had been decided to reinstate him in service and that he would be posted to a particular station and asking the plaintiff to report to duty immediately. This was followed up by another letter Exhibit A -9 dated 13th July, 1964, under which the plaintiff was posted to a particular station and he was informed that he was being reinstated from 13th July, 1964 in the Station Master's category. The plaintiff however made further representations in April, 1965 to which the defendant replied under Exhibit A -10 reading as under: With reference to our above, the G.M. has replied as under : 'Though the period of absence of the abovenamed from the date of removal from service to the date of reinstatement i.e. from 25th August, 1958 to 12th July, 1964 was treated as duty, the payment of arrears of pay and allowances could be restricted to the period covered by the law of limitation i.e. for a period of 3 years backwards from the date of reinstatement (from 13th July, 1961 to 12th July, 1964). Thereafter it is common ground that the plaintiff assumed office, but he was pressing for the payment of his salary for the period commencing from 25th August, 1958 to 12th July, 1964, the day preceding -the one on which he was reinstated in service and claimed that he was entitled to full salary and allowances during that period notwithstanding the statement made under Exhibit A -10 by the defendant in their communication dated 15th July, 1965. The plaintiff not having had satisfaction of the claims made by him issued counsel's notice under Section 80 of the Code of Civil Procedure under Exhibit A -11 dated 22nd September, 1966 to which he got a reply from the authority to the -effect that the plaintiff was entitled to the payment of arrears of pay and allowances restricted to the period covered by the law of limitation, namely a period of three years backwards from the date of reinstatement, the amount being reduced by the emoluments earned elsewhere during the period referred to. The plaintiff's claim for the payment of the full salary and allowances was therefore denied. It became necessary for the plaintiff to institute the present action after receipt of the reply -notice from the defendant claiming back arrears of pay and allowances amounting to Rs. 8,120 together with interest at six per cent per annum from the date of the plaint. The defendant's only contention was that the claim was barred by limitation and that it was erroneous on the part of the plaintiff to assume that the right to sue accrued to him on the date of reinstatement. The usual defence of the Railway was also taken that the notice was not proper. On the above pleadings, the following issues were raised:

(2.) THE learned Counsel for the appellant strenuously contends that the correspondence that passed between the parties, more particularly Exhibits A -8, A -9 and A -10, read with ratio in the Supreme Court judgment under which Rule 148 of the Indian Railways Establishment Code was struck down as unconstitutional, would not give a fresh cause of action to the plaintiff and that, if the situation is thus, understood, the suit claim is barred by limitation. On the other hand, the plaintiff stated that Exhibit A -10 contained an unconditional acknowledgment to the effect that the plaintiff had been reinstated and that the period between 25th August, 1958 and 12th July, 1964, would be treated as period during which he was on duty. It is on this basis the plaintiff sought to sustain the judgment of the lower Court and would also urge that the claim is not barred by limitation.

(3.) MR . Venkateswara Rao, the learned Counsel for the appellant, brought to our notice certain decisions of the Supreme Court, which according to him, would cover the situation. But we are afraid that those decisions were rendered on the peculiar facts which arose in those cases and having regard to the specific contents of Exhibit A -10, the force of which we shall presently consider, the decisions cited by the learned Counsel for the appellant are certainly distinguishable. In Triloki Nath Vyas v. State of Uttar Pradesh (1968) 2 S.C.W.R. 426 the facts as it appears from the report were that the plaintiff whose conviction in a Criminal Court was set aside by the High Court, sought for reinstatement. On such application, the Government ordered his reinstatement with effect from the date when he was reinstated and for the : remaining period commencing from the date of his suspension, he was granted one fourth of his salary as allowance. It does, not appear from the report that there was a communication similar to Exhibit A -10 whereunder the plaintiff in the instant case was informed that the period during; which he was kept out of service would be treated as if he was on duty. This case therefore does not strictly apply to the facts of this case. In another Supreme -Court decision brought to our notice, Jai Chand Sawhney v. Union of India (1970) 2 S.C.J. 28, the facts are almost similar to the one which appeared in the earlier Supreme Court case. In this case, the plaintiff sued the Union of India for setting aside the order of his removal on the ground that the order was made by an authority subordinate to the appointing authority and that he was not given a fair opportunity to show cause against the action proposed. He claimed a large sum being the arrears of salary and damages fox wrongful termination of employment. The trial Court decreed the suit in part. Against the same both the plaintiff and the Union of India appealed. The plaintiff's appeal was dismissed and even so the Union of India's appeal. With Special Leave, the matter went up to the Supreme Court. Their Lordships considered the effect of Article 102 of the Indian Limitation Act of 1908 and they expressed the view that the period of limitation would commence to run -when the wages accrued due and when in law the servant became entitled to wages and that Rule 2042 of the Railway Establishment Code did not operate to make the wages accrue due on the date of the institution of the suit. In that view they held that the suit was barred by limitation and that the plaintiff's claim for salary beyond the period provided by the third column of Article 102 was barred by the law of limitation Here again, we find that there was no correspondence between the Department on the one hand and the aggrieved person on the other, wherein there was a disclosure that the period during which the plaintiff was out of employment was treated as if he was on duty. The Supreme Court therefore considered the case before it on merits disclosed in the pleadings and held in the abstract that the period of limitation under Article 102 of the Limitation Act commenced to run when the wages accrued due. The question still remains in our case as to when it can be said the wages accrued due.