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1974 DIGILAW 421 (ALL)

Radhey Shyam Misra v. Divisional Personnel Officer N. E. Rly. , Lucknow

1974-10-07

J.M.LAL

body1974
JUDGMENT J.M. Lal, J. - This judgment will govern Civil Revision Nos. 92 and 94 both of 1973 which have been filed by Radhey Shyam Misra against Divisional Personnel Officer. N. E. Rly., Lucknow and others. 2. The brief facts of the case were that the revisionist who was a clerk in the office of the Divisional Engineer, N. E. Railway, Lucknow was dismissed by the Divisional Engineer under his order dated 16-10-1960. He filed a suit in the Civil Cour in the year 1962 challenging the validity of that dismissal order. The suit was dismissed by the rial Court. But the appeal filed by the revisionist against that judgment had decree was allowed by the lower appellate court on 3-8-1964 when the dismissal order was quashed as being void. Against that decision the railway administration filed a second appeal in this Court which was dismissed on 22-5-1969. 3. On 29-5-1969 the revisionist filed an application under Section 15 of the Payment of Wages Act before the Prescribed Authority claiming his salary and other allowances for the period from 18-10-1960 to 30-4-1969. Though part of the claim was time barred, the Prescribed Authority condoned the delay and treated the entire claim as within limitation. The claim of the revisionist was partly allowed and partly dismissed by the Prescribed Authority. Against the direction given by the Prescribed Authority both the parties filed appeals before the District Judge under Section 17 of the Payment of Wages Act. Those appeals were numbered as Misc. Appeal No. 69 of 1972 and Misc. Appeal No. 75 of 1972. Both those appeals were disposed of by the learned Additional District Judge, Lucknow under his judgment dated 19-2-73. On the appeal filed by the railway administration, which was appeal No. 69 of 1972 the learned District Judge was of the opinion that the application was barred by limitation and the Prescribed Authority was not justified in condoning the delay under Section 5 of the Limitation Act. He did not go into other questions raised on behalf of the railway administration in that appeal, nor did he decide the appeal of the revisionist (Appeal No. 75 of 1972) on merits against that part of the direction given by the Prescribed Authority in which part of his claim had been disallowed. He did not go into other questions raised on behalf of the railway administration in that appeal, nor did he decide the appeal of the revisionist (Appeal No. 75 of 1972) on merits against that part of the direction given by the Prescribed Authority in which part of his claim had been disallowed. He allowed Appeal No. 69 of 1972 on the ground of limitation and set aside the direction given by the Prescribed Authority that a sum of Rs. 14138.00 shall be paid by the railway administration to the revisionist. Feeling aggrieved by that decision the revisionist has filed these two revisions in this Court. 4. I heard the learned counsel for the parties. 5. The Prescribed Authority had condoned the delay on the ground that it would be inequitable to dismiss the claim of the revisionist on the ground of limitation. The learned Addl. District Judge held that it was not a judicial ground on which limitation could be extended under Section 5. This part of the finding recorded by the lower appellate court which is more or less a finding of fact has not been questioned before me in this revision. The learned counsel for the revisionist, however, contended that the entire claim of the revisionist for wages from 18-10-1960 to 30-4-1969 was within one years rule of limitation prescribed by Section 15 of the Payment of Wages Act upto the date on which his application under that section was presented before the Prescribed Authority on 29-5-69. It is argued that though the order of his dismissal was held to be void and illegal by the appellate court on 3-8-1964 and thereafter he could claim his past as well as future wages, the petitioner awaited the result of the second appeal which had in the meantime been filed by the railway administration. That second appeal was dismissed on 22-5-1969 and that decision finally decided the question that tho dismissal of the revisionist was void. From that date his application for claiming wages for the entire period was well within time. 6. Learned counsel relied on a Full Bench decision of Madras High Court in Muthu Korakki v. Mohd. Madar, (AIR 1920 Mad 1) (FB); a Division Bench decision of this Court in R. K. Sharma v. Addl. From that date his application for claiming wages for the entire period was well within time. 6. Learned counsel relied on a Full Bench decision of Madras High Court in Muthu Korakki v. Mohd. Madar, (AIR 1920 Mad 1) (FB); a Division Bench decision of this Court in R. K. Sharma v. Addl. District Judge, (1969 All LJ 225) : (1970 Lab IC 582); a Supreme Court decision in Divisional Superintendent v. Pushkar Dutt, (1965 All WR 274) (SC) and two decisions of Calcutta High Court in Dwijendra Narain v. Joges Chandra, (AIR 1924 Cal 600) and Jateendra Chandra v. Rebateemohan Das, (AIR 1935 Cal 333). He also referred to a Privy Council decision in Baijnath Sahai v. Ramgut Singh, ((1896) ILR 23 Cal 775) (PC) and a single Judge decision of this Court, in Hari Raj v. Sanchalak Panchayat Raj Lucknow, ( AIR 1968 All 246 ) : (1968 Lab IC 900). 7. Learned counsel for the opposite parties besides relying on R. K. Sharma v. Addl. District Judge, Saharanpur, (1970 Lab IC 582) (All) (supra) and Divisional Superintendent v. Pushkar Dutt, (1965 All WR 274) (SC) (supra) also referred to another decision of the Supreme Court in Sita Ram Goe v. Municipal Board, Kanpur, ( AIR 1958 SC 1036 ). 8. From a perusal of these decisions the principle that can be drawn is that ordinarily limitation runs from the earliest time from which an action can be brought by a plaintiff and if thereafter the plaintiff waits for the result of some other proceeding started by the other party, he does so at his risk. If the result of those proceedings goes against the persons who had started those proceedings and the original transaction or the order which gave the plaintiff a cause of action to seek his remedy within the prescribed period is maintained, those subsequent proceedings, unless the case is covered by Section 14 or any other provision of law, will not extend the time which would ordinarily start running from the earliest date from which cause of action accrued to him. If, however, the result of those proceedings goes against the plaintiff and thereafter he has to seek further proceedings which terminate in his favour so as to give him a fresh cause of action for filing the suit, it is the subsequent date which gives him the cause of action and the limitation would run from that date. 9. In Divisional Superintendent v. Pushkar Dutt, ((1965) All WR 274) (SC) (supra) which was a case of the present nature, the order of dismissal of the plaintiff passed by the railway administration, was challenged by him through a suit which was decreed by the trial Court in 1951. From that date he did not file his application under Section 15 (2) of the Payment of Wages Act within the prescribed limitation but chose to wait for the result of the appeal filed by the other party. That appeal was allowed on 14-8-1952 and the suit was dismissed. Naturally after that the plaintiff had no cause of action to claim his Wages. He then filed a second appeal in the High Court which was allowed on 9-1-1962. This gave a fresh cause of action to the plaintiff and within six months from that date (which was the period of limitation prescribed by Section 15 at that time) presented his application to the Prescribed Authority even though at that time also a special appeal against the decision or the Single Judge of the High Court as pending in that very court which was dis missed in 1964. This time the plaintiff did not take the risk of waiting for the decision of the Special Appeal. His application was held to be within limitation by the Supreme Court, because on these facts it was held that a cause of action arose to the plaintiff on 9-1-1962. 10. The learned counsel for the revisionist contended that if the limitation in this case did not run from the year 1951 when the suit of that plaintiff was originally decreed by the trial court, but it began to run on 9-1-1962 when bis suit was finally decreed by High Court, the same principle should be extended to a converse case where the appeal filed by the other party against a decision which is in favour of the plaintiff is dismissed. In my opinion, there is a vast difference between the two cases, so far as the question of limitation is concerned. In a case where the plaintiff has come out successful under a decree passed by any court and that decree remains the operative decree after the dismissal of the appeal filed against it by the other party, the limitation begins to run from the date the decree was passed in favour of the plaintiff, and no fresh cause of action arises to him on the dismissal of the appeal of the other party filed against that decree. If, however, the appeal of the other party is allowed, the very cause of action of the plaintiff is, for the time being, removed and thereafter if the plaintiff succeeds on a further appeal being filed by him against that decree, that gives him a fresh cause of action. It was held by the Supreme Court in S. R. Goel v. Municipal Board, Kanpur, ( AIR 1958 SC 1036 ) (supra) that even if the analogy of a decree passed by the court is applied to a departmental appeal filed by a dismissed Municipal employee it did not help the plaintiff to save his suit from the bar of limitation because in the appeal the order of dismissal was confirmed and in such cases the principle applicable to decrees was that the decree of the trial court remained operative. In this connection the Supreme Court referred to an earlier decision of that court in State of Uttar Pradesh v. Mohammad Nooh, ( AIR 1958 SC 86 ) in which it was held that while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree or for computing the period of limitation for an application for final decree in a mortgage suit. But whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. But whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or Tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective. 11. From these pronouncements of the Supreme Court it is abundantly clear that in the present case the cause of action arose to the plaintiff on 3-8-1964 in respect of the wages for the period from 18-10-1960 to that date and thereafter it accrued to him from month to month. The application under Section 15 being presented on 29-5-1969 the claim for the period upto 30-4-1968 was beyond time. But the claim for wages from 1-5-1968 to 30-4-1969 was still within time. The learned District Judge thus erred in considering that the entire claim of the revisionist was time barred. 12. Both the revisions are, therefore, partly allowed. The order passed by the lower appellate court is modified to this extent that the revisionists claim for wages from 1-5-1968 to 30-4-1969 was within limitation. Since the District Judge has not decided the two appeals filed by the parties on merits, both these appeals are remanded to that court with the direction to dispose them of on merits insofar as they relate to the claim of the revisionist for wages, for the period from 1-5-1968 to 30-4-1969. 13. The revisionist's counsel further requests that his plea that a fresh cause of action arose to him for claiming subsistence allowance for the period from 18-10-1960 to 30-4-1968 under another order passed by the opposite parties during the pendency of the application made by him under Section 15 of the Payment of Wages Act, should also be left open for decision by the appellate court. On that matter no decision has been given by him and it will be open to the lower appellate court to consider that point for whatever it is worth. 14. On that matter no decision has been given by him and it will be open to the lower appellate court to consider that point for whatever it is worth. 14. In the circumstances of the case the parties shall bear their own costs.