Shafqat Husain v. Municipal Board, Sambhal — 1966 DIGILAW 386 (ALL)

JUDGMENT V.G. Oak, J. - The short point for consideration in this Second Appeal is whether the suit instituted by the appellant is within time or not. Shafqat Husain appellant was an employee of the Municipal Board of Sambhal (district Moradabad). On 22-12-1958 the President of the Municipal Board passed an order dismissing the appellant from service. Against that order the plaintiff filed a departmental appeal. That departmental appeal was dismissed by the Prescribed Authority. The order was communicated to the plaintiff on 28-6-1960. On 2-1-1961 Shafqat Husain filed the suit, which has given rise to this Second Appeal. The plaintiff prayed for a declaration that the order of dismissal dated 22-12-1958 was illegal and void, and the plaintiff was still in the service of the defendant-Municipal Board. The plaintiff's claim was resisted by the Municipal Board, Sambhal. One of the pleas raised in defence was that the suit was barred by limitation. The trial Court took up that question as a preliminary issue. The Court upheld the defendant's plea that the suit was barred by time. The suit was, therefore, dismissed. An appeal filed by the plaintiff was dismissed by the Additional Civil Judge, Moradabad. Shafqat Husain plaintiff has come to this Court in Second Appeal. 2. Limitation for such suits has been prescribed by sub-Sec. (3) of Section 326 of the U. P. Municipalities Act, 1916 (hereafter referred to as the Act). Section 326. (3) states: "No action stich as is described in sub-Sec. (1) shall ...... be commenced otherwise than within six months next after the accrual of the cause of action." 3. Sub-Sec. (1) of Section 326 of the Act prescribes for a notice to be given to a Municipal Board before filing a suit against it. Learned counsel for the parties are agreed that the period of limitation is extended by two months as a consequence of the provision of sub-Sec. (1) of Section 326. The combined effect of sub-Sec. (1) and sub Sec. (3) of Section 326 is that the aggrieved party may file a suit within eight months after the accrual of the cause of action. The parties are, however, not agreed as regards the date of accrual of the cause of action. The plaintiff's case is that the cause of action arose on 28-6-1960, when the order dismissing the departmental 'appeal was communicated to the plaintiff. The parties are, however, not agreed as regards the date of accrual of the cause of action. The plaintiff's case is that the cause of action arose on 28-6-1960, when the order dismissing the departmental 'appeal was communicated to the plaintiff. The defendant's case is that the cause of action accrued on 22-12-1958, when the impugned order of dismissal was passed. 4. This question came up for consideration before the Supreme Court in Sita Ram Goel v. The Municipal Board, Kanpur, 1959 A.L.J. 106. It was held in Sita Ram's case', that the aggrieved Municipal employee may either file an appeal or he may straight away challenge the validity of the resolution on any ground available to him in law. There is nothing in provisions of Section 58 to prevent him from doing so, and if without exercising his right of appeal which is given to him by the statute he filed a suit in the Civil Court to establish the ultra vires or the illegal character of such a resolution it could not be urged that such a suit was premature, he not having exhausted the remedies given to him under the statute. 5. There is nothing in provision of Section 58 which expressly or impliedly bars his right of suit. The mere filing of an appeal has not the effect of holding the order of the Board in abeyance or postponing the effect thereof until the decision of the appeal. 6. Sita Ram's case' Was decided by the Supreme Court on 19-8-1958. If the law is today the same as in August 1958, it is clear that the two lower courts are right in dismissing the plaintiff's claim on the ground of limitation. But Mr. K. C. Agrawal, appearing for the appellant, urged that the law has been altered after August 1958. 7. The appellant relies upon certain regulations framed by the State Government in January 1959. Those regulations were published in Part III of the the P. Gazette, dated 31-1-1959. Regulation No. 22 is in these terms: "No servant shall attempt to seek in a Court of law a decision on grievances arising out of his employment or conditions of service, even in cases where such a remedy is legally admissible without first exhausting the normal official channels of redress." 8. Mr. Regulation No. 22 is in these terms: "No servant shall attempt to seek in a Court of law a decision on grievances arising out of his employment or conditions of service, even in cases where such a remedy is legally admissible without first exhausting the normal official channels of redress." 8. Mr. Ambika Prasad, appearing for respondent No. 1, expressed some doubt as regards validity of these regulations. It is mentioned in the Government notification that the State Government had made the regulations by virtue of powers conferred on it by sub-Sec. (2) of Section 297 of the Act. Section 297 (2) states:-- "Provided that the State Government may, if it thinks fit, make regulations consistent with this Act in respect of any of the matters specified in Clauses (d) and (h) to (n) of sub-Sec. (1) . . . . ." 9. Clause (k) of sub-Sec. (1) of Section 297 deals. with conditions of service. Under sub-Sec. (2) read with Cl. (k) of sub-Sec. (1) the State Government was competent to make regulations with respect to conditions of service. The regulations made by the State Government in January 1959 are valid. 10. According to Section 300 of the Act, such regulations do not take effect until they have been published in the official Gazette. So the regulations in question did not come into force till 31-1-1959. These regulation's were not in force in August 1958, when Sita Ram's case' was decided by the Supreme Court. 11. Section 326 lays down a rule of limitation. Mr. Ambika Prasad urged that the State Government could not frame a regulation, which is inconsistent with sub-Sec. (3) of 'Sec. 326 of the Act. I agree. But the regulation has an important bearing on the accrual of the cause of action. 12. The learned Civil Judge gave two reasons in support of his view that the law today is the same as, that declared by the Supreme Court in Sita Ram's case'. The first reason given by the learned Civil Judge is that the regulation relied on by the plaintiff does not prohibit filing of a suit by an employee against his dismissal. That contention would perhaps be valid. .if the plaintiff took up the position that the dismissal is valid, but the punishment is harsh. But that is not the plaintiff's stand in the present case. That contention would perhaps be valid. .if the plaintiff took up the position that the dismissal is valid, but the punishment is harsh. But that is not the plaintiff's stand in the present case. He seeks a declaration that the order dated 22-12-1958 is illegal and void, and the plaintiff is still in the service of the defendant-Municipal Board. if the plaintiff's stand on merits is correct, it would mean that he is still a servant of the Municipal Board. Regulation No. 22 lays down that no servant shall attempt to seek in a Court of law a decision on grievances arising out of his employment without first exhaustince the normal official channels of redress. If the plaintiff's stand is correct, his case falls within the ban of regulation No. 22. 13. The second reason given by the learned Civil Judge is that the regulations published on 31.1.1959 merely replace old regulations on the same subject. it is mentioned in the notification dated 23.1.1959 that new regulations were being framed in supersession of a notification, dated 4.8.1949. I therefore, examined the regulations framed by the State under the notification dated 4.8.1949. There were 14 regulation in all. Regulation No. 13 prohibited direct approach to members of Government. Regulation No. 14 prohibited ventilating grievances through the press. But the regulations of 1949 did not contain any provision corresponding to regulation No. 22 framed in January 1959. It is not correct to say that the law on the subject remains substantially the same. 14. Parties are agreed that the suit has to be filed within eight months after the accural of the cause of action. The difficulty lies in fixing the date of accrual of the cause of action. The cause of action means the bundle of facts which have to be established to entitled a plaintiff to a decree. Under the old law, the cause of action consisted of the order of dismissal dated 22.12.1958. But the law was altered in January 1959. According to regulation No. 22, a Municipal employee must not approach the Civil Court without first exhausting the departmental remedy. Sec 74 of the Act provides for a departmental appeal against an order of dismissal. So, according to regulation No. 22, the aggrieved Municipal employee must file an appeal under Section 74 before approaching the Civil Court. If a suit is filed with out exhausting the departmental remedy. Sec 74 of the Act provides for a departmental appeal against an order of dismissal. So, according to regulation No. 22, the aggrieved Municipal employee must file an appeal under Section 74 before approaching the Civil Court. If a suit is filed with out exhausting the departmental remedy. Such a suit would be premature. After 31.1.1959 the cause of action consists of two parts - (i) the order of dismissal from service. (ii) the order dismissing the departmental appeal. Cause of action is complete when both the stages are over. 15. In the present case the impugned order of dismissal was passed on 22.12.1958. That was before the new regulations came into force. As the law stood then, it was open to the plaintiff to approach the Civil Court immediately after 22.12.1958. At the same time it was open to the plaintiff to file a suit at any time up to 22.8.1959. In the meanwhile the law was altered. New regulations were framed. After 31.1.1959 it was impossible for the plaintiff to file a civil suit without exhausting the normal official channels of redress. It meant that he had to await the decision of the departmental appeal before filing a civil suit. After 31.1.1959 the cause of action consisted of two parts - (i) the order of dismissal dated 23.12.1958 and (ii) communication on 28.6.1960 about the order dismissing the departmental appeal. 16. It appears that the order dismissing the departmental appeal was passed some time in April 1960. It was suggested for the respondent that might be the starting point of limitation. In Sita Ram's case, it was held that the cause of action for filing a suit challenging the order of dismissal accrued to the Municipal employee the moment the resolution of the Board is communicated to him. That is the date of commencement of the period of limitation. On the same reasoning, the cause of action arose when the order dismissing the departmental appeal was communicated to the plaintiff. Thus he cause of action accrued to the plaintiff on 28.6.60. 17. It is true that the law declared by the Supreme Court is binding on all Courts in India. But law may be altered subsequent to a declaration by the Supreme Court. As explained above, Sita Ram's case was decided by the Supreme Court. Thus he cause of action accrued to the plaintiff on 28.6.60. 17. It is true that the law declared by the Supreme Court is binding on all Courts in India. But law may be altered subsequent to a declaration by the Supreme Court. As explained above, Sita Ram's case was decided by the Supreme Court. As explained above, Sita Ram's case was decided by the Supreme Court on 19.1958, and law in Uttar Pradesh was altered in January 1959. The suit was filed in January 1961. In disposing of the question of limitation i the present suit the matter will not be governed by the rule laid down by the Supreme Court in Sita Ram's case. The matter has been complicated by regulation No. 22 framed in January 1959. 18. As discussed above, the complete cause of action accrued to the plaintiff on 28.6.1960. The suit was filed on 2.1.1960. The suit was filed on 2.1.1961. That was within eight months from accrual of the cause of action. The plaintiff's claim is within limitation. 19. The appeal is allowed. The case is remanded to the trial court for proceeding with the trial of the suit on the footing that the plaintiff's claim is within limitation. The plaintiff-appellant shall get his costs from defendant-respondent No. 1 n this Court and the lower appellate Court. Costs before the trial Court will abide the Court.