Sakal Deep Sahai Srivastava v. Union Of India And Another

M.H Beg, J.— The plaintiff-appellant's allegations, in the suit which comes up by special leave before us, may be stated as follows:

2. The appellant was appointed a Clerk on July 29, 1925 at Gorakhpur in the accounts Department of what was then the Bengal North Eastern Railway. In January 1930, he was appointed Assistant Office Superintendent. The Railway was taken over by the State and renamed as Oudh Tirhut Railway (OTR), and, subsequently, it became the North Eastern Railway. In January, 1949, the appellant was appointed officiating Assistant Secretary to the General Manager as a Class II Officer. On May 11, 1949 he was promoted to the post of Office Superintendent. But, on that very date, he was served with a charge-sheet by the Deputy General Manager and called upon to explain, within 3 days, the use of certain first class passes issued to him. On May 14, 1949 he submitted his explanation and justified the use of these passes by quoting specific rules and similar instances. On June 26, 1949 the General Manager reverted the appellant from the post of Office Superintendent to that of the Assistant Office Superintendent with effect from July 1, 1949 without holding any enquiry at all as required by the Disciplinary and Appeal Rules of the Railway. The appellant's case is that, despite his demotion, he continued to perform the duties of the Office Superintendent presumably because he was efficient. On July 27, 1949 the appellant filed an appeal to the General Manager with the result that, on November 29, 1950 the Deputy General Manager had to withdraw the charges with the remarks: “since the appellant had used the passes under a genuine and reasonable belief, no stigma was attached”. Thereupon, the appellant applied to the General Manager for formal reinstatement in the post of Office Superintendent and payment of arrears of his salary. Curiously, the General Manager, while awarding an honorarium of Rs 40 per month for the additional work of Office Superintendent done by the appellant, practically upheld the reversion order with the remark that the appellant's guilt was established. Against this order the appellant filed an appeal on July 30, 1952 to the Railway Board through the General Manager which was duly forwarded to the Railway Board on August 19, 1952. On October 30, 1954 the Railway Board sent a letter to the General Manager stating that the question raised by the appellant was not a “live issue”, and, therefore, there was no reason to interfere with the General Manager's action. On September 30, 1959 the appellant retired at the age of 57 despite his claim that he was entitled to continue up to the age of 60 years. The appellant alleged that he received no intimation about the disposal of his appeal by the Railway Board despite the fact that he went on sending reminders to the Railway Board. On December 15, 1959 the Railway Board had asked for clarification from him. He had also been assured by the then General and Deputy General Managers, in 1961, that his case would be decided to his satisfaction. Furthermore, he alleged that he wrote to the General Manager on March 16, 1962 and, again on March 22, 1962 to find out the result of his appeal, but he received no answer. Therefore, finally, he served a notice on September 24, 1962 under Section 80 of the Civil Procedure Code, upon the General Manager, North Eastern Railway, Gorakhpur, and the Union of India. He claimed that Rs 21,088.04 was due to him as arrears of salary and allowances. He filed his suit on November 27, 1962 for a declaration that from July 1, 1949 the date of illegal reversion, up to September 30, 1959 the date of the appellant's retirement, he was a Railway employee on a salary ranging from Rs 450 to Rs 575 per month, together with 20 per cent special pay from May 10, 1956 to September 30, 1959 and increased gratuity, and, that, after his retirement, he became entitled to the appropriate pension and gratuity allowance. He had also demanded payment of a sum of Rs 19,795, the details of which were given in a schedule, after relinquishing Rs 1,293.04 and interest.

3. The defendants' version was: The plaintiff, who was an Assistant Office Superintendent from September 29, 1948, was promoted to officiate as Office Superintendent with effect from July 12, 1948 in the scale of Rs 360 — 500 with a clear stipulation that the promotion was subject to the plaintiff's selection subsequently and would not give him any claim to the post. It was admitted that the plaintiff was appointed to officiate as Assistant Office Superintendent from January 21, 1949, but, it was alleged that, during the period of 18 days for which he held this post up to February 7, 1949, and, even after that, the plaintiff had illegally utilised certain passes obtained under his signatures. A Selection Board, which met on February 12, 1949, for selection to the post of Office Superintendent, did not find the plaintiff to be the most suitable candidate. Hence, the plaintiff was reverted to the post of Assistant Office Superintendent from February 14, 1949. The plaintiff was again promoted to officiate as Office Superintendent with effect from May 11, 1949, but he was again reverted to his substantive post with effect from July 1, 1949 as a result of the charge-sheet against him. The Railway Administration had decided to appoint a second Selection Board after cancelling the appointment of the first one. The second Selection Board, which met on November 11, 1949, placed the appellant only second in order of merit so that the appellant had to continue as Assistant Office Superintendent. Hence, no question of his promotion as Office Superin- tendent arose. Furthermore, it was stated that the post of the Office Superintendent itself was held in abeyance from July 1, 1949, but, another post of Assistant Office Superintendent was created in its place. It was, therefore, submitted that the plaintiff could never have held a post which was in abeyance. It was asserted that the plaintiff was given reasonable opportunity for showing cause against the action proposed to be taken against him before his reversion, and that, after July 1, 1949, as a result of the representations made by the plaintiff, the General Manager gave the plaintiff a personal hearing and also appointed a Committee of three officers to examine the whole case of the plaintiff, including alleged withdrawal of the charges against him. The Committee reported to the General Manager that the remark made by the Deputy General Manager that no stigma was attached to the plaintiff was not justified. Nevertheless, the General Manager had directed payment of Rs 40 per month for the period from July 1, 1949 to May 31, 1951 for the extra work done by the plaintiff in addition to his duties as Assistant Office Superintendent. The jurisdiction of the Court to question the reversion from a merely officiating post was challenged. Furthermore, it was alleged that the plaintiff had knowledge of the dismissal of his appeal as he was working in the office of the General Manager as Assistant Office Superintendent. The plea of limitation was also raised in defence.

4. The trial court, while dismissing the suit in toto had held that the suit was maintainable. This finding was upheld by the High Court on the plaintiff's appeal which was allowed only to the extent that Rs 180 was decreed as within time as the suit for the remaining arrears of salary was held barred by Article 102 of Limitation Act of 1908. The trial court had denied any declaration to the plaintiff, but the High Court had decreed the suit for declaration in the following terms:

“The suit, therefore, is also decreed for the declaration that the plaintiff, on being superannuated, became entitled to get gratuity and pension, as admissible under the service rules applicable to the case, on the basis that he retired as Office Superintendent in the grade of Rs 360-500. It would, of course, now be open to the plaintiff to move the Authorities concerned for gratuity and pension in accordance with the declaratory decree passed by this Court in his favour”.

5. As regards the enquiry subsequently held with regard to the plaintiff's grievance, the trial court held that it could not take the place of full fledged enquiry to which the appellant was entitled under Section 240 clause 3 of the Government of India Act and the procedural safeguards in a disciplinary action. It, therefore, held that the order of demotion passed against the appellant on June 29, 1949, was illegal. The High Court had on the plaintiff's appeal, after considering the evidence, held:

“Therefore, the order of reversion, which had been passed really as a penal measure, cannot be held to be valid. The inevitable consequence of this finding would be that plaintiff was and remained legally entitled to hold the post of office Superintendent and as such to receive the salary, etc. payable for that post until he retired. In this view of the matter, the relief for declaration, in the circumstances of the case, was redundant and not an essential pre-requisite to his claim for recovery of salary etc. attached to that post, provided, of course, the claim was not barred under Article 102 of the Limitation Act”.

6. The trial court had held that the order keeping the post of an Office Superintendent in abeyance being administrative in nature could not be questioned in a civil suit. But, the High Court held:

“The over-all position, therefore, appears to be that the order of abeyance was not in reality a bona fide administrative order pure and simple but it was a device to obviate the difficulties which would otherwise have been created by the order of reversion, itself, as, in the absence of an order of punishment duly passed, the plaintiff would have a right to revert to the post of the Office Superintendent. In the instant case, from the evidence on record and the relevant circumstances, it clearly appears that the alleged order of abeyance of the post of the Office Superintendent had resulted in definite prejudice and loss to the plaintiff. In the circumstances of the case, in our opinion, the suit was legally maintainable and the decision of the Court below to the contrary is erroneous”.

7. It, therefore, appears to us that the High Court had taken in view that the action against the appellant, being penal and violative of the constitutional protection afforded by Section 240(3) Government of India Act, was void, and, therefore, could be ignored as “non est”. Similarly, the order abolishing the post of Office Superintendent, having been passed with an oblique motive, was not a, bona fide order so that it could be ignored. Even administrative action, to be valid, has to be honest and bona fide. On these findings, the High Court appears to us to have been justified in giving the declaration it did give.

8. The only question of some difficulty raised before us is whether Article 102 or Article 120 of the Limitation Act of 1908 would apply to the case. After having heard the attractive arguments of Mr Yogeshwar Prasad, we have no doubt that a good deal can be said in favour of the contention that a claim for arrears of salary is distinguishable from a claim for wages. But, our difficulty is that the question appears to us to be no longer open for consideration afresh by us, or, at any rate, it is not advisable to review the authorities of this Court, after such a lapse of time when, despite the view taken by this Court that Article 102 of the Limitation Act of 1908 was applicable to such cases, the Limitation Act of 1963 had been passed repeating the law, contained in Articles 102 and 120 of the Limitation Act of 1908, in identical terms without any modification. The Legislature must be presumed to be cognizant of the view of this Court that a claim of the nature before us, for arrears of salary, falls within the purview of Article 102 of the Limitation Act of 1908. If Parliament, which is deemed to be aware of the declarations of law by this Court, did not alter the law, it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be open to doubt. If doubts had arisen, it was for the Legislature to clear these doubts. When the Legislature has not done so, despite the repeal of the Limitation Act of 1908, and the enactment of the Limitation Act of 1963 after the decisions of this Court, embodying a possibly questionable view, we think it is expedient and proper to overrule the submission made on behalf of the appellant that the correctness of the view adopted by this Court in its decisions on the question so far should be re-examined by a larger Bench.

9. This Court, in Shri Madhav Laxman Vaikunthe v. State of Mysore, AIR 1962 SC 8, (1962) 1 SCR 886, (1962) 1 SCJ 134 following the case of Punjab Province v. Pandit Tarachand AIR 1947 FC 23, 1947 FCR 89, (1947) 2 Mad LJ 389 had held that Article 102 Limitation Act of 1908 will apply to such a case. It reiterated this view in Jai Chand Sawhney v. Union of India, (1969) 3 SCC 642 and, again in State of Andhra Pradesh v. Kutubuddin. CA No. 2289 of 1966

10. Furthermore, the finding that the plaintiff had knowledge of the disposal of his appeal by the Railway Board in 1954 is one of fact. Even if this be a finding which is assailable, we do not consider it to be baseless. We do not, therefore, propose to enter into evidence for the purpose of determining the correctness of this finding for ourselves. If this finding is correct, as we are assuming it to be, a suit filed on November 27, 1962 will be barred by time even if Article 120 of the Limitation Act were to be applied. Six years' period of limitation would have expired long before 1962, even if time were to begin to run, as is submitted on behalf of the appellant, from the time the appellant became aware of the decision of the Railway Board.

11. The appellant's contention, however, is that, even if suit was barred by time, he would get three years more of arrears of salary as within time if Article 120 (instead of Article 102) Limitation Act of 1908 was applied and each failure to pay the monthly salary due constituted a fresh cause of action. We cannot accept this view as we have, for reasons already given, held that Article 102 of the Limitation Act, 1908, was correctly applied.

12. We think that the High Court was right in treating the order of reversion passed against the petitioner to be void and inoperative, or “non est”. The result was that no declaration was needed for the purpose of enforcing a claim which fell within 3 years. Consequently, only the amount which fell within three years of the suit filed could be decreed.

13. So far as the remaining part of the declaration is concerned the amount claimable by reason of it would depend upon the rate at which the plaintiff would have been entitled to draw his salary if he had occupied the post which he should have held when he retired. It has to be, therefore, determined what would be the arrears of pension and gratuity to which the plaintiff would have been entitled if he had held the post of Office Superintendent to which he was entitled. We have been informed by the learned Counsel for the North Eastern Railway that, as the appellant was entitled, on the finding of the High Court to hold the post of an Office Superintendent, he could draw a salary in the scale from Rs 450 to Rs 575 with effect from July 1, 1959.

14. Before parting with the case we may observe that on the findings of the High Court about the correctness of which we have no doubt, the appellant was not treated justly. He was even denied promotion due to an order which was not a bona fide one inasmuch as its object was to deprive the appellant of the rights he would have otherwise enjoyed. It is regrettable that a subordinate government servant should be treated in this manner by his superior officers. We hope that, although the claim of the appellant has been found to be barred by limitation, the Union of India will consider the equities of the case and see its way to giving such relief to the appellant as we are precluded under the law, from granting to him due to the operation of the law of limitation.

15. The result is that we modify the decree passed by the High Court to the extent that we hold that the amount which falls due to be paid to the appellant within three years of the filing of the suit (i.e within the period of limitation) in accordance with the above mentioned statement of the learned counsel for the North Eastern Railway will be calculated on the correct basis now stated to us by the Learned Counsel. To this extent we allow the appeal, but we dismiss the rest of the appellant's claim. In the circumstances of the case, the parties will bear their own costs throughout.