UNION OF INDIA Vs. P V JAGANNATH RAO

JUDGEMENT

(1.) THE respondent entered service as a Guard in 1941 in the Bengal Nagpur railway and after nationalization of Railways in 1944, he became a servant of the government of India. By an order of the District Transportation Officer, the respondent's services were terminated with effect from 18th July, 1946. The respondent then instituted Civil Suit No. 257-A of 1949 on 12th September, 1949 in the Court of Civil Judge, Class II, Raipur, claiming a declaration that the order of termination of his services was illegal. This suit was decreed by the Civil Judge on 25th August, 1951, and this decree was ultimately confirmed by the High Court in p. V. Jagannath Rao v. Union of India, Second Appeal No. 492 of 1953, D/- 13-121957 (Madh Pra) which was decided by one of us (Shrivastava, J. ). It was found by the High Court that the order of termination of respondent's services was grounded on misconduct and amounted to dismissal. It was further found that no inquiry was held against the respondent on the charge of misconduct and the termination order was passed by an authority subordinate to that by which he was appointed. On these findings the orders of termination of respondent's services was declared to be invalid and void being in violation of Clauses (2) and (3) of section 240 of the Government of India Act, 1935. After the decision of the High court, the respondent was reinstated bv order passed on 2nd January, 1959 and he joined his post on 30th January, 1959. The respondent then claimed the arrears of his salary till his reinstatement and after certain abortive correspondence, he commenced on 1st March, 1962 the suit which has given rise to this appeal. The claim in the suit was for recovery of a sum of Rs. 45,283-34 P. which comprised of arrears of salary amounting to Rs. 39,263-68 P. for the period 18th July, 1946 upto 29th 'january, 1959 and interest at 6% per annum amounting to Rs. 7,069-40 P. The Second Additional District Judge, Bilaspur who tried the suit decreed the entire claim on 4th April, 1964. Aggrieved from this decree the Union of India has come up in appeal to this Court.

(2.) THE first contention raised in appeal is that the entire claim in the suit was barred by limitation. Both parties are agreed that the relevant provision applicable is Article 102 of the Limitation Act. 1908 The disagreement is about the commencement of the period of limitation. According to the appellant the salary becomes due from month to month and the entire claim being for a period beyond three years from the date of the suit, the whole of it was barred by limitation. According to the respondent, the cause of action arose on 2nd January, 1959 when in pursuance to the decision of the High Court, the respondent was ordered to be reinstated Reference in this connection is made to Para 2042 of the Railway establishment Code (which 'corresponds to F. R. 52) and it is contended that till the order of dismissal was in operation, the respondent could not have been paid his salary; that the dismissal order was effective till it was set aside by the order of reinstatement; and that the arrears accrued due on the passing of the order of reinstatement and not before

(3.) THE legal effect of non-compliance with Section 240 of the Government of India act, 1935 has been examined in a number of cases. In Punjab Province v. Tarachand AIR 1947 FC 23, where an order of dismissal was passed in breach of clause (2) of Section 240, the Federal Court held that the order was "utterly void of all effect and was "in tet eve" of law no more than a piece of waste paper". In high Commissioner for India v. I. M. Lall AIR 1948 PC 121, the non-compliant related to Clause (3) of Section 240, and the Privy Council held that the civil servant was entitled to a declaration that the order of dismissal was "void and inoperative" and that he "remained a member of the civil service" at the date of the institution of the suit These cases have been approved by the Supreme Court in construing Article 811 of the Constitution. In Khem Chand v. Union of India, AIR 1958 SC 300 where the non-compliance related to Article 311 (2), the Court gave a declaration that the order of dismissal was inoperative and the plaintiff was a member of the service on the date of institution of the suit.