Union of India (UOI) vs Basudeo Narain

This appeal by the defendant arises out of a suit for the following. reliefs.

(i) That it be declared that the order of the Plaintiff''s retirement from 11-3-1956 is illegal, void and without jurisdiction and not binding on the plaintiff and the plaintiff be entitled to serve in the said post from which he retired and enjoy the same privileges, advantages and emoluments attached to the said post.

(ii) That the post of the suit with interest pendentelite as well as future be given to him. Plaintiff''s case in brief was that he was appointed as a Record clerk in Engineering Department of the East Indian Railway Ltd. on the 1st of August, 1918. When he was aged 13 years 10 months and 21 days only. Later he was discharged due to reduction of establishment. He, was however re-appointed on the 10th of March, 1921 as a clerk in the Loco Department of the said Railway Company and on such re-appointment the minutes of the agent of the said Railway Company bearing No. 36 dated the 8th of September, 1921 was issued and necessary publication in the Gazette was made. That according to the usual practice then prevailing, the plaintiff signed a service sheet while the necessary columns therein were left blank to be filled up later by the staff of the office concerned. Ultimately, it transpired that the age of the plaintiff in the service sheet was wrongly entered as 20 years and this mistake continued in the service records even after the vesting of the Railway Administration in the Government in 1925. Sometime in 1954 the plaintiff, for the first time came to know about the aforesaid wrong entry, when he sent a number of representations and memorials to several authorities concerned with respect to the wrong entry of his age in the service sheet, but to no effect. The representation made by the plaintiff to the General Manager was rejected by the Deputy General Manager obviously relying upon the provisions of the Rules 144 of the Railway Establishment Code. According to the case of the plaintiff, he was governed by the rules regulating the conditions of the service of the staff framed by the East Indian Railway Company Lid. and the provisions of Rule 144 of the Railway Establishment Code were not applicable to him. On the above averments plaintiff claimed that his retirement with effect from the 11th of March, 1956 was illegal and he was entitled to continue in service notwithstanding the wrong, entry in service records till he attains the age of 55 years.

The Union of India contested the suit on several grounds including the ground that the suit was hit by Section 42 of the Specific Relief Act. This last mentioned ground has alone been pressed before us.

The trial court found that the entry in respect of plaintiff''s age in the service sheet was wrong and that the plaintiff was entitled to a declaration that his retirement from the 10th of March 1956, was illegal, void and without jurisdiction. The finding that the entry was wrong has not been challenged before us. It has, however, been strenuously urged that on the reliefs prayed for, this suit was hit by Section 42 of the Specific Relief Act, as on the facts and circumstances though the plaintiff was entitled to consequential relief, he had failed to make any such prayer and a suit for mere declaration should have been dismissed. The contention was sought to be supported on the view which had commended itself to the trial court that relief No. I as prayed really consisted of two Para, both the parts being for mere declaration. In the first part the plaintiff sought a declaration that his retirement from 10-3-1956, was illegal, void and without jurisdiction and in the second part the plaintiff claimed declaration that he was entitled to serve in his post from which he was retired and enjoy privileges, advantages and emoluments thereof. It may be mentioned that trial court has rejected the second part of the relief.

In this Court when this appeal came up for hearing on or about the 28th of July, 1967, an application for amendment of the plaint was filed on behalf of the plaintiffs respondent. The amendment prayed for was to the following effect:

(i) That the plaintiff is entitled to get from the defendant his entire remuneration from 10-3-1956 to the date of the suit, that is, 9-3-1959 with interest thereon which comes to Rs. 14.922.50P. which be decreed as per details of the same given at the foot thereon.

(ii) That the relief No. (ii) be numbered as relief No. (iii).

Though on account of Rs. 14.922.50P. was given at the foot of the application for amendment of the plaint, it is admitted that no prayer was made to incorporate the said account in the plaint itself. The amendment prayed for was allowed by the order dated 28th of July, 1967, and the plaintiff respondent Was directed to pay a sum of Rs. 110/- only by way of costs to the defendant appellant within a stipulated period and the order further proceeded to say that in case of plaintiff respondent''s failure to pay the aforesaid sum of Rs. 110/- within the stipulated period, his application for amendment of the plaint will stand rejected without further reference to a Bench. It appears that the cost so awarded was paid to the counsel appearing for the defendent appellant on the 4th of August, 1967, that is, a few days before the period stipulated under the order expired. Upon the aforesaid order dated 28-7-1967, it must now be held that the plaint stands amended and there, is consequential relief prayed for. As such, in the circumstances, it is manifest that the suit can not be said to be hit by Section 42 of the Specific Relief, Act.

On behalf of the appellant it was, however, contended that the amendment so allowed cannot be taken notice of until the Court allowed the defendant appellant to the file an additional written statement. We are of the opinion that there is no substance in this contention in view of the facts and circumstances of this case. As long back as 28th of July, 1967 the plaint was allowed to be amended as aforesaid in the presence of the defendant appellant and indeed the defendant appellant having accepted the cost allowed in respect of the said amendment is estopped from challenging the order allowing the amendment. It was no doubt open to the defendant appellant to file an additional written statement and if it was so advised, there was nothing to prevent the defendant appellant from filing an additional written statement within the course of a year and a half from the date when the amendment was allowed or from the date the cost in respect thereof was accepted by the its counsel. Now when the appeal has been taken up for hearing, we are of the opinion and defendant appellant it entitled to no indulgence. It must thank itself for not having filed additional written statement until today. In the circumstances, it must be presumed that the defendant appellant thought that there was no necessity for filing an additional written statement and the prayer made to day at the hearing is clearly by way of an after thought.

It was next contended on behalf of the defendant appellant that even after the amended in view of the fact that the trial court has rejected the second part of relief No. (1), the plaintiff was entitled to no relief. In our opinion, the contention is also without any substance. The fact that the second part of relief No. (i) namely, that the plaintiff was entitled to serve in the post from which he was made to retire has not been allowed to him for the reasons stated in the judgment (vide paragraph 22) is no impediment to the plaintiff''s suit for a declaration that his premature retirement was illegal and void and he was in the circumstances and as a necessary corollary of the first relief entitled to the second relief now claimed reason of the amendment that is, he is entitled to a sum of Rs. -14.000/- and old towards his salary and emoluments from the date on which he was made to retire, that is, from 10-3-1956 till the date of the institution of the suit, that is 9-3-1959. The claim of the plaintiff for his salary etc, which accrued due to him and was not paid because he had been prematurely returned cannot be denied particularly when it is confined for a period of three years before the institution of the suit and can not be said to be barred under law of limitation.

In the result, the plaintiff''s suit for the reliefs as they stand after amendment must be decreed and the judgment and decree passed by the trial court be modified to that extent. In view of the fact, however, that relief No. (ii) was brought in by the plaintiff-respondent at the appellate stage, it is necessary that his claim for a sum of Rs. 14.000/- and old should be first checked and verified by the trial court on such materials as might be on the record or as might be, if necessary, furnished by the parties. The decree, therefore, in regard to the actual sum to which the plaintiff-respondent was entitled to, will be prepared only after a report from the trial court is received after checking up and verification of the plaintiff''s claim.

In the circumstances of this case, we, however, direct that the parties shall bear own costs throughout.