# SAKAL DEEP SAHAI SRIVASTAVA v. UNION OF. INDIA & ANR

- **Citation:** [1974] 2 S.C.R. 485
- **Court:** Supreme Court of India
- **Decided:** 1973-11-27
- **Bench:** K. K. Mathew, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sakal-deep-sahai-srivastava-v-union-of-india-anr-6154
- **Pages:** 7

## Headnote

Lfmitation Act 1908 (9 of 1908) Art. toi-Arrears of salary of public servant
Govt. of India A.ct 1935.
The appellant, who was Assistant Office Superintendent; was promoted as Office
Superintendent but immediately thereafter was reverted after issuing a charge sheet
but without hold.in& an enquiry. He, however, continued to perform the duties of
Office Su~rintendcnt. A few months later charges against him were withdrawn with
the remark that "no stigma was attached to him". Thereupon the appellant applied
to be reinstated in the post of Office Superintendent and for payment of arrears of his
salary. But his reversion order was .upheld with the remark that his guilt was estab--
lished. The appellant retired in 1959 and filed a suit in 1962 claiming arrears of salary
and allowances and for a declaration that from the date of reversion to the date of
retirement he was a Railway employee on a salary ranging from Rs. 400 to 575
and for certain other benefits.
The trial court, while dismissing the suit in toto, had held (i) the.t the suit was
maintainable but denied any declaration to him and (ii) that the order of demotion
passed against him was illegal. The High Court decreed the suit and held that the
suit for arrears of salary, except to the extent of Rs. 180{- was barred by art. 102
of the Limitation Act, .1908. The H:igh Court further held that the action against the
appellafit being penal and violative of the constitutional protection afforded by s.
240(3) of the Government of India Act, 1935 was void and, therefore, could be ignored
as non est.
[489F·H]
On the question (i) whether art. 102 of the Limitation Act would apply to the
case and (ii) whether a declaration· was needed for enforcing a claim which fell within
time. Allowing the appeal in part.
HELD : (1) In Shri Madhav lAxman Yaikunthe v. The State of Mysore (1962)
1 SCR 886, which view was reiterated in two later decisions, it was held that art.
102 of the Limitation Act would apply to a case of this kind. Though_ a good deal
can be said in favour of the contention that a claim for arrears of salary is distinguish·
able from a claim for wages, the question is no longer open for consideration afresh.
It is not advisable to review the authorities of this Court aft~r, such a. lapse of time
when, despite the view taken by this Court that .article 102 of the Limitation Act,
1908 was appJicable tri cases of this kind, the Limitation Act of 1963 had been passed
repeating the law, contained in article 102 of the Limitation Act, 1908, in identical
terms without any modification. -The legislature must be presumed to be cognirant
of the view of this Court that a claim of th~ nature, as in the instant case,
falls
within the purview of article 102 of the Limitation Act, 1908. If Parliament, which is
deemed to be aware of the declarations of law by this Court, did not alter the Jaw
it must be deemed to have accepted the interpretation of this Court even though
the correctness of it may be open to doubt. It was for the legislatute to clear these
doubts. When the legislature has not done so despite the repeal of the Limitation
Act 1908 and the enactment of the Limitation Act, 1963 after the decision of this
Court ~t i.s inex~ent to re-exami_ne the correctness of the view adopted by this
Court m its dects1ons on the question. [~89·FH]
·
The Punjab Province v. Pandit T{lrachand [1947] F.C.R. 89, 93, 108, Jai Chand
Sawhney v • . U.nlo'! _of India [1969]{1/I) S.C.C. p. 642 and State of Andhra Pradesh
v .. Kutubudd1n, C1vd Appeal No. 2289of1966 decided on 8·10-69, referred to.
.
(2) 1:he High Court Was right in treating the order of reversion to be void and
mo~ttve o!. non ~st. The!ff.ore no declaration was needed for the purpose of
enforc:1n~ a claim which fell -.y1thm three years.- Consequently only the amount which
fell within 3 years of the suit could be decreed in accordance· with the statement of
the counsel for the respondent.
{490F]
486
SUPREME COURT REPORTS
[1974] 2 s.c.a.

## Text

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485
SAKAL DEEP SAHA! SRIVASTAVA
v.
UNION OF. INDIA & ANR.
November 27, 1973
[K. K. MATHEW AND M. H. BEG, JJ.]
Lfmitation Act 1908 (9 of 1908) Art. toi-Arrears of salary of public servant
Govt. of India A.ct 1935.
The appellant, who was Assistant Office Superintendent; was promoted as Office
Superintendent but immediately thereafter was reverted after issuing a charge sheet
but without hold.in& an enquiry. He, however, continued to perform the duties of
Office Su~rintendcnt. A few months later charges against him were withdrawn with
the remark that "no stigma was attached to him". Thereupon the appellant applied
to be reinstated in the post of Office Superintendent and for payment of arrears of his
salary. But his reversion order was .upheld with the remark that his guilt was estab--
lished. The appellant retired in 1959 and filed a suit in 1962 claiming arrears of salary
and allowances and for a declaration that from the date of reversion to the date of
retirement he was a Railway employee on a salary ranging from Rs. 400 to 575
and for certain other benefits.
The trial court, while dismissing the suit in toto, had held (i) the.t the suit was
maintainable but denied any declaration to him and (ii) that the order of demotion
passed against him was illegal. The High Court decreed the suit and held that the
suit for arrears of salary, except to the extent of Rs. 180{- was barred by art. 102
of the Limitation Act, .1908. The H:igh Court further held that the action against the
appellafit being penal and violative of the constitutional protection afforded by s.
240(3) of the Government of India Act, 1935 was void and, therefore, could be ignored
as non est.
[489F·H]
On the question (i) whether art. 102 of the Limitation Act would apply to the
case and (ii) whether a declaration· was needed for enforcing a claim which fell within
time. Allowing the appeal in part.
HELD : (1) In Shri Madhav lAxman Yaikunthe v. The State of Mysore (1962)
1 SCR 886, which view was reiterated in two later decisions, it was held that art.
102 of the Limitation Act would apply to a case of this kind. Though_ a good deal
can be said in favour of the contention that a claim for arrears of salary is distinguish·
able from a claim for wages, the question is no longer open for consideration afresh.
It is not advisable to review the authorities of this Court aft~r, such a. lapse of time
when, despite the view taken by this Court that .article 102 of the Limitation Act,
1908 was appJicable tri cases of this kind, the Limitation Act of 1963 had been passed
repeating the law, contained in article 102 of the Limitation Act, 1908, in identical
terms without any modification. -The legislature must be presumed to be cognirant
of the view of this Court that a claim of th~ nature, as in the instant case,
falls
within the purview of article 102 of the Limitation Act, 1908. If Parliament, which is
deemed to be aware of the declarations of law by this Court, did not alter the Jaw
it must be deemed to have accepted the interpretation of this Court even though
the correctness of it may be open to doubt. It was for the legislatute to clear these
doubts. When the legislature has not done so despite the repeal of the Limitation
Act 1908 and the enactment of the Limitation Act, 1963 after the decision of this
Court ~t i.s inex~ent to re-exami_ne the correctness of the view adopted by this
Court m its dects1ons on the question. [~89·FH]
·
The Punjab Province v. Pandit T{lrachand [1947] F.C.R. 89, 93, 108, Jai Chand
Sawhney v • . U.nlo'! _of India [1969]{1/I) S.C.C. p. 642 and State of Andhra Pradesh
v .. Kutubudd1n, C1vd Appeal No. 2289of1966 decided on 8·10-69, referred to.
.
(2) 1:he High Court Was right in treating the order of reversion to be void and
mo~ttve o!. non ~st. The!ff.ore no declaration was needed for the purpose of
enforc:1n~ a claim which fell -.y1thm three years.- Consequently only the amount which
fell within 3 years of the suit could be decreed in accordance· with the statement of
the counsel for the respondent.
{490F]
486
SUPREME COURT REPORTS
[1974] 2 s.c.a.
CIVIL APPELLATE JURISDICTION : Civil Appeal 1236of1970.
Appeal by Special Leave from the Judgment and Decree dated.the
6th November, 1968 of the Allahabad High Court in First Appeal
No. 361 of 1964. ·
Yogeshwar Prasad, S. K. Bagga and S. Bagga; for .the Appellant.
S. N. Prasad and S. P. Nayar, for the Respondent.
The Judgment of the Court was delivered by
BEG, J.-The plaintiff appellant's allegations, in the suit which
comes up by special leave before us, may be stated as follows :
The appellant was appointed a Clerk on 29-7-1925 at Gorakhpur
in the Accounts Department of what was then the Bengal North
Eastern Railway. In January, 1930, he was appointed Assistant
Office Superintendent. The Railway was taken over by the State and
renamed as Oudh Tirhut Railway (0. T. R.), and, subsequently, it
became the North Eastern Railway. In January, 1949, the appellant
was appointed officiating Assistant Secretary to the General. Manager
as a Class II Officer. On 11-5-1949, he was promoted to the pbst of
Office Superintendent. .Out, on that very date, he was served with a
charge-sheet by the Deputy General Manager and called upon to
explain, within, 3 days, the use of certain first clan passes issued to
him. On 14-5-1949, he submitted his explanation and justified the
use. of these passes by quoting specific rules and similar instances.
On 29-6-1949, the General Manager reverted the appellant from the
post of office :Superintendent to that of the Assistant Office Superintendent with effect from 1-7-1949 without holding any enquiry at all
as required by the Disciplinary and Appeal Rules of the Railway.
The appellant's case is that, despite his demotion, he continued to
perform the duties of the Office Superintendent presumably because
he was efficient. On 27-7-1949, the appellant filed an appeal to the
General Manager with the-result that, on 29-11-1950, the Deputy
General Manager had to withdraw the charges with the remarks:
"since the appellant had used the passes under a genuine and reasonable belief, :no stigma· was attached". Thereupon, the appellant
applied to the General Manager for formal reinstatement in the post
of Office Superintendent and payment of arrears of his salary.
Curiously, the General Manager, while awarding an honorarium of
Rs. 40/- per: month for the additional work of Office Superintendent
done by the.appellant, practically upheld the reversion order with the
remark thatthe appellant's guilt was established. Against this order
the appellant filed an appeal on 30-7-1952 to t!te Railway Board through
the General.Manager which was duly forwarded to the Railway Board
on 19-8-1952. On 30th October, 1954, the Railway Board sent a
letter to the General Manager stating that the question raised by
the appellant was not a- "live issue", and, ther.efore, there was no
reason to interfere with the General Manager's action. On 30-9-1959,
the appellant retired at the age of 57 despite his claim that he was entitled to continue up to the age of 60 years. The appellant alleged
that he received no intimation about the disposal of his appeal by
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SAKAL DEEP V. UNION (Btt, /.)
487'
the Railway Board despite the fact that he went on sending reminders
to the. Railway Board. On 15-12-1959, the Railway Board had asked
for clarification from him.
He had also been assured by the then
General and Deputy General Managers, in 1961, that his case would.
be decided to his satisfaction. Fut thermore, he alleged that he wrote to
the General Manager on 16-3-1962, and, again on 22-3-1962, to find
out the result of his appeal, but he received no answer.. Therefore, fin-·
ally he served a notice on 24-9-1962 under Section 80 Civil Procedure
Code upon the General Manager, North Eastern Railway, Gorakh-·
pur, and the Union oflndia. He claimed that Rs. 21,088 ·04 was due
to him as arrears of salary and allowances. He filed his suit on 2,7-11-62
for a declaration that from 1-7-1949, the date of illegal reversion,
up to 30-9-1959, the date of the appellant's retirement, he was a Railway employee on a salary ranging from Rs. 450/- to Rs. 575/- per
month, together with 20% special pay from 10-6-1956 to 30-9-1959
and rncreased gratuity, and, that, after ·his retirement, he b~came
entitled to the appropriate pension and
gratuity allowance. He
had also demanded payment of a sum of Rs. 19,795/- , the details
of which were given in a schedule, after relinquishing Rs. 1,293 ·04
and interest.
·
The defendants' version was : The plaintiff, who was an Assistant
Office Superintendent from 29-9-1948, was promoted to officiate as
Office Superintendeht with effect from 12-7-1948 in the scale of Rs ..
.360-500 with a clear stipulation that the promotion was subject to the
plaintiff's selection subsequently and would not give him any claim
to the post. Jt was admitted that the plaintiff was appointed to
officiate as Assistant Office Superintendent from 21·1-1949, but, !t
was alleged that, during the period of 18 days for which he held thrs.
post upto 7-2-1949, and, even after that, the plaintiff had illegally
utilised certain passes obtained under his signatures. A Selection
Board, which met on 12-2-1949, for selection to the post of Office
Supenntendent, did not find the plaintiff to be the most suitable candidate. Hence, the plaintiff .was reverted to the post of Assistant
Office Superintendent from 14-2-1949. The plaintiff was again promoted to officiate as Office Superintendent with effect from 11-5-1949,
_but he was again reverted to his substantive post with effect from
1-7-1949 as a result of the charge sheet against him. The Railway
administration had decided to appoint a second Selection Board after
cancelling the appointment of the first one. The second Selecti~n
Board, which met on 11-11-1949, placed the appellant only second rn
order of merit so that the appellant had to continue as Assistant Office·
Superintendent. Hence, no question of his promotion as Office
Superintendent arose. Furthermore, it was stated that the post of
the. Office Superintendent itself was held in abeyancdrom 1-7-1949,
but, another post of Assistant Office Superintendem y;as created m
its place.. It was, therefore, submitted that the plamhff could never
have held a post which was in abeyance. It was ~sserted that _the
plaintiff was given reasonable opportumty for showmg cause agamst
the action proposed to be taken against him before his reversron,
and that, after 1-7-1949, as a result of the representation made by the.
488
SUPREME COURT REPORTS
[1974] 2 S.C.R.
plaintiff, the General Manager gave the plaintiff a personal hearing
and also· appointed a Committee of three officers to examine the
whole case of the plaintiff, including alleged withdrawal of the
charge against him. The Committee reported to the General Manager that the remark made by the Deputy General Manager that
no stigma was attached to the plaintiff was not justified. Nevertheless, the Gen'eral Manager had directed payment of Rs. 40/- per monih
for the period from 1-7-1949 to 31-5-1951 for the extra work done by
the plaintiff in addition to his duties as Assistant Office Superintendent. The jurisdiction of the Court to question the reversion from a
merely officiating post was challenged. Furthermore, it was alleged
that the plaintiff had knowledge of the dismissal of his appeal as he
was working in the office of the General Manager as Assistant Office
Superintendent. The plea of limitation was also raised in defence.
The Trial Court, while dismissing the suit in toto had held that the
·suit was ma:ntainable. This finding was upheld by the High Court
on the plaintiff's ap!"'al which was allowed only to the extent that
Rs. 180/- was decreed as within time as the suit for the remaining
arrears of salary was held barred by Article 102 of Limitation Act of
1908. The Trial C0"rt had denied any declaration to the plaintiff,
but the High Court had decreed the suit for declaration in the follow-
. ing terms :
"The .suit, therefore, is also decreed for the declaration
that the plaintiff, on Ming superannuated, became entitled
to get, gratuity and pension, as admissible under the service rules applicable to the case, on the basis that he
retired as Office Superintendent in the grade of Rs. 360/-
500/-. It would, of course, now be open to the plaintiff to
move the Authorities concerned for gratuity and pension
in accordance with the declaratory decree passed by this
Court in his favour''.
As regards the enquiry subsequently held with regard to the plaintiff's grievapce, the Trial Court held that it could not take the place
of fullfledged
enquiry to which the appellant was entitled under
section 240 cl. 3 of the Govt. of India Act and the procedural safeguards in a: disciplinary action. It, therefore, held that the order of
demotion passed against the appellant on 29-6-1949 was illegal. The
High Court had, on the plaintiff's appeal, after considering the evidence, held :
"Thefefore, the. order of reversion, which had been passed
really as a penal measure, cannot be held to be valid.
The
inevitable consequence of this finding would be that plaintiff was and
remained legally
entitled to hold the
post of office Superintendent and as such to receive the
salary etc. payable for that post until he retired. In this
view of the matter, the relief for declaration, in the
circuhi.stances of the case, was redundant and not an'
essential pre-requisite to his claim for recovery of salary
etc. attached to that post, provided, of course, the claim was
not barTed undu article 102. of the Limitation Act''.
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SAKAL DEEP ii. UNION (Beg, /.)
489
The Trial Court had held that the order keeping the post of an
Office Superintendent in abeyance being administrative in nature
could not be questioned in a civil suit. But, the High Court held:
"The overall position, therefore, appears to be that the
order of abeyance was not in reality a bona fide administrative order pure and simple but it was a device to obviate
the difficulties which would otherwise have. been created
by the order of reversion, itself as, in the absence of an
order of punishment duly passed, the plaintiff would have
a right to revert to the poSL of the Office Superintendent.
In the instant case, from the evidence on record and the
relevant circumstances, it clearly appears that the alleged
order of abeyance of the post of the Office Superintendent
had resulted in definite prejudice and loss to the plaintiff.
In the circumstances of the case, in our opinion, the suit
was legally maintainable and the decision of the Court
below to the contrary is erroneous".
It, therefore, appears to us that the High Court had taken in view
that the action against the appellant, being penal and violative of the
constitutional .protection afforded by Section 240(3) Govt. of India
Act, was void, and, therefore, could be ignored as ···non est". Similarly, the order abolishing the post of Office Superintendent, having
been passed with an oblique motive, was not a bonafide order so that
it could be ignored. Even administrative action, to be valid, has
to be honest and bonafide. On these findings, the High Court appears
to us to have been justified in giving the declaration it did give:
The only question of some difficulty raised before us is whether
Article 102 or Article 120 of the Limitation Act of 1908 would apply to
the case. After having heard the attractive arguments of Mr. Yogeshwar Prasad, we have no doubt that a good deal can be said in fav'>ur
of the contention that a claim.for arrears of salary is distinguishable
from a claim for wages.
But, our difficulty is that the question appears to us to be no longer open for consideration afresh by us, or,
at any rate, it is not advisable to review the authorities of this Court,
after such a lapse of time when, despite the view taken by this Court
that Article 102 of the Limitation Act of 1908 was applicable to such
cases, the Limitation Act of 1963 had been passed repeati/\g the law,.
contained in Articles 102 and 120 of the Limitation Act of 1908,.
in rdentica! terms without any modification. The Legislature must
be presumed to be cognizant of the view of this Court that a claim
of the nature before us, for arrears of salary, falls within the purview
of Article 102 of the Limitation Act of 1908. If Parliament, which
is deemed to be aware of the declaration of Jaw by this Court, did
not alter the Jaw, it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be .open
to doubt. If doubts had arisen, it was for the Legislature to clear·
these doubts. When the Legislature has not done. so,
despite
the repeal of the Limitation Act of 1908, and the enactment of the
Limitation Act cf 1963 after the decisions of this Court, embodying
a possible questionable view, we think it is expedient and proper to.
490
SUPREME COURT REPORTS
[1974) 2 S.C.R,
over-rule the submission made on behalf of the appellant that the
correctness of the view adopted by this Court in its decisions on the
question so far should be re-examined by a larger Bench.
This Court, in Shri Madhav Laxman Vaikunthe V. The State of
Mysore (1), following tl)e case of the Punjab Province V. Pandit Tarachand (2), had held that! Article 102 Limitation Act of 1908 will apply
to such a case. It reiterated this view in Jai Chand Sawhney V.
Union of Jndia(3), and, again in State of Andhra Pradesh
V.
Kutubuddin(4).
Furthermore, the finding that the plaintiff had knowledge of the
disposal of his appeal by the Railway Board in 1954 is one of fact.
Even if this be a finding which is assailable, we do not consider it to
be baseless. We do not, therefore, propose to enter into evidence for
the purpose of determining the correctness of this finding for ourselves.
Jf this finding is correct, as we are assuming it to be, a suit filed on
27-11-1962 will be barred by time even if Article 120 of the Limitation
Act were to be applied. Six years' period of limitation would have
expired long before 1962, even if time were to begin to run, as is
submitted on behalf of the appellant, from the time the appellant
became aware of the decision of the Railway Board.
The appellant's contention, however, is that, even if suit was barred
by time, he would get three years more of arrears of salary as within
time if Article 120 (instead of Article 102) Limitation Act of 1908
was applied and each failure to pay the monthly salary due constituted a fresh cause of action. We cannot accept this view as we
have, for reasons already given, held that Art. 102 of the Limitation
Act, 1908, was correctly applied.
We think that the High Court was right in treating the order of
reversion passed against the petitioner to be void and inoperative,
or "non est",
The result was that no declaration was needed for the
purpose of enforcing a claim which fell within 3 years. Consequently,
·only the amount which fell within three years of the suit filed could
be decreed.
So far as the remaining part of the declaration is concerned the
amount claimable by reason of it would depend upon the rate at which
the plaintiff would haye been entitled to draw his salary if he had
occupied the post which he should have held when he retired. It has
to be, therefore, determined what would be the arrears of pension
and gratuity to which the plaintiff would have been entitled if he had
held the post of Office Superintendent to which he was entitled. We
have been informed by the learned Counsel for the North Eastern
Railway that as the appellant was entitled, on the finding of the High
Cotirt to hold the post of an Office Superintendent, he could draw
a salary in the scale fro!ll Rs. 450 to R,s. 575 with effect from 1-7-1959.
(1) (196211 S.C.R. p, 8S6 at 894.
(2) [1947] F.C.R. 89, 93; 108.
(3) (1969] (Ill) s.c.c. p, 642.
(4) Civil Appeal No. 2289 of .1966 decided on 8-10-1969.
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SAXAL DEEP v. UNION (Big, I.)
491
Before parting with the case we may observe that on the findings
of the High Court about the correctness of which we have no doubt,
the appellant was not treated justly. He was even denied promotion
due to an order which was not a bonalide one inasmuch as its object
was to deprive the appellant of the rights he would have otherwise
erljoyed. It is regrettable that a subordinate Govt. servant should
be treated in this manner by his superior officers. We hope that,
although the claim of the appellant has been found to be barred by
limitation, the Union of India will consider the equities of the case
and see its way to giving such relief to the appellant as we are precluded under the law from granting to him due to the operation of the
law of limitation.
The result is that we modify the decree passed by the High Court
to the extent that we hold that the amount which falls due to be paid
to the appellant within three years of the filing of the suit (i.e. within
the period of limitation) in accordance with the above mentioned
statement of the learned Counsel for the North Eastern Railway will
be calculated on the correct basis now stated to us by the learned
Counsel. To this extent we allow the appeal, but we dismiss the rest
of the appellant's claim. In the circumstances of the case, the parties will bear their own costs throughout.
P.B.R.
Appeal allowed in part.