Umasankar Das v. STATE OF WEST BENGAL — 1973 DIGILAW 93 (CAL)

JUDGMENT 1. THIS is an appeal by the plaintiff against the judgment of reversal. The plaintiff instituted the suit on the 30th January, 1956 on the following allegations. The plaintiff at the material time was employed as a clerk in a temporary post in the Police ration Store at Bankura in July, 1946 on a monthly remuneration of Rs. 40/-clearness allowance Rs. 24/-. By an order the plaintiff was removed from service with effect from 4th May, 1948. The order is as follows: "besides being negligent in his work, he was suspected of dishonesty during the investigation of S.R. Case No, 11/247 under sections 381, 408 and 511 of the Indian Penal Code (Ration Store that case. He is, therefore, considered unfit to be retained in service. He is a temporary incumbent and is discharged with effect from this fore-noon (Ret D. O. No. 1097 dated 4.5.48)". 2. THE plaintiff contended that this order was in violation of the provisions of section 240 (3) of the Government of India Act, 1935, read with Rule 55 of the civil Service (Classification control and appeal) Rules. As such the order was void and a nullity. The plaintiff preferred an appeal to the Home Minister and there was some inquiry at his back. Even so, the report presumably to the credit of the plaintiff was not accepted and a further enquiry was caused by some other Officer. The plaintiff ultimately made a written representation to the Chief Minister, West Bengal on September 27, 1954, but no reply was received. Thereafter on due service of notice under section 80 of the Code of civil Procedure the present suit was instituted as already noted on the 30th January, 1956. The plaintiff instituted the suit in forma pauper is and prayed for a declaration that the said order of dismissal was ultra vires and void and the service was not terminated by the said order and the same was still subsisting and the plaintiff was entitled to salary, dearness allowance attached to the post from the date of his dismissal till the institution of the suit. The plaintiff in this suit claimed salary, dearness allowance etc. from January 1, 1950 to December 31, 1955 in all for six years, amounting to Rs. 4608/ -. The arrear salary prior to the said date was given up. 3. The plaintiff in this suit claimed salary, dearness allowance etc. from January 1, 1950 to December 31, 1955 in all for six years, amounting to Rs. 4608/ -. The arrear salary prior to the said date was given up. 3. THE suit was contested by the state of West Bengal and a written statement was filed on its behalf. It was stated therein that the post was purely temporary and terminable without notice. It was further slated that the plaintiff was found unfit to be retained in government service due to the fact that besides being negligent to his work, he was suspected of dishonesty during the investigation of the criminal case recorded at Bankura namely the S.R. case No. 112/47 under sections 381, 409 and 511 of the Indian Penal Code. It was stated that the dismissal was in accordance with law and section 240 (3)of the Government of India Act, 1935 and Rule 55 of Civil Service (Classification, control and Appeal) Rules had no application as the plaintiff was purely a temporary government servant whose service was terminable without any notice. For the above reasons it was submitted that the suit should be dismissed. 4. ON a trial on evidence the learned munsif found that the impugned order of termination was invalid and the plaintiff was not removed from service in accordance with law. It was further held that the suit was maintainable and the notice under section 80 of the Code of Civil Procedure was valid and sufficient in law. About the point of limitation, it was held by the learned Munsif that as the impugned act was absolutely illegal and ultra vires it furnished a recurring cause of action further the representation to the Chief Minister was of September 27, 1954 and the suit was not barred under Article 120. Accordingly the plaintiff was entitled to a decree for a declaration that the dismissal was ultra vires and also for recovery of such wages which the plaintiff was entitled to recover under the law. The suit was governed by Article 102 of the Indian Limitation Act for recovery of wages and the relief would be limited to 3 years. Accordingly the plaintiff was entitled to a decree for a declaration that the dismissal was ultra vires and also for recovery of such wages which the plaintiff was entitled to recover under the law. The suit was governed by Article 102 of the Indian Limitation Act for recovery of wages and the relief would be limited to 3 years. Accordingly the suit was decreed in part declaring that the impugned order purporting to dismiss the plaintiff's service under the government was illegal and ultra vires and the plaintiff was entitled to recover wages of the back period amounting to Rs. 2304/ -. Against this decision an appeal was preferred by the State of West Bengal and the appellate court held in agreement with the learned Munsif that the impugned order was illegal and ultra vires being in violation of the provisions of section 240 (3) of the government of India Act. Notice under section 80 of the Code of Civil Procedure was also found to be valid but in disagreement with the trial court it was held that section 23 of the Indian Limitation act can have no application to a declaratory suit as there is no recurring cause of action for a declaratory relief. It was held that the suit, having been filed six years after the date of the impugned order, was barred by limitation under article 120 of the Indian Limitation Act. The appellate court did not accept the finding of the learned Munsif that the cause of action of the suit arose on September 27, 1954 when the representation of the plaintiff Chief Minister was rejected as according to it the cause of action was complete on May 4, 1948 when the plaintiff was dismissed. Accordingly it was held that the prayer for recovery of wages was a relief ancillary to the impugned prayer for declaration that the plaintiff's service was illegally terminated. As the main prayer was barred by limitation, the ancillary prayer would also fail. The appeal accordingly was allowed and the decree of the trial court was set aside and the plaintiff's suit was dismissed. The present second appeal is by the plaintiff against the aforesaid decision of the lower appellate court. 5. MR. As the main prayer was barred by limitation, the ancillary prayer would also fail. The appeal accordingly was allowed and the decree of the trial court was set aside and the plaintiff's suit was dismissed. The present second appeal is by the plaintiff against the aforesaid decision of the lower appellate court. 5. MR. Asoke Kumar Sen Gupta learned Advocate for the plaintiff appellant has submitted that since the order was void ab initio, there was a recurring cause of action against the said order which was a nullity as the defendant had always the subsisting right to work in his service which was never terminated in eye of law and such right was denied. He has further contended that the wrong caused by the impugned order was a continuing wrong and accordingly it could not be barred by limitation. He has further contended that in any event limitation would run from September 27, 1954 when the representation of the plaintiff to the Chief Minister was rejected and as since Article 120 would apply, the suit was within time. There was a further contention that article 131 of the Limitation which provides for 12 years limitation for establishing a periodically recurring right would apply in the case. 6. THERE could be no dispute that the impugned order of termination was in violation of the provision of section 240 (3) of the Government of India Act. 1935. Even though the plaintiff was a temporary servant, any order which purports to terminate his service by way of punishment or puts a stigma on his character entailing penal consequences, would entitle the plaintiff to protection as provided in sub-section (3) of section 240 of the Government of India Act, 1935 which is as follows: "no such person as aforesaid shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action to be taken in regard to him. . . . . . " The order of termination impugned in the suit is obviously void and a nullity and would be declared to be so in this suit provided the suit is otherwise maintainable in law. 7. . . . . . " The order of termination impugned in the suit is obviously void and a nullity and would be declared to be so in this suit provided the suit is otherwise maintainable in law. 7. AN order of Government which may be otherwise void and a nullity being in violation or excess of constitutional or statutory provisions does not merely for such reason cease to exist or is or becomes ineffective or unenforceable. It is and continues to be an enforceable and effective order so long as it is not set aside by a court of law of competent jurisdiction or otherwise or declared to be void and a nullity by such court. When the court is approached for such declaration or order, the proceeding necessary for the purpose has to be instituted within such time as provided in the law of limitation which limits the time after which a proceeding cannot be instituted or maintained in a court of law. As is well known the limitation Act does not create any right but being procedural law it bars the remedy which can only be exercised up to a certain period and not thereafter. 8. ACCORDINGLY if the plaintiff wanted to have a decree of court declaring the impugned order as void and a nullity and also to enforce his other rights based on such declaration, he has to institute appropriate proceeding in a court of competent jurisdiction within the time prescribed by law of limitation. Mr. Sen Gupta however relied on several decisions in support of his contention that such order is wholly inoperative and ineffective even without a declaration from court. He referred to the decision in (1) Union of India v. P. V. Jagannath Rao, A. I. R. 1968 M. P. 204, in which it was observed : "it is thus clear that an order of dismissal passed in violation of section 240 of the Government of India Act, 1935 is inoperative and void from the very beginning and has no legal effect whatsoever. When in a suit such an order is declared to be inoperative and void, the declaration of the court does not make the order void but merely declares or exposes the already existing infirmity in the order. When in a suit such an order is declared to be inoperative and void, the declaration of the court does not make the order void but merely declares or exposes the already existing infirmity in the order. Such an order of dismissal being ineffective from its inception, the civil servant continues in service inspite of the order and it is not necessary that the order should be cancelled or civil servant should be reinstated. " This case does not support the proposition Mr. Sen Gupta wants to enunciate that such order is void without any declaration from Court. In the case recited above it is noted that the respondent prayed in the earlier suit for a declaration that the order of termination of his services was illegal which was decreed and was ultimately confirmed by the High Court. The respondent was reinstated and thereafter he filed the instant suit for arrears of salary till reinstatement. In view of the decree, it was held that the respondent must be deemed to have remained in service and was entitled to salary every month. The claim for arrears of salary was thus based on the declaration made by the Court earlier that the order of dismissal was invalid and void. In (2) Punjab Province v. Tarachand, A.I.R. 1947 F.C. 23, the connected suit was for declaration that the order of dismissal was void and of no effect and also for arrears of salary. The decree for declaration which was passed was not disputed and the relevant article for recovery of arrear salary, it was held, was neither Article 131 nor Article 120 but Article 102. In the (3) High Commissioner for India and another v. I. M. Lall, A.I.R. 1948 P.C. 121, the Privy Council affirmed the declaration that the purported dismissal of the respondent was void and inoperative and the respondent remained a member of the Indian Civil Service at the date of institution of the suit and the right to recover arrear of salary was disallowed as such claim was found to have no statutory basis. Same declaration that the order of dismissal was void and inoperative was made in (4) Khem Chand v. Union of India, A.I.R. 1958 S.C. 300, with the further declaration that the appellant was a member of the service at the commencement of the suit. Same declaration that the order of dismissal was void and inoperative was made in (4) Khem Chand v. Union of India, A.I.R. 1958 S.C. 300, with the further declaration that the appellant was a member of the service at the commencement of the suit. In (5) Debendra Pratap v. State of Uttar Pradesh, A.I.R. 1962 S.C. 1334, it was observed : "the effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfluous. The effect of the adjudication of the civil courts is to declare that the appellant had been wrongfully prevented from attending to his duties as a public servant. " 9. These decisions, it appears, support the proposition of law as indicated above namely an order in violation of statutory or constitutional provisions if challenged directly or collaterally has to be declared void and nullity by a decree of court. Upon such declaration the order of dismissal becomes ineffective from its inception and the civil servant continues in service. The claim to arrear salary of the public servant who has been wrongfully prevented from attending to his duties follows such declaration that the relevant order is void and a nullity and without such declaratory decree, the claim for arrears of salary simplifier will not be maintainable in law. 10. Regarding the claim for wages we shall refer to the decisions cited at the bar. In Madhav Laxman Vaikun the v. State of Mysore, A.I.R. 1962 S.C. 8, the Supreme Court affirmed the declaration granted by the trial court that order of reversion of the appellant passed by government impugned in the case was void. In regard claim of arrear salary article 102 was held applicable and the claim was allowed from the date it accrues for a period of three years and two months proceeding the date of suit and not from the date of declaration. In (6) Union of India v. Ram Nath Chitory, A.I.R. 1966 Punjab 500, it was observed : "by granting a declaration about the legality or illegality of dismissal the Court does not create any right in the plaintiff. It merely removes an illegal order from the way of the plaintiff. In (6) Union of India v. Ram Nath Chitory, A.I.R. 1966 Punjab 500, it was observed : "by granting a declaration about the legality or illegality of dismissal the Court does not create any right in the plaintiff. It merely removes an illegal order from the way of the plaintiff. That would not affect the accrual of the cause of action in any manner and the cause of action would still arise on the day the salary for a particular period becomes due under the terms and conditions of employment. " The claim for salary is undoubtedly a recurring right at the end of every month provided the main order of dismissal is as in the said case, declared to be a nullity by any court of competent jurisdiction. In the decision of (7) Jaichand Sawhaney v. Union of India, 1970 Indian Factories and Labour reports 173, it has been held that when the order of dismissal or removal is set aside by the Court on the ground of failure to afford constitutional protection, the order is declared invalid a in it, i.e., as if it in law never existed, and the public servant concerned was unlawfully prevented from rendering service. If that be the correct view, salary due to the public servant concerned must be deemed to have accrued month after month because he had been wrongfully prevented from rendering service. The period of limitation under Article 102 commences to run when the wages ''accrue due" and wages accrue due when in law the servant becomes entitled to wages''. In this case the plaintiff instituted a suit for a declaration that the impugned order of termination was in violation of the provisions of section 240 (3) of the Government of India Act. He also prayed for arrears of salaries for the back period. The High Court held that salary beyond three years from institution of the suit was barred by the law of limitation under Article 102. The Supreme Court in slight modification of the order added two months to the decree holding that under section 15 of the Limitation Act the plaintiff was entitled to the said period also which represented the statutory period of notice. In this decision the trial court's decree that the dismissal was contrary to the provisions of the act was not challenged. 11. In this decision the trial court's decree that the dismissal was contrary to the provisions of the act was not challenged. 11. IT would therefore appear that the decree for arrears of wages is always dependent on the main relief which is for a declaration that the order of termination was a nullity as has been rightly held by the judgment under appeal and that the suit for arrears of wages is not maintainable by itself unless the order terminating the service is set aside or held as void and a nullity. As the plaintiff because of the law of limitation even under Article 120 is not entitled to challenge the impugned order terminating his service, the impugned order being of May 4, 1948 and the suit being instituted on January 30, 1956 he is not entitled to a decree for arrears of wages. 12. MR. Sen Gupta further contends that the cause of action would be deemed to have commenced on September 27, 1954 when his representation to the Chief Minister was not replied to and is to be deemed to have been rejected. Under the law there is no provision for exclusion of the time for such representation and once the limitation has started to run it cannot be stopped from running against the plaintiff. As to the contention of the appellant that the wrong caused by the impugned order is a continuing wrong, it is to be noted that as already indicated the order became final and complete on the date it was passed. A continuing cause of action is one which involves a repetition of acts or omissions of the same type as that for which the action is brought. The impugned order of dismissal which once for all purports to terminate a service under Government is neither a repetition of acts nor of omission of the same type of action. For the identical reasons there is no infringement of recurring right by the impugned order so long as it is not declared void or a nullity. The impugned order of dismissal which once for all purports to terminate a service under Government is neither a repetition of acts nor of omission of the same type of action. For the identical reasons there is no infringement of recurring right by the impugned order so long as it is not declared void or a nullity. There is no question again of any refusal by the impugned order of any periodically recurring right as contemplated under Article 131 for the reasons already indicated, namely the order of dismissal for all time to come so long it is not set aside or declared void, terminated the service of the plaintiff and there is no further scope for refusal any periodic right of the plaintiff if any by the Government. As all the contention raised on behalf of the appellant fail this appeal fail and is dismissed. There will be no order for costs. Leave to appeal under Clause 15 of the Letters Patent as prayed for and is granted. Appeal dismissed.