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PETITIONER: RAMESHWARLAL

       Vs.

RESPONDENT: MUNICIPAL COUNCIL, TONK & ORS.

DATE OF JUDGMENT:       27/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) MAJMUDAR S.B. (J)

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The petitioner  claims that  he  has  been  denied  the salary for  period from  September 10,  1987 to  August  18, 1988. He  claims  to  have  worked  in  the  office  of  the Municipal Council,  Tonk. He filed writ petition in the High Court in  February 1990.  The learned single Judge held that since it  is a  claim recoverable  in a  civil  action,  the discretionary power under Article 226 of the Constitution is not  exercisable.   Accordingly,  he   dismissed  the   writ petition. The  same came  to be  confirmed in  the  impugned order of  the Division  Bench made on May 6, 1996 in Special Appeal No.218/96. Thus, this special leave petition.      It is  not necessary  for us to go into the question of the legality  of the  order of the High Court in refusing to grant the  relief. It  is axiomatic that the exercise of the power under  Article 226  being discretionary,  the  learned single  Judge  as  well  as  the  Division  Bench  Have  not exercised the  same to  direct the  respondent  to  pay  the alleged arrears  of salary  alleged to be due and payable to the petitioner.  Under these  circumstances, the only remedy open to  the petitioner  is to avail the action in the suit. Since the  limitation has  run out  to file  a civil suit by now, which  was not so on the date of the filing of the writ petition, the  civil Court  is required  to  exclude,  under Section 14  of the  Limitation Act,  1963, the  entire  time taken by  the High Court in disposing of the matter from the date of the institution of the writ petition.      Normally for  application  of  Section  14,  the  Court dealing with  the matter in the first instance, which is the subject of  the issue  in the  later case,  must be found to have lack  of jurisdiction  or other cause of like nature to entertain  the   matter.  However,   since  the  High  Court expressly declined to grant relief relegating the petitioner to a  suit in  civil Court,  the petitioner  cannot be  left remedyless. Accordingly,  the time  taken in prosecuting the proceedings before  the High  Court and this Court obviously

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pursued diligently  and bona fide, needs to be excluded. The petitioner is  permitted to issue notice to the Municipality within four weeks from today. After expiry thereof, he could fine suit  within two  months thereafter.  The  trial  Court would consider  and dispose of the matter in accordance with law on merits.      The special leave petition is disposed of accordingly.