State Of U. P. v. Madan Mohan Khanna — 1976 DIGILAW 603 (ALL)

JUDGMENT G. C. Mathur, K.C. Agrawal, JJ. 1. THIS is an appeal by the State Government against the judgment of a learned Single Judge, allowing the writ petition filed by the respondent and directing the Government to pay a sum of Rs. 35,854.25 P. as arrears of salary to the respondent. 2. THE respondent was a Head Clerk in the Sale Tax Office at Saharanpur A charge-sheet was served on him and he was placed under suspension on January 27, 1953. After the inquiry, he was dismissed from service by order dated July 8, 1954. He then filed a civil suit, challenging the order of dismissal. The suit was decreed on April 20, 1959. An appeal by the State Government against the decree was also dismissed. The Government then filed a second appeal in this Court but this too was dismissed on March 13, 1970. In the meantime, on September 1, 1967, the respondent retired on reaching the age of superannuation. After the dismissal of the second appeal, the respondent asked for his salary from the date of suspension (27-1-1953) upto the date of superannuation (1-9-1967). The Commissioner of Sales Tax admitted the claim and issued necessary directions for the payment after deducting the subsistence allowance already paid to the respondent. The necessary pay bills were prepared and sent to the Treasury Officer for payment. It appears that the Treasury Officer raised an objection that the salary bills required to be pre-audited by the Accountant General as the claims had been made after one year of becoming due. Some correspondence ensued but the Treasury Officer did not yield. Thereupon the bills were forwarded to the Accountant General for pre- audit. At this stage, the Commissioner of Sales Tax reviewed his original order and took a stand that the claim for arrears of salary was time-barred. This decision was conveyed to the respondent by a letter dated May 12, 1972. The respondent made several representations but nothing came out of them and, ultimately towards the end of November, 1972, the respondent was finally told that the arrears of salary could not be paid as they had become time-barred. In July, 1973, the respondent filed a writ petition in this Court for a direction to the Government to pay Rs. 35,854 25P as arrears of salary for the period 27-1-1953 to 1-9-1967. In July, 1973, the respondent filed a writ petition in this Court for a direction to the Government to pay Rs. 35,854 25P as arrears of salary for the period 27-1-1953 to 1-9-1967. He also prayed for a direction to the Government to pay the arrears of pension and to continue to pay the same. The learned Single Judge, who heard the writ petition allowed the same and directed the Government to pay a sum of Rs. 35, 854. 25 P. to the respondent as arrears of his salary and also to pay his pension. Against the judgment of the learned Single Judge, this special appeal has been filed by the State Government. 3. SRI S. C. Budhwar, learned Standing Counsel, has pressed the appeal on the following four grounds :-. 1.That the respondent was guilty of laches in filing the writ petition and that the writ petition ought to have been dismissed on this ground; 2.That the writ petition was barred by the principle of res-judicata as the suit filed by the respondent for the recovery of the arrears of salary had been dismissed by the civil court as withdrawn; 3.that the claim for arrears of salary, which had become time-barred on the date on which the writ petition was filed, could not be enforced in a writ petition; and 4.that the writ petition was not maintainable as the obligation to pay the arrears of salary arose out of contract and not out of any statutory provision. 4. SO far as the question of laches is concerned, it is contended by the learned Standing Counsel that the right to recover the arrears of salary arose every month when the salary became due and the writ petition, having been filed several years later, deserved to be dismissed on the ground of laches. It is to be noticed that, though the respondent's suit had been decreed in 1959, the Government was agitating the matter in appeal and second appeal till 1970. Thereafter the respondent's claim was accepted by the Government and payment orders were actually issued. Therefore, all the period before this date need not be taken into account in considering the question of laches. It is only when afterwards the Government refused to pay the amount due on the ground of limitation that the respondent filed the writ petition. Thereafter the respondent's claim was accepted by the Government and payment orders were actually issued. Therefore, all the period before this date need not be taken into account in considering the question of laches. It is only when afterwards the Government refused to pay the amount due on the ground of limitation that the respondent filed the writ petition. Though there was some delay, after the refusal, in filing the writ petition, we do not consider this a fit case for dismissing the writ petition on the ground of laches when the learned Single Judge did not exercise his discretion on this question against the respondent. The second ground urged by the learned Standing Counsel in support of the appeal is also untenable. It is admitted that the respondent had filed a suit for recovery of arrears of salary and when faced with the plea of limitation, he withdrew the suit. The suit was dismissed as withdrawn. Undoubtedly, a fresh suit in respect of the same subject matter was barred by the provisions of sub-rule (3) of Rule 1 of Order 23 of the Code of Civil Procedure. But this provision only applies to a fresh suit and not to a writ petition. Technical rules of the Civil Procedure Code like Order 2 Rule 2 or Order 23 Rule 1(3) bar only subsequent suits and not writ petitions. The principles embodied in these rules cannot be extended to writ petitions. Further, since no adjudication on merits was made in the suit, the dismissal of that suit cannot bar the writ petition on the general principles of res-judicata. The technical principles of Section 11 of the Code of Civil Procedure apply only to suits, but the general principles of res-judicata, apart from Section 11 of the Code of Civil Procedure, apply only when there has been a previous adjudication on the question sought to be shut out in the subsequent proceedings. In our opinion, the learned Standing Counsel is not right in contending that the writ petition was barred on the general principles of res-judicata on account of the dismissal of the suit as withdrawn. 5. THE third contention of the learned Standing Counsel must, in our opinion, prevail. In our opinion, the learned Standing Counsel is not right in contending that the writ petition was barred on the general principles of res-judicata on account of the dismissal of the suit as withdrawn. 5. THE third contention of the learned Standing Counsel must, in our opinion, prevail. In view of the decisions of the Supreme Court in Madhav Laxaman Vaikunthe v. State of Mysore, AIR 1962 SC 8 , Jai Chand Sawhney v. Union of India, 1969 (3) SCC 642 and Sakal Deo Sahai Srivastava v. Union of India, AIR 1974 SC 338 the remedy of the respondent to recover the arrears of his salary by way of a suit must be held to have been barred by limitation. The learned Single Judge was in error in holding that the cause of action for filing the suit for recovery of arrears of salary arose on March 13, 1970, when the second appeal was dismissed by this Court. In view of the decisions of the Supreme Court the cause of action arose whenever the payment of the salary became due, that is to say at the end of each month. The last salary became due to the respondent on September 1, 1967. The period of limitation prescribed for such suit is three years and it is obvious that on September 1, 1970, the suit in respect of even the last month's arrears of pay became time-barred. No doubt the Limitation Act as such does not apply to the reliefs claimed in a writ petition. The question is when a suit to seek the identical relief has become time-barred, can the relief be granted in a writ petition ? It is now settled that where a civil. right is sought to be enforced in a petition under Article 226 of the Constitution, then it would be a sound exercise of discretion by the High Court to enforce that civil right subject to the limitations and restrictions, which are imposed upon it by the ordinary law. It is now settled that where a civil. right is sought to be enforced in a petition under Article 226 of the Constitution, then it would be a sound exercise of discretion by the High Court to enforce that civil right subject to the limitations and restrictions, which are imposed upon it by the ordinary law. In M/s. Burmah Construction Company v. The State of Orissa, AIR 1962 SC 1320 the Supreme Court observed as follows :- "The High Court normally does not entertain a petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Art. 226 of the Constitution against the State or against an officer of the State to enforce a statutory obligation. The petition in the present case is for enforcement of the liability of the Collector imposed by Statute to refund a tax illegally collected and it was maintainable; but it can only be allowed subject to the restrictions which have been imposed by the Legislature. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable." In State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006 the question again arose before the Supreme Court whether a refund of sales-tax, which had been illegally collected should be directed to be refunded, where it was opposed on the ground that the claim had become barred by limitation. The Supreme Court observed :- "It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. The Supreme Court observed :- "It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the Statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution." In State of Kerala v. Aluminium Industries Ltd., 1965 STC 689 the question arose regarding refund of sales-tax paid under a mistake of law. The Supreme Court observed :- "In such a case where tax is levied by mistake of law it is ordinarily the duty of the State subject to any provision in the law relating to sales tax (and no such provision has been brought to our notice) to refund the tax. If refund is not made, remedy through court is open subject to the same restrictions and also to the period of limitation (see Article 96 of the Limitation Act, 1908), namely, three years from the date when the mistake becomes known to the person who has made the payment by mistake (see State of Madhya Pradesh v. Bhailal) In this view of the matter it was the duty of the State to investigate the facts when the mistake was brought to its notice and to make a refund if mistake was proved and the claim was made within the period of limitation." 6. A Division Bench of this Court has, in Sp. A. No. 362 of 1974, Nagar Mahapalika Kanpur v. M/s. Sri Ram Mahadeo Prasad, decided on March 12, 1976 applied these principles to the refund of octroi duty paid under a mistake of law. A Division Bench of this Court has, in Sp. A. No. 362 of 1974, Nagar Mahapalika Kanpur v. M/s. Sri Ram Mahadeo Prasad, decided on March 12, 1976 applied these principles to the refund of octroi duty paid under a mistake of law. There appears no reason why the principle enunciated by these decisions of the Supreme Court should not be applied to other civil rights which are sought to be enforced in petitions under Article 226 of the Constitution. Strong reliance was placed by the learned Counsel for the respondent on the decision of a Division Bench of this Court in Ratan Narain Mulla v. State of U. P., CMW No. 8379 of 1974 decided on October 21, 1975. In this case Mulla was dismissed from service by the Governor by an order dated December 10, 1960. He challenged the dismissal order by filing a writ petition in this Court. After a long chequered history Mulla succeeded in getting the order of dismissal quashed in Special Appeal, which was allowed on May 24, 1973. On that very day he sent a memorial to Government claiming arrears of salary up to August 28, 1969, the date on which he reached the age of superannuation. He made a further prayer that his pension may be determined and paid to him. By a Government order dated July 25, 1974, Mulla was informed that he would not be paid his arrears of salary as it had become time-barred. Mulla thereupon filed another writ petition praying for a mandamus directing the State Government to pay his arrears of salary and pension. By this time Fundamental Rule 54-A had been introduced, which requires the Government, after a dismissal order is set aside by a court, to pay the Government servant the salary due to him for the entire period. Though the Division Bench held that a suit for recovery of 1 the arrears of salary had become time-barred, it was of opinion that the statuory liability cast upon the Government by Fundamental Rule 54-A could be enforced in the writ petition, as no period of limitation was prescribed for enforcing this liability. Though the Division Bench held that a suit for recovery of 1 the arrears of salary had become time-barred, it was of opinion that the statuory liability cast upon the Government by Fundamental Rule 54-A could be enforced in the writ petition, as no period of limitation was prescribed for enforcing this liability. The objection that Fundamental Rule 54-A came into force on October 31, after this Court had set aside the order of dismissal, was rejected by the Division Bench on the ground that the rule had come into force at the time when the Government passed its final orders refusing to pay the arrears of salary. In our opinion, this decision does not help the respondent. The view which the Division Bench appears to have taken is that even though the remedy of recovering arrears of salary by way of a suit had become time-barred, the remedy claimed in the writ petition was based on a different cause of action, namely, the statutory liability of the Government under Fundamental Rule 54-A. In the present case the respondent cannot invoke the aid of Fundamental Rule 54-A. The refusal by the Government to pay his arrears of salary was long before Fundamental Rule 54-A came into existence. Even the writ petition was filed before this Rule became applicable. Therefore, the cause of action, on which the writ petition was based, was identical with the cause of action on which the suit filed by the respondent in the Civil Court was based. 7. RELIANCE was also placed by the learned Counsel for the respondent on the decision of Dhawan, J. in Hari Raj Singh v. Sanchalalak Panchayat Raj, AIR 1968 All. 246 . This was also a case of a Government servant dismissed from service, whose dismissal order was set aside by a court. Even though the learned Judge noticed the decision of the Supreme Court in Devendra Pratap Narain Rai Sharma v. State of U. P., AIR 1962 SC 1334 holding that Fundamental Rule 54 was not applicable to cases where dismissal orders were set, aside by courts, he held that the petitioner in that case had a statutory right to get his pay and, consequentially, to the arrears of pay. We have examined the Fundamental Rules relating to pay of Government servants, but the Rules, apart from Fundamental Rules 54 and 54-A, are only concerned with the determination of pay. Only Fundamental Rules 54 and 54-A can be said to contain directions to Government to pay the salary of Government servants in particular sets of circumstances. Neither of these two Rules were applicable to the case of the respondent. The learned Single Judge was also of opinion that the law of limitation in respect of suits for arrears of salary has no relevance in writ petitions. But in view of the decisions of the Supreme Court, to which we have made reference, this view does not appear to be quite correct. 8. THE learned Counsel for the respondent sought to place reliance upon the decision of the Supreme Court in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh (supra) for contending that mandamus can be issued by the High Court commanding the State to pay arrears of salary, which have become irrecoverable by way of a suit on account of limitation. We do not think that this decision of the Supreme Court supports the contention. In this case the order of dismissal was challenged by the appellant by way of a suit, which was ultimately decreed by this Court. Thereafter the Government determined the pay admissible to the appellant for the period of suspension and the pay admissible to him from the date of dismissal till the date of reinstatement. It is this order fixing his pay which was challenged by the appellant and was found by the Supreme Court to be illegal. The direction of this Court to the Government to re-consider the matter and to re-determine the pay of the appellant was upheld by the Supreme Court. Even though the appellant had claimed a mandamus directing the State Government to pay a specified amount as arrears of salary, that relief was not granted. The matter may be viewed from another angle. Suppose the suit filed by the respondent for recovery of the arrears of salary had been dismissed by the Civil Court as time-barred. Would this Court have still entertained a writ petition for a mandamus directing the Government to pay the arrears of salary ? Surely not. The matter may be viewed from another angle. Suppose the suit filed by the respondent for recovery of the arrears of salary had been dismissed by the Civil Court as time-barred. Would this Court have still entertained a writ petition for a mandamus directing the Government to pay the arrears of salary ? Surely not. What then is the difference if the suit was filed and withdrawn, when the respondent was faced with the plea of limitation, or even if the suit had not been filed as it was time-barred. In our opinion, there can be no difference in principle in these three classes of cases. If the relief has become time-barred in the civil suit, it would be a sound exercise of discretion by this court not to i issue a mandamus directing the payment of the time barred claim. In Dr. Jananendra Nath Das v. State of Orissa, AIR " 1964 SC 241 the Orissa High. Court in identical circumstances observed:- "Thus, though the petitioner's claim for arrears of salary is legally tenable, it is barred by limitation and this Court, in its discretion under Article 226, cannot grant relief which is otherwise barred." In these circumstances, we have come to the conclusion that the learned Single Judge was not justified in allowing the writ petition and in issuing a mandamus to the appellant to pay arrears of salary to the respondent. We may again emphasise that the cause of action for the suit and the writ petition was the same. 9. IT now remains to consider the last ground urged by the learned Standing Counsel. We have earlier extracted the observations of the Supreme Court in M/s. Burmah Construction Company v. State of Orissa (supra) where it has said that the High Courts do not normally entertain a writ petition under Article 226 of the Constitution to enforce a civil liability arising out of a breach of contract. We need refer only to one more decision of the Supreme Court in Kulchinder Singh v. Hardayal Singh Barar, 1976 SLJ 423. In this case a writ petition was filed before the Punjab High Court praying for the setting aside of a selection list prepared by a cooperative society. The High Court dismissed the writ petition on the ground that a writ could not be directed against a co-operative society. In this case a writ petition was filed before the Punjab High Court praying for the setting aside of a selection list prepared by a cooperative society. The High Court dismissed the writ petition on the ground that a writ could not be directed against a co-operative society. Before the Supreme Court it was urged that this particular co-operative society fell within the definition of 'State'. The Supreme Court did not go into this question, but dismissed the writ petition on the ground that it sought the enforcement of a contractual obligation. IT observed :- "At its best, the writ petition seeks enforcement of a binding contract, but the neat and necessary repellenat is that the remedy of Article 226 is unavailable to enforce a contract qua contract. We fail to see how a supplier of chalk to a Government school or cheese to a Government hospital can ask for a constitutional remedy under Article 226 in the event of a breach of contract, by passing the normal channels of civil litigation." The question then arises whether the liability of the Government to pay the salary of the respondent or the arrears of salary is a contractual liability or a statutory liability. We have already discussed above that the liability is not statutory. The liability arises out of the contract of service and is a purely contractual liability. In the State of Bihar v. Abdul Majid, AIR 1954 SC 245 the Supreme Court was considering whether a Government servant could maintain a civil suit for arrears of salary. Regarding the nature of such a claim the Supreme Court observed : "The present claim is not based on tort but is based on quantum meruit or contract and the Court is entitled to give relief to him." The writ petition filed by the respondent was, therefore, for the enforcement of a contractual liability and was not maintainable. 10. BEFORE parting with this case, we would like to observe that it does not befit the Government to raise technical pleas to defeat the legitimate and just claims of its employees. Even though we are dismissing the writ petition filed by the respondent, we hope that the Government will give this matter further consideration. 10. BEFORE parting with this case, we would like to observe that it does not befit the Government to raise technical pleas to defeat the legitimate and just claims of its employees. Even though we are dismissing the writ petition filed by the respondent, we hope that the Government will give this matter further consideration. In the result, the appeal is allowed, the judgment of the learned Single Judge is set aside and the writ petition filed by the respondent in so far as it relates to the recovery of the arrears of salary is dismissed. The Government is, however, directed to determine the pension payable to the respondent and to pay the same. Parties will bear their own costs of this appeal as well as of the writ petition. Appeal allowed.