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PETITIONER: SAKAL DEEP SAHAI SRIVASTAVA

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT27/11/1973

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH MATHEW, KUTTYIL KURIEN

CITATION:  1974 AIR  338            1974 SCR  (2) 485  1974 SCC  (1) 338  CITATOR INFO :  RF         1977 SC1466  (31)  RF         1980 SC1773  (17)

ACT: Limitation  Act 1908 (9 of 1908) Art. 102-Arrears of  salary of public servant Govt. of India Act 1935.

HEADNOTE: The appellant, who was Assistant Office Superintendent,  was promoted as Office Superintendent but immediately thereafter was  reverted  after  issuing a  charge  sheet  but  without holding  an enquiry.  He, however, continued to perform  the duties of Office Superintendent.  A few months later charges against  him were withdrawn with the remark that "no  stigma was attached to him".  Thereupon the appellant applied to be reinstated  in  the post of Office  Superintendent  and  for payment  of arrears of his salary.  But his reversion  order was  upheld with the remark that his guilt was  established. The  appellant  retired  in 1959 and filed a  suit  in  1962 claiming  arrears  of  salary  and  allowances  and  for   a declaration  that from the date of reversion to the date  of retirement  he  was a Railway employee on a  salary  ranging from Rs. 400 to 575 and for certain other benefits. The trial court, while dismissing the suit in toto, had held (i)   that  the  suit  was  maintainable  but   denied   any declaration  to  him  and (ii) that the  order  of  demotion passed against him was illegal.  The High Court decreed  the suit and held that the suit for arrears of salary, except to the  extent  of  Rs. 180/- was barred by  art.  102  of  the Limitation Act, 1908.  The High Court further held that  the action  against the appellant being penal and  violative  of the  constitutional protection afforded by s. 240(3) of  the Government of India Act, 1935 was void and, therefore, could be ignored as non est.  [489F-H] On  the question (i) whether art. 102 of the Limitation  Act would  apply to the case and (ii) whether a declaration  was needed  for  enforcing  a  claim  which  fill  within  time. Allowing the appeal in part. HELD  : (1) In Shri Madhav Laxman Vaikunthe v. The State  of Mysore  (1962) 1 SCR 886, which view was reiterated  in  two later decisions, it was held that art. 102 of the Limitation Act would apply to a case of this kind.  Though a good  deal

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can  be  said in favour of the contention that a  claim  for arrears of salary is distinguishable from a claim for wages, the question is no longer open for consideration afresh.  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, 1908  was applicable to cases of this kind, the Limitation Act of 1963 had been passed repeating the law, contained in article  102 of the Limitation Act, 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, as in the instant case, falls within the purview  of article  102  of the Limitation Act, 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.  It  was  for  the legislature to clear these doubts.  When the legislature has not  done so despite the repeal of the Limitation  Act  1908 and  the enactment 1 of the Limitation Act, 1963  after  the decision  of this Court it is inexpedient to  reexamine  the correctness  of  the  view  adopted by  this  Court  in  its decisions on the question. [489-FH] The  Punjab Province V. Pandit Tarachand [1947]  F.C.R.  89, 93,  108,  Jai Chand Sawhney v. Union of  India  [1969](III) S.C.C: p. 642 and State of Andhra Pradesh v.Kutubuddin,civil Appeal No. 2289 of 1966 decided on 8-10-69, referred to. (2)The  High  Court  was right in treating  the  order  of reversion to be void and inoperative or non est.   Therefore no  declaration  was needed for the purpose of  enforcing  a claim which fell within three years.  Consequently only  the amount  which  fell  within 3 years of  the  suit  could  be decreed in accordance with the statement of the counsel  for the respondent. [490F] 486

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal 1236 of 1970. Appeal  by Special Leave from the Judgment and Decree  dated the 6th November, 1968 of the Allahabad High Court in  First Appeal No. 361 of 1964. Yogeshwar  Prasad,  S.  K.  Bagga  and  S.  Bagga;  for  the Appellant. S. N. Prasad and s. P. Nayar, for the Respondent. The Judgment of the Court was delivered by BEG,  J.-The plaintiff appellant’s allegations, in the  suit which comes up by special leave before us, may be stated  as follows The  appellant  was  appointed  a  Clerk  on  29-7-1925   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 (0.  T. R.), 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 11-5-1949, 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  14-5-1949,   he submitted  his  explanation and justified the use  of  these passes by quoting specific rules and similar instances.   On

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29-6-1949,  the General Manager reverted the appellant  from the  Post of office Superintendent to that of the  Assistant Office  Superintendent  with effect  from  1-7-1949  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 27-7-1949, the appellant filed an  appeal to the General Manager with the result that, on  29-11-1950, 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 30-7-1952 to the Railway Board through the General Manager  which was daily forwarded to the Railway  Board  on 19-8-1952.  On 30th October, 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 30-9-1959, 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 487 the  Railway Board despite the fact that he went on  sending reminders. to the Railway Board.  On 15-12-1959, 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 16-3-1962, and, again on  22-3-1962,  to find out the result of his appeal but he received no answer. Therefore,  finally  he served a notice on  24-9-1962  under Section  80 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 27-11-62’ for a declaration   that  from  1-7-1949,  the  date  of   illegal reversion,.  up  to 30-9-1959, the date of  the  appellant’s retirement,  he was a Rail-way employee on a salary  ranging from,  Rs. 450/- to Rs. 575/- per month, together  with  20% special  pay  from  10-6-1956  to  30-9-1959  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. The  defendants’  version was : The plaintiff,  who  was  an Assistant Office Superintendent from 29-9-1948, was promoted to officiate as.  Office Superintendent with effect from 12- 7-1948 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 21-1-1949, but,  it was alleged that, during the period of 18 days  for which  he  held this. post upto 7-2-1949,  and,  even  after

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that,  the plaintiff had illegally utilised  certain  passes obtained under his signatures.  A Selection Board, which met on   12-2-1949,  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  14-2-1949. The  plaintiff  was again promoted to  officiate  as  Office Superintendent with effect from 11-5-1949, but he was  again reverted  to his substantive post with effect from  1-7-1949 as  a result of the charge sheet against him.   The  Railway administration  had  decided to appoint a  second  Selection Board after canceling the appointment of the first one.  The second  Selection.  Board, which met on  11-11-1949,  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  Superintendent  arose.  Furthermore, it  was  stated that  the post of the Office Superintendent itself was  held in  abeyance from 1-7-1949, 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 1-7-1949, as a result of the representation made by the. 488 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  charge  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 1-7-1949 to 31-5-1951 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. 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. 360/5001-.   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". As regards the enquiry subsequently held with regard to  the

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plaintiff’s  grievance, the Trial Court held that  it  could not  take  the  place of fullfledged enquiry  to  which  the appellant was entitled under section 240 cl. 3 of the  Govt. of India Act and the procedural safeguards in a disciplinary action.   It,  therefore, held that the  order  of  demotion passed against the appellant on 29-6-1949 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 prerequisite 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".               489               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  overall 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". 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) Govt. 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 bonafide order  so that.  it could be ignored.  Even administrative action,  to be valid, has to be honest and bonafide.  On these findings, the  High  Court  appears to us to have  been  justified  in giving the declaration it did give. 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

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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 declaration 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 possible questionable  view,  we think it is expedient and proper to 490 over-rule  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 reexamined by a larger Bench. This Court, in Shri Madhav Laxman Vaikunthe V. The State  of Mysore  (1),  following the case of the Punjab  Province  V. Pandit  Tarachand (2), 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(3), and,  again in State of Andhra Pradesh V. Kutubuddin(4). 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 27-11-1962 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. 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 Art. 102 of the  Limitation  Act, 1908, was correctly applied. 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. 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

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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 1-7-1959. ------------------------------------ (1)  [1962] 1 S.C.R. p. 886 at 894. (2)  [1947] F.C.R. 89, 93, 108. (3)  [1969] (III) S.C.C. p. 642. (4)  Civil Appeal No. 2289 of 1966 decided on 8-10-1969. 491 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 bonafide  one  inasmuch  as its object was  to  deprive  the appellant of the rights he would have otherwise enjoyed.  It is  regrettable that a subordinate Govt. 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. 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. P.B.R.                  Appeal allowed in part. 492