UNION OF INDIA Vs. SH JAGDISHWAR LAL

JUDGEMENT

(1.) THIS is a defendant's appeal against the order of the learned Senior Subordinate judge, Ambala, granting the plaintiff a decree for Rs. 10,712/8/- with costs on account of arrears of salary and damages.

(2.) ON 18th of February, 1918 Jagdishwar Lal plaintiff was employed as a civilian clerk in the Defence Department of the Government of India. He was confirmed as 3 Lower Division Clerk on 1st of February, 1924. Subsequently, he accepted the combatant status and when he was in active service he contracted duodenal ulcer for which he was operated on 3rd of October, 1945. After the operation, the Medical Board declared him unfit for active mllitary service but fit for a civilian job and he was placed in category 'c'. He was transferred to Ambala Cantonment in february, 1946. When he reported himself for duty at Ambala Cantonment, he was asked to appear before a second Medical-Board. The-said Board declared him unfit for ser- vice and placed him in category 'e'. Later on, he was discharged from service with effect from 4th of April, 1946. The Army Headquarters, however, were of the view that it was an irregular discharge and they directed that he should be discharged afresh. Consequently, he was discharged with effect from 28th of April, 1349. It appears that the Accounts Department raised certain objections regarding his pension and pay. As a result, on 31st of October, 1953, the President of India regularised his period of absence from 4th of April, 1946 to 27th of April, 1949, partly on full pay, partly an half pay and part of it on extraordinary leave without pay. This led to the present suit which was filed by him in 'forma pauperis' on 1st of july, 1954 against the Union of India for recovery of Rs. 11,000/- as arrears of salary from 4th of April, 1946 to 27th of April, 1949, or In the alternative for damages on account ef illegal discharge. His allegations were that the order of his discharge with effect from 4th of April, 1946 was illegal as it was subsequently admitted by the defendant itself, and the same was set aside and he was discharged afresh with effect from 28th of April, 1949. According to him, even the second order of his discharge with effect from 28th of April, 1949 was also bad in law inasmuch as the proceedings of the second Medical Board disclosed that the plaintiff was not permanently incapacitated for further service and his incapacity was only partial. He averred that he was in service of the defendant-Union from 4th of April, 1946 to 27th of April, 1949, and was, therefore, entitled to full salary and allowances.

(3.) THE suit was resisted by the Union of India, 'inter alia', on the grounds that the suit by a Government servant for arrears of pay and allowances was not competent, that it was barred by limitation, that he was not entitled to any salary because he did not do any work during this period and that the order of his discharge from service with effect from 4th of April, 1946 was not illegal.