UNION OF INDIA Vs. SURENDRA MOHAN SINHA

JUDGEMENT

(1.) This is a defendant's second appeal. A cross-objection by the plaintiff has also been filed. The plaintiff respondent had. instituted a suit for recovery of Rs. 4.494/11/5. as detailed in the schedule of claim appended to the plaint, on a declaration that the entire amount of debits raised against him and the orders demanding debits from him by the appellant and the withholding of his salary and dearness allowance and rendering him surplus for the period from 1-2-1951 to 8-3-1951 and from 1-4-1951 to 15-9-1951 were illegal and ultra vires the principles of natural justice and the mandatory provisions of the Indian Railways Establishment Code (hereinafter to be referred to as the Establishment Code). The plaintiff respondents, accordingly, claimed that such orders and the consequential deductions were not binding as against him.

(2.) Shortly stated, the case of the respondent was that he had been appointed as a Clerk in the Railway Reserved Store Depot, Samastipur. on the 20th of October, 1943, in the then Oudh Tirhut Railway. He was posted in different capacities from place to place as a Clerk, a Manager and a Depot Store Keeper from the date of his appointment to February, 1951. Thereafter he was declared surplus from the Food Department, to be more precise the Grain Shop Department, and was employed as a Clerk in the General Manager's Office at Gorakhpur from March, 1951 to April, 1951. During this period he was declared surplus from the 1st of February, 1951 to the 8th of March, 1951. At the time of the appointment of the plaintiff-respondent or even after his posting to the Grain Shop Department either in the capacity of a Manager, a Clerk or a Depot Store Keeper no agreement was entered into between him and the Railway Administration regarding any debit or regarding the percentage beyond which he would be liable to compensate the Railway Administration or that any sums would be debited from his account on charges of wastage, dryage. leaking, meltage, weighing, storage, loss and so on and so forth of the commodities which might be issued to him in his capacity as the Shop Manager or the Depot Store Keeper. The Railway Administration issued letters to the plaintiff from, time to time intimating to him that huge amount of debit had been raised against him. The details of those items have been given in Schedule 1 of the plaint. On proper. scrutiny of the debit orders, it transpired that no set principle or basis for raising such debits was adhered to by the officers of the Food Department of the Railway. It was alleged that they acted according to. their' whims following no fixed principle. As such the decision of raising the different debit items also varied from one officer to another from time to time. The percentage of debits was also alleged to be not uniform in the cases of different employees and as such the actions of the officers were dubbed as discriminatory and as being in violation of the principles of natural justice. The debits were raised arbitrarily as the plaintiff had not been given reasonable opportunity nor, for that matter, any opportunity to show cause against the debits raised against him. The orders regarding debits were accordingly alleged to be in utter violation of the rules framed under the Establishment Code. It was further alleged that the condition of the godowns in which the goods were stored was also far from being satisfactory. The goods stored therein were liable to dryage, wastage, leakage and other damages and in spite of the fact that the attention of the authorities was drawn from time to time not only by the plaintiff respondent but also other officers of the Department, no adequate step was taken by the Railway Administration for either repair of the godowns or for making any suitable arrangement for safe storage of the goods. It was also asserted that quite a number of consignments received by the plaintiff were so received in damaged condition, of which he had made reports from time to time to the authorities concerned. The plaintiff took shortage certificate concerning short delivery to him but at the time of raising the debits against him the discrepancies in weights were absolutely not taken into consideration by the authorities. Although the lass was occasioned in course of the transit of consignments, the responsibility for losses arising from such items was fastened on the plaintiff. Certain items of goods were despatched to the 'plaintiff on the basis of "surrendered weight accepted' condition mentioned in the Railway receipt but in fact, lesser auantity of goods was delivered to him on actual weighment. In such cases also the Railway Administration, while saddling the plaintiff with the responsibility for the same, did not take into account the actual weight of the goods that were delivered to him. The further grievance of the respondent was that under the Circular of the Railway Administration he being an employee who camp into service prior to the year 1945 and was classified as category 'A' employee, he was bound to be absorbed by the Railway Administration even after he was declared surplus from the Food Department. But the Railway Administration, instead of following the instructions contained in the Circular pursuant to the Establishment Code, acted arbitrarily and did not post the plaintiff to any other suitable post in any other department where he was entitled to be absorbed. The plaintiff had neither been discharged nor retrenched and he remained occupying peculiar and anomalous position for the periods from 1-2-1951 to 8-3-1951 and again from 1-4-1951 to 15-9-1951. During this period when he had been allegedly illegally declared surplus, the authorities of the Railway Administration refused to pay him any remuneration on the ground that he had been declared surplus from the Department. It was further asserted that the plaintiff was made to deposit a sum of Rs. 400/- and this amount he deposited under protest in the month of December, 1948, from his own pocket. The aforesaid amount of Rs. 400/- was said to have been illegally exacted from him and so he was entitled to claim a refund of this amount as well. Moreover, the salary of the plaintiff upto January, 1951, amounting to Rs. 1,375/4/- was withheld by the appellant, while the plaintiff was serving in the Food Department, on account of various debits raised against him and again from February, 1953 till March, 1954 a sum of Rs. 350/- was withheld by the defendant appellant besides the aforesaid sum of Rs. 400/- which the plaintiff had been compelled to pay to the Railway Administration. In all the plaintiff, therefore, claimed a sum of Rs. 4494/11/5. It may be mentioned here that the claim for the recovery of the aforesaid amount was added by amending the relief portion of the plaint subsequent to the institution of the suit. Originally the suit as framed merely claimed a relief in the shape of a declaration that all the orders relating to debits and the order compelling the plaintiff to deposit the sum of Rs. 400/- were wholly void and not binding on the plaintiff. Such a suit had been filed after due service of notice under Section 80 of the Code of Civil Procedure (hereinafter to be referred to as the Code). Subsequent to the institution of the suit, however, the plaintiff was advised to amend the relief portion by adding a prayer for recovery of the aforesaid amount from the defendant appellant. That prayer for amendment of the plaint was allowed by the trial court.

(3.) The Railway Administration contested the suit on the grounds that (i) the plaintiff had no valid cause of action, (ii) the suit was barred by limitation, (iii) the Civil Court had no jurisdiction to try the suit as the cognizance of such suits was expressly barred under the provisions of Section 22 (d) of the Payment ot Wages Act. 1936 (Act 4 of 1936), hereinafter to be referred to as the Act, and (iv) the notice under Section 80 of the Code was not properly served. The defence on merit was that there was a statutory liability on a railway servant to compensate the Railway Administration on account of negligence of the employee concerned and the Railway Administration was, therefore, perfectly justified in raising the debits in respect of items of money for which the plaintiff was found liable on account of negligence in duty and wilful misconduct. The further defence of the appellant was that the plaintiff respondent was made to pay Rs. 400/- in accordance with law and it must be deemed to be a voluntary deposit made bv him. It was further averred that the plaintiff was holding a temporary post and the authorities concerned were fully entitled to render him surplus whenever the circumstances and the facts regarding his inefficiency afforded action to be taken. Accordingly, it was urged that the plaintiff had been declared surplus during the period as mentioned above wholly in accordance with law.