JUDGMENT P.K. Tare, J.

1. This second appeal has been-filed by the plaintiff, who lost in both the Courts below. His appeal before the District Judge was dismissed summarily without notice to the respondent. It is directed against the order of Shri C.B. Kekre, District Judge, Chhindwara, arising out of the judgment and decree passed by Shri S.M.I. Alvi, Civil Judge, Class I, Balaghat.

2. The plaintiff-appellant was a Sub-Inspector of Police at Tendu Kheda in charge of the Police Station House. He, along with some others, had been prosecuted for offences under Sections 304, 331 and 201 of' the Indian Penal Code, in the Court of Shri J.N. Dutta, Magistrate, First Class, with powers under Section 30 of the Criminal procedure Code, who by judgment dated 7-7-1944, acquitted all the accused-honourably in criminal case No 54 of 1944. The matter was not taken up further by the prosecution against the said acquittal.

The prosecution version was that the Sub-Inspector had been to the house of one Gokal to carry, on investigation in connection with a theft alleged to have, been committed by the deceased Mozi. The charge in the said criminal case was that on the night of 7-2-1944, the deceased Mozi was treated by third degree methods; as a result of which, two of his ribs were fractured and his spleen was ruptured and the death was said to have been caused on account of the beating alleged to have been administered by the Sub-Inspector.

The Magistrate, while acquitting the accused under Section 258 (1) of the Criminal Procedure Code, held that there was no beating in the house of Gokal on the night of 7-2-1944 and that after the investigation, the deceased Mozi went back to his house-alive, where his mother, wife and daughter met him some time in the mid-night. The Magistrate also found that there were no injury marks on the body of the deceased, but two of his ribs had been fractured and his spleen had also been ruptured. Considering all the evidence, the Magistrate acquitted honourably all the accused, holding that the prosecution version, was wholly incorrect.

3. The present suit was filed for a declaration to the effect that the order dated 22-12-1945, passed by the Inspector General of Police was void, as the authorities had contravened Regulation 241 of the Police Regulations, inasmuch as, they had, in the departmental inquiry, held him guilty of the alleged charge of committing culpable homicide with respect to the deceased Mozi.

The plaintiff averred that the departmental authorities had no right to sit in judgment over the decision of the criminal Court, and, therefore, the order of dismissal was wholly without jurisdiction. The plaintiff claimed Rs. 4,724/5/- as arrears of salary and paid court fees on the consequential relief without paying any Court-fees on the declaration. In the body of the plaint, the order of dismissal was specifically challenged, though in the relief clause, the plaintiff-claimed a decree for Rs. 4,724/57- only for arrears from 1-4-1947 to 1-4-1951.

4. In the written statement the defence reiterated the allegations, which were the subject-matter of the charge in the criminal case. It was further averred that the charge framed in the departmental inquiry was relating to the concealment of facts as to the cause of death of the deceased Mozi, which had nothing to do with the charges in the criminal case. It was alleged that the order of dismissal was valid, as it had been passed after a proper departmental inquiry conducted in accordance with the Police Regulation.

5. The learned counsel for the appellant urged that the departmental authorities had no power or authority to hold a departmental enquiry in respect of a matter, regarding which, the law Court had acquitted him. From the charge dated 9-10-1944 (Ex. D-1), it is clear that the charge was not in respect of the same matter, as the charges in the criminal case. The departmental charge was as follows :

Concealment of facts as to the cause of the death of deceased Mozi Kalar of Sainpura, a suspect of a house-breaking case, who was alleged to have met his death at the hands of S. I. and other police officers during their investigation.

As urged by the learned Government Advocate, the concealment of facts referred to other matters about conducting the investigation or holding the interrogation prior to the death of the deceased Mozi, which could not be a subject-matter of a charge under Section 201, of the Indian Penal Code. The charge under Section 201 of the Indian Penal Code was about disposing of the body and obliterating the evidence of the crime. From that point of view, the learned Government Advocate's contention was certainly correct.

Therefore, there was no bar to the holding of a departmental enquiry, as was laid down by their Lordships of the Supreme Court in the case of Venkata Raman v. Union of India, AIR 1954 SC 375. Similarly a Single Bench of this Court presided over by Naik J. has held in Bhagwandas Verma v. State of Madhya Pradesh, M. P. No. 15 of 1955, D/-27-8-1956 (Nag), that it is open to a departmental authority to frame a charge, not related to the charge in the criminal case, and that this Court could not sit in judgment as an appellate Court over the departmental authority.

6. It is true that although the subject-matter of the departmental enquiry and the subject-matter of the charges in the criminal case were different, but from a perusal of the said charge (Ex. D-1; as also the order of dismissal dated 22-12-1945 (Ex. P-13) the substance of the charge indicated that it was based on the assumption of the plaintiff's guilt in the criminal case. The concealment of facts referred to in the departmental charge could only be held to be related to the necessity of manipulating entries in the police case diary, as also fabricating the evidence about the conduct of the investigation in order to hide or cover up the plaintiff's prominent part in the alleged culpable homicide.

[1 Once the criminal Court came to the conclusion that the deceased Mozi did not the on the night of 7-2-1944, the same fact could not be taken as the basis for any departmental action for the purpose of framing any charge. Once the alleged cause of death on 7-2-1944 was negatived by a Court of law by a judgment, which had become final, no other authority or Court or even a private individual could assume that the plaintiff was guilty of the offence. If a private individual were to repeat the allegations contained in a charge, of which the accused had been acquitted in a Court of law, the accused could certainly proceed against the other person civilly or criminally for defamation.

Even a public authority would not be protected, if it flouted the verdict of the law Court. Further Ex. P-13 shows that the Inspector General of Police was mainly guided by the assumption of the plaintiff's guilt in the said crime and it was from that point of view that he judged the material in the departmental inquiry. Therefore, the very basis of the order of dismissal was unwarranted and illegal. Such an order based on unwarranted and unauthorised assumptions could not be said to be an order passed within powers or within jurisdiction of the authority.

7. It is true that the departmental authorities e powers to hold the departmental enquiry in connection with matters not relating to the said crime. But in the present case the two could not be separated. The order of dismissal must fall down as a whole as it was based on admissible as well as inadmissible material. If the admissible and inadmissible matters be not separable, the conclusions would be entirely vitiated. There may be cases in which they may be separable; but the present one is not a case of that type.

8. The learned Government Advocate pointed out that the plaintiff had not sought any declaration for quashing the order of the dismissal and as such, having failed to claim the main relief, he was not entitled to a decree for arrears of salary. As I have observed earlier, the prayer clause, in the plaint may be defective, but the body of the plaint certainly contained all the necessary facts upon which this Court could grant a relief as may be found necessary.

At any rate, I hold that the relief of declaration could be implicit in the residuary item of the prayer clause under the description "any other relief". If the plaintiff is entitled to a relief, it cannot be denied to him upon a hypertechnical view, as is suggested by the learned Government Advocate Similarly no Court-fees were payable on the relief of declaration because payment of Court-fees on the consequential relief of arrears of salary was sufficient under the Court-fees Act.

9. It was urged by the learned Government Counsel that the appellant was not entitled to any relief, as Article 311(2) of the Constitution had not been contravened. As regards the interpretation of Article 311(2) of the Constitution, Their Lordships of the Supreme Court have laid down the law in the case of P. Joseph John v. State Of Travancore-Cochin ., (S) AIR 1955 SC 160, wherein it has been observed that a Government servant should get two opportunities, namely, the one to defend himself during the enquiry according to the departmental rules and the other after the conclusion of guilt is tentatively arrived at, when the Government servant is called upon to show cause against the action proposed to be taken.

The former opportunity is justifiable on the ground of the principle of natural justice, while the latter is specifically provided for by the Constitution, It would be reducing the constitutional guarantee to a nullity, if a Government servant without any tentative conclusion of guilt were called upon to show cause against the action proposed to be taken. In such an event, he could not be called upon to show any cause whatsoever, as was held by a Division Bench of this Court consisting of Sinha C.J. (as he then was) and Bhutt J. in the case of M.A. Waheed v. The State of M. P., ILR (1954) Nag 371: (AIR 1954 Nag 229).

The same would be the position if the conclusion of guilt could not be arrived at all. In the present case, the conclusion could not be arrived at as the appellant was honourably acquitted of all charges by the criminal Court. The assumption of guilt in the criminal offences was the very basis of the charge in the departmental enquiry. No authority could be permitted to hold a departmental enquiry on that basis. There would be no question of sitting in judgment as an appellate Court over the departmental authority. As such, this case is clearly distinguishable from the case of Bhagwandas Verma v. State of Madhya Pardesh (cited supra) decided by Naik J.

In the present case the very elementary principle of natural justice had been violated, namely, that as per verdict of a Court of law, the appellant had been held innocent of the crime, while the departmental authority purported to sit in judgment over the law Court, as if it were an appellate authority. If this were permitted, the very foundation of the administration of justice would tumble down. It is true that this Court cannot sit in judgment over the departmental authority as an appellate Court. But it is equally true that a departmental authority cannot be permitted to sit in judgment over a law Court, as if it were an appellate authority.

Therefore the charge framed in the departmental enquiry could not at all be framed. The further proceedings in the departmental enquiry were just a nullity. They can as well be ignored by this Court. The conclusion of guilt could not be arrived at in the departmental enquiry, as no such enquiry could be held. If no conclusion of guilt could be arrived at, the appellant could not be called upon to show cause against the action proposed to be taken on the basis of the conclusion arrived at in the departmental enquiry. It is thus that the operation of Article 311(2) is affected. The said Article cannot be interpreted in a manner so as to reduce it to a technical provision to be nominally observed by the mere issuance of a show cause notice.

In my opinion, their Lordships of the Privy Council, as also their Lordships of the Supreme Court have clearly laid down that the constitutional guarantee is a substantial one, which ought to be fully complied with, before the extreme penalty of dismissal or removal or the drastic penalty of reduction in rank is visited upon a Government servant The present case would be governed by the principles indicated in the case of M.A. Waheed v. The State of M. P. (cited supra), which I respectfully follow.

10. As the order of dismissal was partly based on admissible material and partly upon inadmissible material, which could not be separated, the entire order was void and inoperative. I hold that under the circumstances, there was no question or there was no need for the plaintiff either to fabricate the investigation or to manipulate the police case diary, when he was innocent of the criminal charges and he could not be said to be interested in manipulating or fabricating anything, as all that was unnecessary in view of the fact that the death of the deceased Mozi did not occur on 7-2-1954. Therefore, there could be no occasion for him to do any of the things or to conceal facts relating to the same crime. Therefore, disagreeing with the lower Courts, I hold that the order of dismissal was void and inoperative. Accordingly it is quashed.

11. As regards the further relief, whether the plaintiff should be granted a decree for arrears of salary, the learned counsel for the appellant stated that the law has now been settled by their Lordships of the Supreme Court in the cases of State of Bihar v. Abdul Majid, AIR 1954 SC 245 and Om Prakash v. State of Uttar Pradesh, (S) AIR 1955 SC 600 and accordingly a Government servant can sue for arrears of salary. Their Lordships of the Privy Council in the case of High Commissioner for India v. I.M. Lall, 75 Ind App 225: (AIR 1948 PC 121) had laid down that a Government servant cannot sue for arrears of salary, but he can only claim a declaration.

Their Lordships of the Supreme Court, however, held that in view of the special provision in the Civil Procedure Code, such a suit can be tenable in India. Their Lordships did not lay down that a declaratory suit would not be untenable. Therefore, the position is that, it is the choice of the Government servant concerned either to sue for a declaration or to claim the actual arrears, that might be due upto the date of the suit. As regards the future arrears, it is enough if he claims another declaration directing the other side to settle the question of arrears of his salary in accordance with the ultimate decision of the law Court.

12. I have to consider another question relating to limitation and the relief to be granted, although it was not argued by either side. The present suit was filed on 8-12-1952. The cause of action was alleged to have, accrued on 22-12-1945, the date of dismissal. The learned trial Judge held that the suit was governed by Article 129 of the Indian Limitation Act, and it was long barred by time, as it had not been filed within six years of the order of dismissal dated 22-12-1945. The plaintiff's contention that the suit was governed by Article 102 of the Limitation Act was negatived. It is true that such a suit for a declaration would be governed by Article 120 of the Limitation Act, if the relief be for mere declaration.

If the relief be for arrears of salary, it would be governed by three years' limitation; But the starting point of limitation would be the final appellate order, which in the present case was 9-4-1947. The date of the original order of dismissal would not be the starting point of limitation. Moreover the period of two months' statutory notice under Section 80 of the Civil Procedure Code, would have to be excluded. The arrears of salary railing due within three years of the date of suit would also be within limitation. On the point of limitation the learned District Judge, differing from the view expressed by the trial Judge, had taken the correct view. But in his opinion the order of dismissal was not void.

13. So far as the relief claimed by the plaintiff was concerned, the prayer clause was not worded properly. All the same, in the body of the plaint, the appellant had challenged the order of dismissal as null and void. As he had paid Court-fees on the consequential relief relating to arrears of salary, it was not necessary for him to pay separate Court-fees on the relief of declaration. In the trial Court, the plaintiff had claimed Rs. 4,724-5-0 towards such arrears.

But in the first appellate Court and this Court he reduced the said claim to Rs. 1,000/-. I would have been inclined to grant a full decree for the arrears of salary for the period of 3 years prior to the date of the suit. But, as the plaintiff himself reduced his claim, I would direct that the plaintiff shall be paid Rs. 1,000/- towards arrears of salary till the date of the suit, namely 8-12-1952. The orders of dismissal dated 23-12-1945 and 9-4-1947 are declared to be void and inoperative. As regards the appellant's salary from the date of the suit, namely 8-12-1952, the respondent shall settle the same on the basis that the appellant was in service and on duty.

14. For the reasons aforesaid, the judgments and decrees of the lower Courts cannot be sustained. They are set aside. This appeal, therefore, succeeds and is allowed with costs throughout. Counsel's fee Rs. 100/- if certified. A decree shall be drawn up declaring that the orders of dismissal dated 22-12-1949 and 9-4-1947 were void and inoperative and that the plaintiff continued to be in service and further that the respondent shall settle the question of appellant's salary from 8-12-1952 onwards on the basis that the latter was and is in service and on duty and that the respondent shall pay Rs. 1,000/- to the appellant towards arrears of salary till the date of the suit.

15. In the last, I may only observe that my view that the order of dismissal was wholly unjustified is strengthened by the observations of a Division Bench of this Court consisting of Sinha C.J. (as he then was) and Mudholkar J. in Roopsingh v. Kalooram, Misc. Petn. No. 16 of 1952, D/- 18-2-1.952 (Nag). The present appellant had filed the said writ petition under Article 226 of the Constitution of India challenging the present order of dismissal.

The petition was dismissed in limine, without notice to the other side. Although the learned Judges constituting the Division Bench expressed that the order impugned was wholly unjustified and contrary to police regulations, the prerogative powers were not exercised on account of the long delay. More-

over this Court in exercise of prerogative powers could not interfere with a pre-constitution matter. Leave for filing Letters Patent Appeal under Clause 10 is re fused.