# DILBAGH RAJ JARRY v. UNION OF INDIA AND OTHERS

- **Citation:** [1974] 2 S.C.R. 178
- **Court:** Supreme Court of India
- **Decided:** 1973-11-05
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dilbagh-raj-jarry-v-union-of-india-and-others-6126
- **Pages:** 10

## Headnote

178
DILBAGH RAJ JARRY
v.
UNION OF INDIA AND OTHERS
November 5, 1973
rH. R. KHANNA , V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]
Payment of WaRes Act, 1936-S. 15(2)-Limitation when commencesThe date 011 which deduction from wages was made or tile date on whiah the pay.
ment of wages was due to be made.
Running allo1vance wlrether part of wages.
The appellant, a Railway Guard, was convicted and sentenced for an offence
under s. 509, l.P.C.
The Higll Court upheld his convktion. On appeal this
Court set aside the conviction and acquitted him. In the meanwhile the app:l·
Jan~ was dismissed from service with effect from 31st March, 1956. Th~ appellant impugned the order of dismissal in the High Court which held that his dis·
missal was wholly void and ineffective. Thereupon the appellant was reinstated
and was informed that the matter of his back wages for the period between
the date of his dismissal and the date of reinstatenu:nt would be decided later.
By another letter he was informed that this period was treated as lea,·e due.
He was paid Rs. 81.51 as his wages for the entire period ending on March 7,
1959.
The nppellant made an application under s. 1S(2) of lhe Payment of Wages
Act, 1936 claiming Rs. 9,016.60 plus ten times the said amount as compensation.
In addition, he first claimed 'travelling allowance' but later sought to amend the
applic~tion hv replacing 'travelling- allowance' by 'mnning allowance'. This
was rejected by the Prescribed Authority. The Authority allowed a part of the
claim but the appellant preferred an appeal to the Appellate Authority under
the Act. The Appellate Authority held that the claim was barred by time as
limitation had commenced from the date of dismissal' from service and not from
the date of reir.starement or the date on which it was decided to treat the period
of dismissal as leave due.
On the question ( i) whether the claim application filed by the appellant
under s. 15(21 wns time-barred and (ii) whether he was entitled to running
allowance.
Allowing the appeal,
HELD: (i) the first oroYiso to sub-ss. (2) of~. 15 indicates two lllternative
st~rting roiuts for limbtion, nnmely, (i) the date on which deduction from
wages w;•<> ffi3de o~ (ii) the dnte on which the p~yment of the wages was due
to be made.
[183-A]
A
B
c
D
E
F
E·ora a reading of s. 15 it is clear that the legislature bas deliberately used,
first, in mb-s. (2) 3nd then in sub-s. (3 ). the expressions "d~duction of wages"
G
and ''dd:\y in payment of w:~ges~ as two distinct concepts.
Terminus a quo (il
in the proviso expr~ssly rel:ltes to the d~duction of wages, while (ii) is referable to the cklayed wage8. !f both these terrninii were always relatable to the
.~arne point of time, then there would be no point in mentioning terminus a quo
(i) and the !egisl~ture could have simp1y s:~id that limitation for a clr.im under
s. 15(21 wo11ld always start from the date on which the wages "fall due" or
"accn.te" as has be~n done under Artid!' 102 cf the Limitation Act which
applies onlv to suits for recovery of war,e~. The very fact that two distinct
startin[! roir.'~ of limitntion referable to two distinct concepts have been stated
H
in the rrovi~o. ~haws !h~t the lc.clsl~ture had visualised that the date of deduc·
tion of wl!gl's
~ rul the dne date of delayed wages. may not always coincide.
Conjunction "or'' which in the context means "either" and the phrase "as the
ll
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E
F
H
D. R. JAitRY v. U1'JO;o~ (Sarkaria, J.)
179
cas' nMY be" at the end of the orovi50 ure clinching indicia of Ibis interpretation. 1 ncy are not mere >Urp~njle$ ~nd must be gtven their full effect. The
l~gislaturc IS not supposeJ tu JO<l\ugc 111 tautology; and when it uses enalogous
words or phmscs .'" the altcr~atne. e51ch may be presumed to con,·ey a ,cpardiC
and distinct meanm~. the choice of e1ther of which may involve tbc rejection of
the olher. To hotc.J
!~at tbc two expre,.ions "wages deducted'' and -~-Jges
dcl~y~d" though used m the alttrnauvc. carry the sam

## Text

178
DILBAGH RAJ JARRY
v.
UNION OF INDIA AND OTHERS
November 5, 1973
rH. R. KHANNA , V. R. KRISHNA IYER AND R. S. SARKARIA, JJ.]
Payment of WaRes Act, 1936-S. 15(2)-Limitation when commencesThe date 011 which deduction from wages was made or tile date on whiah the pay.
ment of wages was due to be made.
Running allo1vance wlrether part of wages.
The appellant, a Railway Guard, was convicted and sentenced for an offence
under s. 509, l.P.C.
The Higll Court upheld his convktion. On appeal this
Court set aside the conviction and acquitted him. In the meanwhile the app:l·
Jan~ was dismissed from service with effect from 31st March, 1956. Th~ appellant impugned the order of dismissal in the High Court which held that his dis·
missal was wholly void and ineffective. Thereupon the appellant was reinstated
and was informed that the matter of his back wages for the period between
the date of his dismissal and the date of reinstatenu:nt would be decided later.
By another letter he was informed that this period was treated as lea,·e due.
He was paid Rs. 81.51 as his wages for the entire period ending on March 7,
1959.
The nppellant made an application under s. 1S(2) of lhe Payment of Wages
Act, 1936 claiming Rs. 9,016.60 plus ten times the said amount as compensation.
In addition, he first claimed 'travelling allowance' but later sought to amend the
applic~tion hv replacing 'travelling- allowance' by 'mnning allowance'. This
was rejected by the Prescribed Authority. The Authority allowed a part of the
claim but the appellant preferred an appeal to the Appellate Authority under
the Act. The Appellate Authority held that the claim was barred by time as
limitation had commenced from the date of dismissal' from service and not from
the date of reir.starement or the date on which it was decided to treat the period
of dismissal as leave due.
On the question ( i) whether the claim application filed by the appellant
under s. 15(21 wns time-barred and (ii) whether he was entitled to running
allowance.
Allowing the appeal,
HELD: (i) the first oroYiso to sub-ss. (2) of~. 15 indicates two lllternative
st~rting roiuts for limbtion, nnmely, (i) the date on which deduction from
wages w;•<> ffi3de o~ (ii) the dnte on which the p~yment of the wages was due
to be made.
[183-A]
A
B
c
D
E
F
E·ora a reading of s. 15 it is clear that the legislature bas deliberately used,
first, in mb-s. (2) 3nd then in sub-s. (3 ). the expressions "d~duction of wages"
G
and ''dd:\y in payment of w:~ges~ as two distinct concepts.
Terminus a quo (il
in the proviso expr~ssly rel:ltes to the d~duction of wages, while (ii) is referable to the cklayed wage8. !f both these terrninii were always relatable to the
.~arne point of time, then there would be no point in mentioning terminus a quo
(i) and the !egisl~ture could have simp1y s:~id that limitation for a clr.im under
s. 15(21 wo11ld always start from the date on which the wages "fall due" or
"accn.te" as has be~n done under Artid!' 102 cf the Limitation Act which
applies onlv to suits for recovery of war,e~. The very fact that two distinct
startin[! roir.'~ of limitntion referable to two distinct concepts have been stated
H
in the rrovi~o. ~haws !h~t the lc.clsl~ture had visualised that the date of deduc·
tion of wl!gl's
~ rul the dne date of delayed wages. may not always coincide.
Conjunction "or'' which in the context means "either" and the phrase "as the
ll
c
D
E
F
H
D. R. JAitRY v. U1'JO;o~ (Sarkaria, J.)
179
cas' nMY be" at the end of the orovi50 ure clinching indicia of Ibis interpretation. 1 ncy are not mere >Urp~njle$ ~nd must be gtven their full effect. The
l~gislaturc IS not supposeJ tu JO<l\ugc 111 tautology; and when it uses enalogous
words or phmscs .'" the altcr~atne. e51ch may be presumed to con,·ey a ,cpardiC
and distinct meanm~. the choice of e1ther of which may involve tbc rejection of
the olher. To hotc.J
!~at tbc two expre,.ions "wages deducted'' and -~-Jges
dcl~y~d" though used m the alttrnauvc. carry the same meaning, and in the
prov1so are _utways_ rcfcmb1e to one and the same point of time, would be
contrary to this pnmary canon of intcrpretntJOn. [1838-E]
Ordinarily where an employee was dismissed on one <l•te and r<instateJ on
another. the deduction of wages may synchronise with tbc :.ct of reinstatement.
Jn the instant case the d,educllon dill not take place o• the d~tc of reimtntcment
b<c:ar;e the order of .rems!:lt<m,r.t e.•prcssly st.:•tcd that decision with regurd to
his wages for the pcnod would b: ta~en later. Therefore the deduction would
coincide with the <l~cbion deduc:•ng the wa;:;es.
Such a decision was taken on
February, 18. 1959 :•nd limitalton under the first part of the proviso commenced
from that d;nc.
(1830-H]
Jai Chand Sawbney v. Ullion of india [1963] 3 S.C.R. 642; Di>·irional Superin·
renJ,·nt, Nonbern Railway \', f'us:tkur Dull Slwrma Tl96i] 14, F .L.R. 204; held
ionpplicablc.
(ii) Running allownn:e was counted toward< a'ora0e pay in those Cllscs only
where th~ kavc diu not exoc.cu one mo nth.
Tra·.cll: n~ allowance or running
allowance was eligibk if the otliccr h~d tr:>\'dku or run, not otherwise. It
could not 1-e ~uid that runn;nc: ullo"ance w:lS ou< to the appellant as part of
h<> wage• for the cnlir~ period of his ina.:tive scrvic.:.
[18SH; IS6A]
Prr Kri,hr-J. Trot J. (Concurring)
Jn this ccuntry the Stat<: is the largest
lilil!.1nt roday ood the huge cxp:nditu r~ in,ohcd makos a bi~ draft on the pub-
!ic exchequer.
In the conlc.,t of e~panomg dim.:osions of ~tate oclivit)' and
r,'>pon>ibility, it is not unfair to expect finer s.<n.'c anti scll!libility in its lillgation
policy, the ab,cnce of which in the pro$ent case h'ld kd the Railways callously
and conr:•nkerouslv to rc·Jst un netion bv it• owa employee. a small mon. by
ursing a mere 1.:chnlc:1! pka. whi..:h had 1>:..-.::n pursued richt up tQ the highest
court and had been n~p ti'<dIt was nor right h>r a wclf~re State like ours
to be J:mus-facc<l anJ wh:tc formuiJting the humJoi't project of legal oid to
the poor contc~t the claims of Nor employees llndcr it pleading limitation
knd the like.
(186C·EI
CIVIL AI'PHLAT!l JURISDICTION: Civil Appeal No. 1898 of 1967.
Appeal by Special Leave from lll¢ Jud~cnt and. Ord_.:~ dnt~d the
4th November, 1965 of the AUahabad High Court 111 Ctvil Mtsccllancous Petition r\o, 2491 of 1965.
flisha11 ,Varaill and D. N. Mislrra, for th<! nppdlant.
S. N. Prasad and S. P. Nayar, for r~sponJcnts Nos. 1 & 2.
The Jud,<?m..:nt of the C·•urt were ddiv,•n:d by0
~-\RKAnt.\ J.- This appeal by special k~vc is directed a?ainst the
; 1dcr dated Novcmh.:r 4, 1965, of the H1gh Court of Jud1cature at
. ~~hahad di~missing the appellant's \\Tit petition under Article 226
'
111
227 of th;: Constitution in limim•.
w 'nlc appdlant wa3 a Guard 'C' Grade in Northern Railway. I-Ic
to~k co~firm~d in .that post in 1952. On April 3, 1955,. ;m incid.:nt
Pro~ Pluce at Ratlwny Station Kalka as a result of wbJch, h.: was
ecuted for an ofTcncc und~r s. 509. Penal Code. The AdJitional
. 180
SUPREME COURT REPOf •. .:
( 1974] 2 S.C.R.
District Magistrate, Ambala convicted an.• ~l!nt~nc~J him on December 29, 1955 to three months simple imprisonmer.t.
His appeal was
dismissed by the Court of Session.
In Revision, the High Court of
Punjab, on March 5, 1956. maintained his conviction but reduced
the sentence.
On April 2, 1956, the appellant received a communication from
the Divisional Personnel Officer, Northern Railway that he had been
dismissed by the Divisional Superintendent from service w.e.f. March
31, 1956.
In Appeal by special leave, this Court. set aside the conviction
of the appellant and acquitted him by its judgment dated March 7,
1957.
Thereafter, the ~ppellant filed a writ pt:tidun in the High Court
of Punjab under Article 226 of the Co~titution ia,pugning the order
of his dismissal.
The High Court by its judgmt:nt, dated September
2, 1958, issued the writ dire.cting the respondents to treat the dismissal of the appellant wholly void and ineffective.
Pursuant to that
direction, on December 26, 1958 the appellant received a letter from
the Divisional Personnel Officer that he had been reinstated to the post
of Guard 'C Grade and that the matter of his back wages for the
period between the date of his dismissal and the· date of .reinstatement
would be decided later on. By another letter of February 13, 1959,
the same officer informed the appellant th.at the period from the date
of his dismissal to the date of his reinstatement would be treated as
leave due.
The appellant, on March 11, 1959, was paid Rs. 81.51
as his entire wages for the period ending March 7, 1959.
On August 13, 1959, the appellant made an application under
s. 15(2) of the Payment of Wages Act (Act -4 of 1936)
(hereinafter rcfcn·ed to as_the Act) before the prescribed authority claiming
a sum of Rs. 901.S.60 plus 10 times of the said amount as compensation from
th~ respondents. In addition, Travelling Allowance was
claimed.
Later. an attempt was made to amend the application and
replace 'Travelling Allowance' by 'Running Allowance'. The Authority did not permit the appellant to do so as· he had failed to amend
in time despite the order ()f the Court.
The respondents resisted the appe1Iant's claim on various grounds
including that of limitation. By an order dated August 7, 1963, the
Authority directed respondent No. 1 (Union of India), in its capacity
as employer, to refund the sum of Rs. 4863.20, (plus Rs. 100/· as
costs) to the appellant holding that the same had been illegally deduct·
ed from his wages.
The Authority disallowed the· remaining claim
including that of the Running Allowance. Against the order of the
Authority, two appeals were carried to the Appellate Authority (Addit:onol District Judge)-one by the appellant and the other by the
rcspoudcnts.
The Appellate Authority held that the appellant's claim
w~h barred by time as limitation had commenced from the date of dism;•spl from service and not from the date of reinstatement or the date
on \':hich it was decided to treat the period of dismissal as leave due.
It upheld the dismissal of the appellant's claim to the Running Allowance, inter alia for the reason that he had. despite the order of the
B
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D
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II
D. R. JARRY Y. UNION (Sarkaria, /.)
181
Authority, failed to amend the petition within the period indicated in
0.6 R.l8 of the Code of Civil Procedure. The Appellate Authority
further found that the Railway Administration was competent to treat
the period of appellant's inactive service from April I, 1956 to February 17, 1959, as leave due and to deduct his wages for that period
in accordance with rule 2044 of the Railway Establishment Code; and
in view of s. 7(2) (h) of the Act, no refund of the deducted_ wages
could be allowed. It further held that in the case of Railway Administration, the Divisional Superintendent named as Pay Master was res·
ponsible for the payment of wages of the Railway employees, and
consequently, the direction of the Authority requiring the Union of
India to make payment to the claimant was illegal. In the result, the
Appellate Authority allowed the
respondent's appeal and dismissed
the nppcllant's claim.
The appellant's writ petition impugning this
order of the Appellate Authority was, as already stated, dismissed by
the High Court. Hence this appeal.
The first question that falls to be considered is, whether the claim
application filed by the appellant under s. 15(2) of the Act was timebarred?
Mr. Bishan Narain, learned CQunsel for the appellant contends
that the case falls under the first part of the proviso (1) to s. 15(2)
which relates to deduction of wages and limitation would start from
March 11. 1959 when the wages for the period of the appellant's inactive service were actually deducted and he was paid Rs. 81.51 only
for the entire period ending March 7, 1959. Even on a stricter view,
according to the learned Counsel, limitation would not start earlier
than the date, February 13, 1959, when constructive deduction took
place and it was decided to treat the period of his inactive service as
leave duo (which meant lt:ave without pay). Since the appellant's
claim application had been presented within six months of either of
these dates, it was well within time. ·
Learned Counsel for the respondents docs not dispute that this is a
case of deduction of wages. His argument, however, is that irres·
pcctive of whether the case was one of deduction or of non·p.J),-nent
of wages, the starting point of limitation would be the same viz., the
dato on which the wages fell due or aceru<!d.
Tho argument is that
the concepts of 'deducted wanes' and 'dday~d wages' are so integrated
with each other that the eve;t~ relatable to them always synchronise
furni~hing tho same caus.: of action and the same start of limitation.
lt is Pointed out that the wages of a Railway employee fall due every
~lonth; wages or one month being payable by the lOth of the succec~
~ng lllonth. Since the dismissal of the appellant was declared votd
·lnd 11011-e.rt by the Punjnb High Court-it is urged-his right to claim
J.agc_s continued to accrue every month even during the period of his
f tsm,ssa~ .
In the view propounded by the learned Counsel, limitntion
tt mak1n!! the application under s. 15(2) started from January 3, 1956,
te <late of the dismissnl nod the application made by the appellant
182
SUPREME COURT REPORTS
[ 1974] 2 S.C.R.
more than three years thereafter, was clearly time-barred.
Reference
has been made to this Court's decision in lai Chand Sawhney v. Union
of lndia(l).
·
We shall presently see tllat while the contentions of the learned
Counsel for the respondents cannot, those canvassed by the_ learned
Counsel for the appellant must prevail.
The material part of s. 15 of the Act reads :
"15(1)
15 ( 2) Where contrary to the provisions of this Act any
deduction has been made from the wages of an employed
person, or any payment of wages has been delayed, such
person himself, or any legal practitiot~er or any official of a
registered trade union authorised in writing to act on his behalf, or any ~nspector under this Act, or any other person
acting with the permission of the authority appointed under
sub-section (1) rp.ay· apply to such authority for a direction
under sub-section (3) :
Provided that every such application shall be presented
within (twelve months) from the date on which the deduction
from the wages was made or from the date on which the pay·
ment of the wages was due to be made, as the case may
be:
Provided further that any application may be admitted
after the said period of twelve months when the applicant
satisfies the authority that he had sufficient cause for not
making the application within such period.
. 15(3) When any application under sub-section (2) is en·
tertained, the authority shall hear the applicant
and
the
employer or other person responsible for the payment of wages
under section 3, or give them an opportunity of being heard,
and, after such further inquiry (if any) as may be necessary,
may, without prejudice to any other penalty to which such
employer or other person is liable under this Act, direct the
refund to .1he employed person of the amount deducted. or
the payment of the delayed wages, together with the payment
of such compensation as the authority may think fit, not exceeding ten times the amount deducted in the former case· ar.d
not exceeding twenty-five rupees in the latter, and even if
the amount deducted or the delayed wages are paid before
the disposal of the application, direct the payment of such
compensation, as the authority· may think nt, not exceeding
twenty-five rupees : ...... "
The question of limitation turns on an interpretation of the first
proviso to sub-s. (2) of s. 15.
This proviso ex facie indicates two
1. [1969] 3 s.c.c. 642.
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B
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D.~ R. JARRY v. UNION (Sarkaria, J.)·
183
alternative terminii.a quo for limitation, namely : (i) the date on which
deduction from wages was made, or, (ii) the date on which the payment of the wages was due to be made.
From a reading of s. 15, it is clear that the legislature has deliberately used, first, in sub-s. (2), and then in sub-s. ( 3) the expressions ''deduction of wages" and "delay in payment of wages" as two
distinct concepts. Terminus a quo (i) in the proviso expressly relates
to the deduction of wages, while (ii) is referable to the delayed wages.
If both these terminii were always relatable to the same point of time,
then there would be no point in mentioning terminus a quo (i), and
the Legislature could have simply said that limitation for a claim
under s. 15(2) would always- start from the date on which the wages
"fall due" or "accrue" as has been done under Art. 102 of the Limitation Act which applies only to suits for recovery of wag<!s.
The
very fact that two distinct starting points of limitation referable to
two distinct concepts, have been stated in the proviso, shows that
the LegislatUre had visualised that the date of deduction of wages and
the due date of delayed wages, ·may not always coincide.
Conjunction "or", which in the context means "either", and the phrase ''as
the case may be" at the end of the Proviso are clinching indicia of
this interpretation. T)ley are not mere surplusages and must be given
their full effect.
The U(gislature 'is not supposed to indulge in tautology; and when it uses analogous words or phrases in the alternative,
each may be presumed to convey a separate and distinct meaning, the
choice of either of which may involve the rejection of the other. To
hold that the two expressions "wages deducted" and ''wages delayed'',
though used in the alternative, carry tlie same meaning, and in the
Proviso are always referable to one and the sam~ point of time, would
be contrary to this primary canon of interpretation .
"Deduction from wages" has not been defined in the Act. Some
illustrations of such deductions are, however, to be found in ss. 7 and
13.
One of them in s, 7 (2) (b) is "deductions for absence from duty"
which indicates that such deduction can be a t•otal deduction also_ That
is to say "deduction from wages" may be the same thing as "deduction
of wages".
The deduction in the instant case is akin to this category
covering the entire deficiency for the period of absence, the only difference being that here, the appellant's absence from duty was involuntary.
Such absence in official parlance is euphemistically ~alkd "inactive service', if the employee is later on reinstated.
The point to be considered further is, when did such deduction of
wages take place ? Ordinarily in a case like the present where the
employee was dismissed on one date and reinstated on a later date,
the deduction of wages may synchronise with the act of reinstatement.
But on the peculiar and admitted facts of this case, the deduction did
not take place on the date of reinstatement ( 26-12-195 8) because the
order of reinstatement expressly stated that "decision with regard to
his wages to be paid for that period will be taken later on". In the
case in hand, therefore, the "deduction" will coincide with the decision
impliedly or expressly deducting the wages.
Such a decision·was taken
-
184
SUPREME COURT REPORTS
[ 1974 ] 2 S.C.Il.
and put j,n the cpurse of a communication to the appellant on February 18, -.1959 whereby he was informed that the period from 3+1956
to 17·3-1959, would be treated as 'leave due' which, it is conceded,
meant leave without pay. Thus, deduction from his wages for the
entire period of his 'inactive service' took place on February 18, 1959.
and limitation under the first part of ~e Proviso commenced from
that date. The application was made on August 13, 1959, within
six months of that dat~ and was thus within time.
In /ai Chand Sawhney's case (supra), the interpretation of the first
Proviso to s. 15(2) never came up for consideration. Therein, the
Court was concerned only with the construction of the expression
"accruejdue" in Art. 102 of the Limitation Act, 1908 which. does oot
govern applications under s. 1~(2) of the Act. That case,
therefor~!,
is of no assistance in determining the precise issue before us.
It may be obseryed in passing that the rule in Sheo Prasad v. Addi·
tional District Judge,(l) relied on by the Additional District Judge,
was not followed by the same High Court in Ram Kishore Sharma v.
Additional District lf.ldge, Sahar~pur( 2), as is had ceased to be good
law in view ..9f the decision of this Court in Divisional Superintendent,
Northern Railway v. Pushkar Dutt Sharma( 8) • .
In Pushkar Dutt's case (supra), the application under s. 15 (2) of
the Act was filed within six months of the date on which the dismissal
-of the employee was set aside by the COurt in second appeal. The
employee's application would have been within time irrespective of
whether his case was treated as one of "wages deducted" or "wages
delayed". Therefore, the necessity of examining the comparative mean·
ing and distinction between "deduction from wages" or "delay in
payment of wages due" and the two alternative starting points of limi·
tation relatable to these expressions, did not arise in that case.
A
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In the light of the above discussion, we reverse the finding of
the Additional District Judge and hold that the application filed by
the appellant under s. 15(2) of the Act having been made within six
F
months of the date of deduction from his wages, was within time.
The second ground on which the Order of the Additional District
Judge prQceeds, is that since the deduction of the wages for the period
of his inactive service from April 1, 1956 to February 17, 1959, had
been made under 'the ord~r of a competent authority passed in accord·
ance with rule 2044 of the Railway Establishment Code, in view of
G
s. 7(2)(h) of the Act no order could be made for the refund of the
deducted amount.
Both the learned Counsel before us are agreed that
in view of the pronouncement of this Court in Devendra Pratap Narain
Raj Sharma v. State of U.P.(~), this ground is not sustainable. In
Sharma's case (supra), this Court was construing rule 54 of the U.P.
Government Fundamental Rules, the language of which is substantially
the same as that of rule 2044 of the Railway Establishment Code. It
H
(!) A.I.R. 1962 AU. 144.
(2) [!969] All Law Journal p. 225.
(3) (1967] 14, F.L.R. 204.
(4) [1962] Supp. S.C.R. 315.
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was held therein, that r. 54 enables the State Government to fix the
pay of a public servant when his dismissal is set aside in departmental
appeal.
But that rule has no application to· cases in which dismissal
is declared invalid by ~ decree of civil court and he is, in consequence,
reinstated.
Mr. Bishan Narain next contends that the prescribed Authority hati
wrongly disallowed the claim of the appe~lant to "Runn~?~ All?watw_e"
which he had mis-described as "Travelhng Allowance , m h1s claun
application. The point pressed into argum_ent is, . th~t once the Aut~o
rity had allowed the appellant to amend his apphcat10n for convertmg
the claim of "Travelling Allowance" into "Running Allowance'', it had
no discretion left thereafter to prevent him from carrying out the amend·
ment, on the technical ground that the ~eriod indicated by Order 6,
Rule 18, Code of Civil Procedure, for this purpose, has expired. The
Code of Civil Procedure, it is urged, does not govern amendment of
applications under s. 15(2) of the Act.
The contention is .untenable. While it is true that Rules 17 and
18. of Order 6 of the Code do not, in terms, apply to amendment of
an application under s. 15(2), the Authority is competent.to devise,
consistently with the provisions of the Act and the Rules made thereunder, .its ewn procedure based on general principles of justice, equity
and good conscience. One of such principles is that delay defeats
equity. The Authority found that the applicant was guilty of gross
negligence. He took no steps whatever to carry out the amendment !or
several months after the order permitting the amendment, and there·
after, when the case was at the final stage, he suddenly woke up, as
it were, from slumber, and sought to amend his application. In the
ciicumstances, the Authority rightly refused to put a premium on this
delay and laxity on the part of the appellant. In the view we take on
the claim to running allowance we need not pronounce finally on whether an amendment to the relief once granted requires to be formally
carried out in the petition, as in a pleading in court, less rigidity being
permissible in quasi-judieial proceedings.
Mr. Bishan Narain further contends that Running Allowance wns
a Part of the pay or substantive wages.
In support of this argument
he has invited our attention to rule 2003 of the Railway Establishment
Code, clause 2 of which defines 'average pay'. According to the
second proviso to this clause in the case of staff entitled to running
allowance, average pay for the purpose of leave salary-shall include
the average running allowance earned during the 12 months immediately preceding the month in which a Railway servant .proceeds on
lea~e subject to a maximu_m of 75 per cent of average pay for the said
penod, the average runnmg allowance once determined remaining in
operation during the. remaining part of the financial year in cases of leave
not exceeding one month. The crucial words, which have been underline?'. sho\v that such Running Allowance is counted towards 'average
pay m those cases only where the leave does not exceed one month.
It cannot, therefore, be said that Running Allowance was due to the
appellant as part of his wages for the entire period of his inactive ser-
186
SUPREME COURT REPORTS
[ 1974] 2 s.c.R..
vice.
Travelling allowance or running allowance is eligible if the officer has travelled or run. not otherwise.
We therefore ne~ati\·c this
contention.
For the foregoing reasons, we allow this appeal, set aside the order
of the Appellate Authority and restore that of the Prescribed Authority.
The appellant shall have his costs throughout.
KRISHNA lYER, J.-The judgment just del,ivered has my full concurrence but I feel impelled to make a few observations not on the
merits but on govermental disposition to litigation, the present case
being symptomatic of a serious deficiency.
In this country th~ State
is the largest litigant to-Jay and the huge expenditure involved makes a
big draft on the public exchequer. ln the cont~t of expanding dimensions of State activity and responsibility, is it unfair to expect finer
sense and sensibility in its litiga!lcn policy, the 1bscnce of which, in
the present case, he led the Railway callously and cantankerously to
resist an action by its own employee, a small man, by urging a mere
technical plea which has been pursued right up to the summit court here
and has been negatived in the judgment just pronounced? lmtances
of this type are legion as is evidenced by the fact that then Law Com.
mission of India in a recent report ( 1) on amendments to the Civil
Procedure Code has su£gested the deletion of s. 80, finding that wholesome provision hardly ever utilised by Government, and has gone further to provide a special procedure for government litigation to highlight the need for an activist policy of just settlement of claims wher~~
the State is a party.
It is not right for a welfare State like ours to be
Janus-faced, and while formulating the humanist proj~ct of legal aid
to the poor. contest the claims of poor employees under it pleading
limitation and the like.
That the tendency is chronic flows from certain
observations I had made in the Kcrala High Court decision(2) which I
may usefully excerpt here -
"The State, under our Constitution, undertakes economic
activities in a vast and widening public sector and inevitably
gets involved in disputes with private individuals. , But it
must be remembered that the State is no ordinary party trying to win a ca:::e against one of its own citizens by hook or by
crook; for, the St~te's interest is to meet honest claims, vindicate a substantial defence and never to score a technical
point or overreach a weaker party to avoid a just liability
or secure an unfair advantage, simply because legal devices
provide such an opportunity. The State is a virtuous Iiti·
gant and looks with unconcern on immoral forensic successes
so that if on the merits the case is weak, government shows a
willingness to settle the dispute regardless of prestige and
other lesser motivations which move private parties to fight
(I) Law Commi~sion of India, 54th Report-Civil Procedure Code.
(2) P.P. Abu backer v. The Union of India : A.I.R. 1972 Ker. 103 : 107:
para 5.
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in court.
The lay-out on litigation costs and executive time
by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved
that 1 positive and wholesome policy of cutting back on the
volume of law suits by the twin methods of not being tempted
into forensic show-downs where a reasonable adjustment is
feasible and ever offering to extinguish a pending proceeding
on just terms, giving the legal mentors of government some
initiative and authority in this behalf. I am not indulging in
any judicial homily but only echoing the dynamic national
policy on State--litigation evolved at a Conference of Law Ministers of India way back in 1957. This second appeal strikes
me as an instance of disregard of that policy."
187
All these words from the Bench, hopefully addressed to a responsive Government, may, if seasonable reactions follow, go a long
way to avoidance of governmental litigiousness and affirmance of the
image of the State as deeply concerned only in Justice-Social Justice.
The phyrric victory of the poor appellant in this case is a sad justification
for the above observations.
P.B.R.
Appeal allowed.