By the Court:— The petitioner challenges validity of an order passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad, as contained in Annexure I to the writ petition.
2. A perusal of the impugned order shows, inter alia, that the application of respondent No. 1 claiming payment of salary for the period 4 March, 1979 to 26 August, 1993 has been allowed on a finding that it is no doubt correct that the civil Court has not specifically directed payment of salary but once the termination order of the applicant has been declared to be illegal, void and inoperative and there has been no material on record to show that he was gainfully employed during the period in question, he is entitled for the back-wages for the period in question as the principles of “no work no pay” will not be applicable to his case for the reason because he was willing to work but was kept away from work for no fault of his own and that he is deemed to have worked during that period.
3. Satish Chaturvedi, learned counsel for the petitioner, with reference the decision of the Supreme Court in Union of India v. Sh. Punnilal [1997 (1) L.L.N 72], contended that since no claim for arrears of salary having been made before the Civil Court, the principles enshrined under Order II, rule 2 of the Code of Civil Procedure clearly applies and should not have been granted by the Central Administrative Tribunal and it has committed an apparent error of law in allowing the claim of respondent No. 1 in relation to arrears of salary.
4. In order to appreciate the contention of Sri Chaturvedi, it will be relevant to refresh the provision of Order II, rule 2 of the Code of Civil Procedure as it stands in our State of Uttar Pradesh by virtue of the State amendment.
“2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.— Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect on the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.— A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.
Explanation I. For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
Explanation II. For the purposes of this rule a claim for ejectment of the defendant from immovable property let out to him and a claim for money due from him on account of rent or compensation for use and occupation of that property, shall be deemed to be claims in respect of distinct causes of action”.
4.1 The question arises as to whether the principles enshrined in rule 2 of Order II of the Code of Civil Procedure are attracted in the instant case? Sub-rule (2) mandates a plaintiff to include the whole of his claim in respect of a cause of action; but may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Sub-rule (2) states that whenever a plaintiff omits to sue in respect of any portion of his claim either intentionally or otherwise, in that event he shall not afterwards sue in respect of the portion to sue for any relief so omitted. Sub-rule (3) contemplates that if a person is entitled to have more than one relief in respect of the same cause of action he may sue for all or any such relief but if he omits, except with the leave of the civil Court, to sue for all such reliefs, afterwards he cannot sue for omitted reliefs.
4.2 A perusal of Para. 18 and prayer of the plaint which has been appended as Annexure 1 to the supplementary affidavit shows that the respondent No. 1 had sought for from the civil Court a decree of declaration to the effect that the order of cancelling his appointment terminating his services as illegal, void and not binding on him who is deemed to have continued in service and is entitled to get his pay and allowances in the interest of justice. Annexure SA 2, which is copy of the judgment, dated 28 April, 1984, in C.A No. 615 of 1981, shows that the suit of respondent No. 1 was decreed.
4.3 Once the plaintiff's prayer that he be deemed to be continuing in service of the defendant having been allowed which in the absence of the decree being set aside, is binding on the appellant.
4.4 The decision in Union of India [1997 (1) L.L.N 72], (vide supra), relied upon by Sri Chaturvedi is clearly distinguishable for the reason that the suit in question was tiled before the civil Court for a declaration directing the defendants, their agents and servants, to consider the plaintiff's claim for promotion to the category of driver C and it was held that the relief having been given and become final by virtue of Order n, rule 2 of the Code of Civil Procedure, the plaintiff is debarred to claim the relief or back-wages, besides the authority under the Payment of Wages Act has no inherent jurisdiction to entertain such a claim.
4.5 Thus, we do not find any merit on the submission of Sri Chaturvedi.
5. Further it is not the case of Sri Chaturvedi that the Central Administrative Tribunal had authority to decide the case on merit. We had already interpreted the effect of the decree passed by the civil Court.
6. Thus, we do not find any merit in this writ petition.
7. It is, consequently dismissed but in the peculiar facts and circumstances without there being any order as to costs.
Petition dismissed
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