PROVINCE OF PUNJAB Vs. PANDIT TARA CHAND

JUDGEMENT

(1.) Shorn of details that are no longer relevant the facts of this case are as follows: The respondent was appointed Sub-Inspector of Police by the Deputy Inspector General of Police, Punjab, on January 2, 1911. On March 19, 1938, the Superintendent of Police, Amritsar, an officer subordinate to the Deputy Inspector General of Police, recorded an order purporting to dismiss the respondent from service. After exhausting his remedies by way of departmental appeal the respondent instituted a suit on April 14, 1942, against the Punjab Province claiming a declaration that the order of the Superintendent of Police of March 19, 1938, was void and of no effect inasmuch as it was made by an officer subordinate to the authority by which the respondent had been appointed and thus contravened the direction laid down in Section 240 (2) of the Constitution Act. He also claimed arrears of pay from March 20, 1938, till January 2, 1941, the date on which he was normally due to retire from service. The trial Court gave the respondent the declaration prayed for but dismissed his claim for arrears of pay as not maintainable. On appeal, a division bench of the Lahore High Court reversed the trial Court's finding on the last point but holding that by virtue of Art. 102 of Schedule I to the Indian Limitation Act respondent was entitled to recover arrears of pay only in respect of such period of his service as fell within three years immediately preceding the institution of the suit, gave him a decree for Rs. 2,860 a sum representing 22 months salary at the rate of Rs. 130 per mensem. A certificate under Section 205(1) of the Constitution Act was granted by the High Court. The defendant has come up on appeal to this Court. The respondent has filed cross- objections claiming arrears of pay for the whole period from March 20, 1938, till January 2, 1941.

(2.) In view of the judgment of this Court in Suraj Narain Anand V/s. The North-West Frontier Province [1941] F.C.R. 37 counsel for the appellant conceded that the purported order of dismissal made by the Superintendent of Police on March 19, 1938, was void and of no effect. His contention was that the plaintiff had no right to maintain a suit against the Crown or its representative for recovery of arrears of pay.

(3.) It is necessary to point out that this is not a case for recovery of damages for wrongful dismissal as was sought to be contended at one stage by counsel for the appellant. The order of March 19, 1938, purporting to dismiss the respondent having been made by an authority that had been expressly debarred by Section 240(5) of the Constitution Act from making it was utterly void of all effect. It was in the eye of the law no more than a piece of wastepaper. The position is that the respondent was never legally dismissed from service and continued in law to be a Sub-Inspector of Police till the date on which he was under the conditions of his service due to retire. He was thus entitled to draw his salary for the period of his service after March 19, 1938. The only question on this part of the case is whether he could recover the amount of that salary by means of a suit.