Kalicharan Banerjee v. UNION OF INDIA — 1977 DIGILAW 266 (CAL)

JUDGMENT 1. THIS appeal at the instance of the plaintiff arises out of a suit for declaration that the order of termination of service of the plaintiff by the General Manager, Eastern railway is illegal and void and that the plaintiff is still in service under the defendant. The plaintiff was appointed as clerk by toe defendant in the scale of pay of Rs. 30-60 (subsequently changed to Rs. 55-130) on 1st May, 1942 and was placed under the Senior Superintendent. Way and Works, Howrah. It is alleged that the plaintiff was confirmed in the above post on 1st May, 1943. Thereafter it is stated that by letter dated 9/11th december, 1948 the plaintiff's service was wrongfully terminated by the General manager under the special power. It is stated that the cause of action of the suit arose on 11th December, 1948 when his service was wrongfully terminated and continued from day to day till 16th May, 1970. The defendant failed to reinstate the plaintiff in service. The written statement on behalf of the defendant is one of denial that the plaintiffs service was wrongfully terminated. On the other hand it was stated that the plaintiff's service was terminated under section 148 of the rules by the general condition of the service by the General Manager. The defendant prayed for dismissal of the suit Numbers of issues were raised of which issues Nos. 1 and 2 were of the frame of the suit and of limitation and issues Nos. 4 and 5 were whether the order of dismissal of service was illegal, inoperative or invalid. Issues Nos. 1 and 2 were held in favour of the plaintiff and issues Nos. 4 and 5 were held in favour of the defendant and the suit was dismissed. Issues Nos. 4 and 5 are in the following terms :- "4. Is the order of removal and/or dismissal and/or termination of the service of the plaintiff illegal, inoperative and invalid, as alleged ? 5. Was the order of dismissal passed in violation of the principles of natural justice ? " Being aggrieved by the said dismissal of the suit the plaintiff preferred the present appeal. At the hearing only the plaintiff examined himself. On behalf of the defendant it was stated that as the matter was a very old one, the record is not available with the defendant. 2. MR. " Being aggrieved by the said dismissal of the suit the plaintiff preferred the present appeal. At the hearing only the plaintiff examined himself. On behalf of the defendant it was stated that as the matter was a very old one, the record is not available with the defendant. 2. MR. Ghosh on behalf of the appellant contended that the appellant plaintiff was dismissed under section 148 (3)of the Railways Establishment Code, vol. I but in view of the Supreme court's decision reported in 1964 (II)L. L. J. 467 (Moti Ram Deka vs. The general Manager, the order of termination of service under section 148 (3) in respect of the permanent servant is unconstitutional and void. In so far as as the question of limitation is concerned, mr. Ghosh argued that in view of the supreme Court's decision reported in 1969 (II) L. L. J., 708 (North East frontier Railway vs. Sachindra Nath Sen)there is no period of limitation for filing a suit in respect of the dismissal or termination of service winch is unconstitutional. Mr. Roy Chowdhury on the other hand contended that the plaintiff failed to prove that he was a permanent servant and further in the facts of the case challenging the termination of the service is clearly barred having been filed about 30 years after the order was passed. To counter this plea, Mr. Ghosh contended that as the termination of service under section 22 of the limitation Act this is a continuing cause of action and therefore not barred. In our opinion, this plea is not at all maintainable. In our opinion the suit for declaration that the order of dismissal was wrongfully made must be brought under Art. 113 of 1963 Act, that is, within 3 years from the date of dismissal. In 1908 Act this was a residuary article under section 120 of the Limitation act, In our opinion this is not a recurring cause of action and the cause of action arose immediately after the dismissal. It has been held in the case reported in A. I. R. 1956 All., 114 (Jagdish vs. U. P. Govt.) that the suit for declaration that the order of dismissal was wrongfully made must be brought within 6 years from the date of the order. It has been held in the case reported in A. I. R. 1956 All., 114 (Jagdish vs. U. P. Govt.) that the suit for declaration that the order of dismissal was wrongfully made must be brought within 6 years from the date of the order. It was similarly held in A. I. R. 1966 Madhya Pradesh, 154 (Tilakram vs. State of M. P.) that the period of limitation for bringing a suit for declaration that the order of dismissal was wrong is 6 years from the date of the order. Mr. Ghosh however contended that in view of the supreme Court's decision reported in 1969 (II) L. L. J., 708 (Supra) there cannot be any period of limitation that the order of termination was unconstitutional. In our opinion the Supreme court has not said that there will be no period of limitation for such suit. On the other hand in a case coming under art. 226 of the Constitution of India, the Supreme Court considered the fixation of a time limit for reinstatement in the circular issued by the Authorities. The question of reinstatement is ultra vires because of Art. 14 of the constitution of India. 3. MR. Ghosh however contended that as the order of dismissal was unconstitutional and the plaintiff has not been reinstated, this is a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong as the case may be continued. The question of continuing wrong or continuing breach of contract was considered by the Supreme Court in a case reported in A. I. R. 1959 S. C., 798 (Balkrishna vs. D. M. Sansthan. The Supreme court held that it is the very essence of a continuing wrong that it is an act which creates a continuing source of injury arid renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. Applying this principle in the facts of the case, the wrong, which is committed according to the plaintiff, was one, the order of the termination. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. Applying this principle in the facts of the case, the wrong, which is committed according to the plaintiff, was one, the order of the termination. By issuance of the order, the plaintiff's service was terminated and assuming the order was wrong, what the petitioner at the present moment is suffering, is the effect of that completed act. It is not a continuing wrong as such or continuing breach of contract as such. 4. ON the merit, however, we agree with the learned Judge of the City civil Court. The plaintiff fails to prove that plaintiff was a confirmed Railway servant and as such the order was made not under rule 148 (3) but under rule 148 (1) of the Railway Establishment code, Vol. I. In the circumstances, therefore, there is no merit in this appeal. The appeal is, therefore, dismissed. There will be no order as to costs. Appeal dismissed.