Civil Appeal No 131 of 1988
From the Judgment and order dated 1331986 of the High Court of Karnataka in CRP No 1821 of 1984
AS Nambiar RC Kaushik and AK Sharma for the Appelant
SS Khanduja and YP Dhingra for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
Leave granted
The limited question falling for our deterrnination in this appeal by special leave is whether a suit for damages already instituted against a counsel has abated or not consequent on the death of the plaintiff
G We may now scan the facts
Pursuant to the High Court of Karnataka confirming an order of eviction passed against him in respect of his business premises a tenant by name Mr Sequeira wanted to prefer an appeal to the Supreme Court
For that purpose he met the appellant who is an advocate practising in the Supreme Court H 610 on 146197 1 at Mangalore during the latter s visit to that place and engaged him to file the appeal
The special leave petition came up for hearing on 22111971 and was dismissed as withdrawn
Mr Sequeira then filed a suit OS No 255 of 1972 in the Court of the District Munsif Mangalore against the appellant for damages and compensation
He alleged in the plaint that the appellant had been negligent in rendering professional services and had misconducted himself by filing the appeal after considerable delay and giving misleading information about the filing of the appeal and furthermore in withdrawing the appeal instead of canvassing for its admission
He further alleged that as a consequence of the appeal being dismissed he came to be evicted from his business premises and thereby he had incurred loss of income as he had been unable to secure an alternate place for running his business besides suffering mental agony worry and loss of reputation
The plaintiff therefore claimed that the appellant was liable to compensate him in a sum of Rs20000 towards the loss sustained by him but he was however content to restrict the amount to Rs4500
In addition he claimed a sum of Rs 1500 under three heads of Rs500 each viz I refund of Rs500 paid towards court fee and miscellaneous expenses 2 reimbursement of Rs500 expended for engaging another advocate to obtain a certified copy of the order of the Supreme Court in the special leave petition and 3 compensation towards wrongful retention of the case file by the appellant and reimbursement of expenses incurred for telephone and postal charges
Thus in all the suit was laid against the appellant for a sum of Rs6000 by way of damages and compensation besides costs etc
The appellant entered appearance in the suit and filed a written statement refuting the charges of negligence and mis conduct levelled against him by the plaintiff and also disputing the plaintiff s right to seek damages or reimbursement of amounts from him under any of the heads set out in the plaint
During the pendency of the suit the plaintiff died and his legal representatives who are the respondents herein filed a petition under order XXII Rule 31 of the Code of Civil Procedure seeking their substitution in the suit for prosecuting the suit further
The appellant opposed the application and contended that as the suit was one for damages for personal injuries alleged to have been sustained by the plaintiff the suit abated on his death as per the maxim Actio Personalis cum moritur persona
The District Munsif upheld the objection and dismissed the suit as having abated but the High Court held otherwise and declared the legal representatives to be entitled to 611 get impleaded and continue the suit
The learned single judge who allowed the Revision has taken the view that Krishna Behari Sen vs Corporation of Calcutta ILR 31 Calcutta 993 sets out the correct ratio and hence he was following it in preference to the ratio laid in Rustomji Dorabji vs WH Nurse ILR 44 Madras 357 and Motilal Satyanarayan and Anr
vs Harnarain Premsukh  Anr The said order of the learned single judge is urlder challenge in this appeal
Even at the threshold of the judgment we may say that the ratio followed by the High Court is not a correct one
Section 306 of the which corresponds to Section 89 of the Probate and Administration Act 1881 sets out the rights of Executors and Administrators to continue actions of or against a deceased person
Section 306 which is almost a re production of Section 89 in the earlier Act reads as follows 306
Demands and rights of action of or against deceased survive to and against executor or administrator
All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease survive to and against his executors or administrators except causes of action for defamation assault as defined in the Indian Penal Code or other personal injuries not causing the death of the party and except also cases where after the death of the party the relief sought could not be enjoyed or if granted it would be nugatory 
 In so far as the rights of a legal representative to proceed with a suit filed by a deceased plaintiff is concerned order XXII Rules I and 31 govern the matter
They read as under 1
The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives
31 Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or sole plaintiff or sole surviving plaintiff dies and the right to sue survives the Court on an application made in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit
 612 These provisions of law have come up for consideration in a number of cases before several High Courts
The controversy in all the cases either under Section 89 of the Probate and Administration Act 1881 or under Section 306 of the centred round the meaning to be given to the words other personal injuries not causing the death of the party
Barring the Calcutta High Court and that too in one reported case only and the Rangoon High Court in one decision other High Courts have uniformly taken the view that the words personal injuries do not mean injuries to the body alone but all injuries to a person other than those which cause death and that the relevant words must be read ejusdem generis with the words defamation and assault and not with the word assault alone
It would suffice for our purpose if we set out the reasons given in the Full Bench decision of the Madras High Court in Rustomji Dorabji vs WH Nurse supra and merely give the citations of the other decisions where the same view has been taken
In Rustomji Dorabji vs WH Nurse Coutts Trotter J speaking for himself and Ayling J set out the law as follows
We are therefore driven to the conclusion that the Act must be supposed to have envisaged a logically coherent class of causes of action and that result can only be achieved by construing personal injuries as meaning not injuries to the body merely but injuries to the person in Blackstone s sense other than those which either cause death or tangible affect the estate of the deceased injured person or cause an accretion to the estate of the deceased wrong doer
In effect we think that the words which we have to construe are ejusdem generis not merely with the last preceding word assault but with the two preceding words defamation and assault
Emphasis supplied Kumaraswamy Sastri J the third judge in the Full Bench in his concurring judgment gave his reasons as under If the words were simply all personal injuries not causing the death of the party and omitted defamation or assault it may be argued that personal meant only physical and that causes of action for defamation and other similar injuries survived
The legislature took two types of personal injuries one physical and the other not and used them by way of illustration of what it meant to exclude
In this view the words other personal injuries not causing the death of 613 the party must be read with defamation and assault
There has been a conflict of authority on the question referred
In Punjab Singh vs Ramautar Singh  it was held by the Patna High Court that the words other personal injuries not causing the death of the party  in Section 89 of the Act are ejusdem generis not only with assault but also with defamation and include malicious prosecution
The same view has been held by the Madras High Court in Gandhiji Mareppa vs Firm of Marwadi Vannajee 2 and Marwadi Mothiram vs Samnaji 3 A contrary view was taken in Krishna Behari Sen vs The Corporation of Calcutta 4 where the learned Judges differed from Justice Henderson the trial Judge and held that to use the words other personal injuries not resulting in death in connexion with an action for defamation or malicious prosecution would be straining the language used by the legislature and placing on it an unnatural and forced construction
In Punjab Singh vs Ramautar Singh I Das J who was a member of the Calcutta Bar for several years observes that in his experience the case has never been followed subsequently in the Calcutta High Court
I would follow Punjab Singh vs Ramautar Singh I and Marwadi Mothiram vs Samnaji 2 and hold that a suit for damages for malicious prosecution abates
 Not only has this view been consistently followed by the Madras High Court in subsequent decisions but the same view has been taken by several other High Courts as may be seen from the following citations Madras High Court Palaniappa Chettiar vs Rajah of Ramnad ILR 49 Madras 208 Irulappa vs Madhava AIR 1951 Madras 733 Arnuchalam vs Subramanian AIR 1958 Madras 142 Bombay High Court Gopal vs Ram Chandra ILR XXVI Bombay 597 Motilal vs Harnarayan supra Nagpur High Court Maniramlala vs Mt Chalti Bai  Anr ILR 1938 Nagpur 280 Baboo vs Subanshi ILR 1942 Nagpur 650 Baboolal vs Ramlal AIR 1952 Nagpur 408 Patna High Court Punjab Singh vs Ramautar Singh AIR 1920 Patna 841 Jogindra Kaur vs Jagdish Singh AIR 1964 Patna 548 Madhya Pradesh High Court Ratanlal vs Baboolal AIR 1960 Madhya Pradesh 200 614 Andhra Pradesh High Court G Jayaprakash vs State AIR 1977 Andhra Pradesh 20
As against the preponderant view taken by several High Courts a Full Bench of the Calcutta High Court alone took a contrary view in Krishna Behari Sen vs Corporation of Calcutta supra
Maclean CJ speaking for the Bench held that the words personal injuries not causing the death of the party if accorded their natural and ordinary meaning appear to refer to physical injuries to the person which do not cause death
As has been pointed out by Das J in Punjab Singh vs Ramautar Singh supra the ratio in Krishna Behari Sen s case had not been followed subsequently by the Calcutta High Court itself in any other case
The view taken by the Calcutta High Court found solitary acceptance only in a decision of the Rangoon High Court in DK Cassim  Sons
vs Sara Bibi ILR XIII Rangoon 385
It is therefore clear that the contrary view taken by the Calcutta High Court is against the weight of judicial pronouncements by other High Courts
In a slightly different context the matter came to be considered by this Court in Melepurath Sankunni Ezhuthassan vs Thekittil Geopalankutty Nair A plaintiff s suit for damages for defamation was decreed by the Appellate Court but dismissed by the High Court in Second Appeal
There was an appeal to this Court by the plaintiff by special leave and during its pendency the plaintiff died
This Court declined to allow the legal representatives of the plaintiff to come on record and prosecute the appeal on the ground that by reason of the dismissal of the suit by the High Court the plaintiff stood relegated to his original position and therefore the proceedings abated on his death
The decision pointed out that the position would have been different if the plaintiff had a subsisting decree in his favour because then the cause of action would get merged in the decree and the decree would form part of the estate of the deceased which his legal representatives are entitled to uphold
The maxim actio personalis cum moritur persona  has been applied not only to those cases where a plaintiff dies during the pendency of a suit filed by him for damages for personal injuries sustained by him but also to cases where a plaintiff dies during the pendency of an appeal to the Appellate Court be it the First Appellate Court or the Second Appellate Court against the dismissal of the suit by the Trial Court andor the First Appellate Court as the case may be
This is on the footing that by reason of the dismissal of the suit by the 615 Trial Court or the First Appellate Court as the case may be the plaintiff stands relegated to his original position before the Trial Court
Vide the decisions in Punjab Singh vs Ramautar Singh supra Irulappa vs Madhva supra Maniramlala vs Mt Chalti Bai  Anr
supra Baboolal vs Ram Lal supra and Melepurath Sankunni Ezhuthassan vs Thekittil Gopalankutty Nair supra
In Palaniappa Chettiar vs Rajah of Ramnad supra and Motilal vs Harnarayan supra it was held that a suit or an action which has abated cannot be continued thereafter even for the limited purpose of recovering the costs suffered by the injured party
The maxim of actio personalis cum moritur persona has been held inapplicable only in those cases where the injury caused to the deceased person has tangibly affected his estate or has caused an accretion to the estate of the wrong doer vide Rustomji Dorabji vs WH Nurse supra and Ratanlal vs Baboolal supra as well as in those cases where a suit for damages for defamaton assault or other personal injuries sustained by the plaintiff had resulted in a decree in favour of the plaintiff because in such a case the cause of action becomes merged in the decree and the decretal debt forms part of the plaintiff s estate and the appeal from the decree by the defendant become a question of benefit or detriment to the estate of the plaintiff which his legal representatives are entitled to uphold and defend vide Gopal vs Ramchandra supra and Melepurath Sankunni vs Thekittil supra
Though Section 306 speaks only of executors and administrators and order XXII Rule 3 Civil Procedure Code sets out the rights of legal representatives to continue the proceedings instituted earlier by a deceased plaintiff if the right to sue survives the courts have taken the view that the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to continue the suit
We may in this connection only quote the following passage occurring in Melepurath Sankunni s case supra
Section 306 further speaks only of executors and administrators but on principle the same position must necessarily prevail in the case of other legal representatives for such legal representatives cannot in law be in better or worse position than executors and administrators and what applies to executors and administrators will apply to other legal representatives also Thus it may be seen that there is unanimity of view among many High Courts in the country regarding the interpretation to be given to 616 the words other personal injuries not causing the death of the party occurring in Section 306 of the and that the contrary view taken by the Calcutta  Rangoon High Courts in the solitary cases referred to above has not commended itself for acceptance to any of the other High Courts
The preponderant view taken by several High Courts has found acceptance with this Court in its decision in Melepurath Sankunni Ezhuthassan s case
It is on account of these factors we have expressed our disapproval at the outset itself of the view taken by the High Court in this case
What now falls for consideration is whether the suit filed by the plaintiff was founded on torts or on contract
Mr Kaushik learned counsel for the appellant in all fairness did not contend that the words other personal injuries must be read narrowly ie ejusdem generis only with assault and other physical injuries not resulting in the death of the party
His argument however was that the plaintiff s suit is wholly founded on torts because it related to the damages sought for by the plaintiff for alleged loss of reputation mental agony worry etc
and hence the suit is based only on the personal injuries of the plaintiff and it inevitably abated on his death
On the other hand Mr Khanduja counsel for the respondents contended that the suit is not really founded on torts but is founded on contract and there had been a breach of the conditions of engagement by the appeal being withdrawn contrary to instructions not to speak of the delay in the filing of the appeal
By reason of the breach of the conditions of engagenment the plaintiff had been evicted and put to loss and therefore the suit for damages really pertained to the loss suffered by the estate of the plaintiff and the said loss could well be claimed by the legal representatives after the death of the plaintiff
It was further urged by him that the suit amount consisted of claims under different heads and that while Rs4500 had been claimed by way of compensation for the monetary loss sustained by the plaintiff s estate the claims relating to Rs1500 under three different heads were also amounts due to the estate as expenditure suffered by it and hence it was not open to the appellant to contend that the suit was only for personal injuries sustained by the plaintiff and therefore it abated on his death
In view of the fact that this aspect of the matter has not been considered by the Trial Court or the High Court we do not think it proper to express any opinion one way or the other as to whether the suit cause of action is founded on torts or on contract
Since a copy of the plaint has not been furnished by either party we can only refer to the summary of the plaint contained in the order of the District 617 Munsif
The relevant portion reads as follows
A at a later stage he filed the petition and withdrew it the Special Leave Petition was dismissed as withdrawn defendant did not inform the plaintiff well in time plaintiff got suspicion over the attitude of the defendant he engaged another counsel in the Supreme Court and obtained certified copies of the petitioner s application and order of the Supreme Court on the application filed by the defendant even after several requests defendant has not returned the file defendant incurred Rs500 to obtain certified copies on account of the misconduct of the defendant plaintiff has suffered untold mental worry agony and loss of reputation plaintiff was evicted from the shop premises situated at Hampankatta he has not been able to secure a similar place for continuing his business the defendant is liable to pay the plaintiff an amount of Rs500 being the loss incurred by him to engage the service of another advocate to obtain the certified copies of the petition and application filed by the defendant in the Supreme Court that apart the defendant is liable to compensate the plaintiff to the extent of another sum of Rs500 as the defendant has not renurned the records that were entrusted to the defendant by the plaintiff and for the charges incurred by the plaintiff in sending telegrams or correspondences or for trunk phone calls for want of suitable place for continuing the business of the plaintiff the plaintiff has suffered damage or loss of over Rs20000 but the plaintiff restricts the claim to Rs4500 in this behalf
The plaintiff is entitled to be compensated by the defendant to the extent of Rs6000 as stated above viz Rs500 Rs500 Rs500 Rs4500 for loss of damage sustained by the plaintiff and the defendant is liable to compensate the plaintiff in this respect as he has not done his duty which he owed towards the plaintiff underlining by us Having regard to the nature of the claim we are not able to comprehend how without any enquiry and recording of evidence the Trial Court and the High Court have proceeded on the basis that the suit claim is based only on tortious liability though the two Courts have reached different conclusions about the abatement of the suit
The learned counsel for the respondent placed reliance upon the summary of the averments in the plaint set out above and argued that the 618 plaintiff had suffered loss of over Rs20000 due to the closure of the business and hence the restricted claim of Rs4500 is really towards loss suffered by the estate and not a claim made on the basis of the loss of reputation mental agony worry etc
suffered by the plaintiff
He further stated that the claim of Rs1500 under three heads of Rs500 each also related to the loss suffered by the estate of the deceased and hence the suit has to proceed for the entire suit claim
Since no discussion has been made and no finding has been rendered on this question and since we can not render any finding on the basis of the materials on record whether the suit is based on the personal injuries sustained by the plaintiff or upon the loss suffered by the estate we think the proper course would be to allow the judgment under appeal to stand even though we do not approve the reasoning of the High Court and dismiss the appeal
We leave the matter open for the Trial Court to decide whether the suit is founded entirely on torts or on contract or partly on torts and partly on contract and deal with the matter according to law
If the entire suit claim is founded on torts the suit would undoubtedly abate
If the action is founded partly on torts and partly on contract then such part of the claim as relates to torts would stand abated and the other part would survive
If the suit claim is founded entirely on contract then the suit has to proceed to trial in its entirety and be adjudicated upon
Before concluding the judgment it would not be out of place for us to refer to some English decisions and to the relevant provisions in the and the regarding the liability of counsel to pay damages to their clients for breach of duty or negligence
In England a distinction was made between barristers and other professional men and for a long time it was in usage that a barrister could not be sued by a client for negligence or breach of duty because a barrister s services were deemed to be gratuitous and therefore he could not sue or even make a contract for his fees with a client or with a solicitor who represented the client and correspondingly a barrister could not be sued by a client for breach of duty or negligence
The position is summarised by Prof Winfield in all the editions of his book on Torts from 1937 onwards as under The reason for this exemption is that in theory his services are gratitous and although that by itself is not a sufficient ground for preventing a legal duty from arising in other circumstances the rule with regard to a barrister is inveterate whatever be its justification
 619 The assumption however suffered a setback when the House of Lords enunciated a general principle in Hedley Byrne  Co Ltd vs Heller  Partners 1963 2 All ER 575
The principle has been enunciated in the speech of Lord Morris of Borth Y Gest as under If someone possessed of a special skill undertakes quite irrespective of contract to apply that skill for the assistance of another person who relies on such skill a duty of care will arise
By reason of this decision the Court of Appeals in Rondel vs W  and the House of Lords in Rondel vs Worsley  19673 All ER 993 had to rest the immunity of a barrister from being sued for professional negligence in the conduct of a cause on grounds of public policy
The facts in Rondel s case were that he was charged for having caused grievous bodily harm to one Manning
He was not given legal aid but after the case had proceeded for sometime he was afforded the facility of a Dock Brief and he chose a barrister by name Mr Worsley to act for him
The case eventually ended in conviction and the conviction was confirmed by the Appellate Court and Rondel underwent the sentence
Nearly six years later he issued a writ against Mr Worsley claiming damages for alleged professional negligence in the conduct of his duty
The writ was dismissed on the ground that an action against a barrister cannot be maintained on grounds of public policy for alleged negligence on his part in the conduct of the case especially when the action would amount to seeking a review of the correctness of the conviction awarded to Rondel in the earlier proceedings
In Heywood vs Wellers  the plaintiff was held entitled to recover damages from the defendant firm of solicitors for the mental distress which she had suffered as a result of the molestation suffered by the plaintiff consequent on the solicitor s negligent failure to enforce the injunction obtained against one Reginald Marrion
In that case the plaintiff instructed a firm of solicitors to apply for an injunction to restrain one Reginald Marrion from molesting her
The solicitors obtained an interim injunction on 27th February but when the defendant again molested the plaintiff on 28th April in breach of the injunction they failed to enforce the injunction by bringing the defendant before the Court
As a result of the failure to enforce the injunction the plaintiff was again molested by Marrion on 25th May and on 8th November
She suffered mental distress in consequence of the molestation committed on those dates
In an action 620 brought by her against the firm of solicitors it was held that she was entitled to recover damages as well as the costs incurred by her from the firm of solicitors In Midland Bank Trust Co Ltd  Anr
vs Hett Stubbs  Kemp a firm of solicitors was sued for damages for their failure to register a formal agreement as a consequence of which the plaintiff could not enforce his option under the agreement to purchase the freehold reversion of a farm at a stated price within a period of ten years as the estate had been conveyed to another
It was held that the solicitors were liable to the plaintiff in tort as they had failed to exercise due care and skill on which they knew the client would place reliance and because of the duty they owed to the client not to injure him by failing to do that which they had undertaken to do
Re Bell s Indenture Ben  Anr
vs Hickley  ors 1980 3 All 
R 425 is yet another case where a solicitor was held liable to replace the misappropriated money of his client as a constructive trustee
What happened in that case was that money was paid into the firm s client account in the name of express trustees
The express trustees misappropriated the money with the solicitors knowledge
It was held that the solicitor was liable to replace the money as a constructive trustee
In India the matter is governed by the 
In the a legal practitioner has been defined as an advocate vakil or attorney of any High Court a pleader mukhtar or revenue agent
 The preamble to the reads as follows An Act to define in certain cases the rights of legal practitioners to sue for their fees and their liability to be sued in respect of negligence in the discharge of their professional duties
 Section 2 to 5 are important and hence they are extracted below Section 2 For the purposes of this Act unless there is anything repugnant in the subject or context a legal practitioner means a legal practitioner as defined in section 3 of the  And 621 b a legal practitioner shall not be deemed to act if he A only pleads or to agree to act if he agrees only to plead
Any legal practitioner who acts or agrees to act for any person may by private agreement settle with such person the terms of his engagement and the fees to be paid for his professional services
Any such legal practitioner shall be entitled to institute and maintain legal proceedings for the recovery of any fee due to him under the agreement or if no such fee has been settled a fee computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner
No legal practitioner who has acted or agreed to act shall by reason only of being a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties
 reading of these sections would go to show that any legal practitioner who acts or agrees to act for any person may settle with the said person the terms of his engagement and the fee to be paid for his professional services that the legal practitioner will be entitled under law institute and maintain legal proceedings against his client for the recovery of any fee due to him under the agreement or as per the costs taxed by the Court where there has been no pre settlement of the fee and that no legal practitioner who has acted or agreed to act shall merely by reason of his status as a legal practitioner be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties
Therefore a legal practitioner cannot claim exemption from liability to be sued in respect of any loss or injury suffered by the client due to any negligence in the conduct of his professional duties merely by reason of his being a legal practitioner
As to whether Section 2B will afford protection to a legal practitioner from being sued for negligence by a client if he only pleads or agrees to plead is a matter for judicial determination in an appropriate case if an occasion arises for it
For the present we are not expressing any opinion on the matter except to point out that there is a specific provision in the Legal 622 Practitioner s Fees Act setting out that legal Practitioners would also be liable for being sued by their clients if they have been negligent in the performance of their professional duties
The nature of the controversy in this appeal as we have stated at the outset itself does not pertain to these questions
In conclusion since we find that the question whether the suit has abated or not can be answered only after the nature of the suit is determined on the basis of the materials placed and the evidence adduced by the parties the appeal has to be dismissed
The suit will stand restored to the file of Trial Court for disposal in accordance with law in the light of the guidelines given by us
Accordingly the appeal is dismissed
In the circumstances of the case the parties are directed to bear their respective costs
SL Appeal dismissed


Summary:
 In a petition filed by the All India Services Pensioners  Association and an IAS Omcer who had retired from service prior to l11973 respondents in the Appeal the Central Administrative Tribunal by its decision dated August 5 1985 declared that Rule 286 of the All India Services Death cum Retirement Benefits Rules 1958 insofar as it tended to restrict pensioners to retirement benefits to which they were entitled on the date of their retirement and sought to deny them the benefit of the Iiberalised pension and gratuity in the amended Notification No 331273 AIS ii dated January 24 1975 was violative of Article 16 of the Constitution and directed that all the members of the All India Service would be entitled to liberalised pensionary benefits including gratuity as per the said Notification irrespective of whether they had retired prior to January 1 1973 or thereafter
The Appellant Union of India in its appeal by Special Leave to this Court had not questioned the Tribunal s order insofar as its liabil H 698 ity to pay pension was concerned but sought leave against the direction to pay gratuity in accordance with the Notification even to those members of the All India Services who had retired prior to January 1 1973
On the question whether the members of the All India Services who had retired prior to January 1 1973 are entitled to payment of gratuity as a part of retirement benefits at the rates specified in the Notification No 3312 73 AIS ii dated 24
1 1975
Allowing the appeal  HELD1
In the Andhra Pradesh State Government Pensioners  Association vs State of Andhra Pradesh 1986 3 SCC 501 this Court had given reasons for not applying the rule in DS Nakara vs Union of India 19832 SCR 165 insofar as the liability of the Government to pay gratuity on retirement is concerned
704A B 2
The views expressed by this Court apply to all cases of gratuity where similar features exist and it should apply to the instant case too
704D 3
The way the Tribunal in the instant case has tried to ignore the decision of this Court in the Andhra Pradesh State Government Pensioners  Association case is not correct
The first ground relied on by the Tribunal not to follow the said decision is that it had been rendered by this Court while dismissing some special leave petitions is a wholly untenable ground
The second ground given by the Tribunal that the decision was one rendered in a case involving a Notification issued by the Andhra Pradesh Government and not one touching the Notification dated January 24 1975 is also not tenable
704C D 4
When reasons are given for dismissing Special Leave Petitions the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India
704B C 5
This Court has made a distinction between the pension payable on retirement and the gratuity payable on retirement
While pension is payable periodically as long as the pensioner is alive gratuity is ordinarily paid only once on retirement
706C D 6
The observation made by this Court in Andhra Pradesh State Government Pensioners  Association case and in ML Abhyankar vs UOI are binding insofar as the applicability of the 699 rule in DS Nakara s case to the liability of the Government to pay gratuity on retirement
706D E 7i The Government Notification No 331273 AIS ii dated January 24 1975 neither expressly nor by necessary implication directs that those who had retired prior to January 1 1973 would be entitled to any additional amount by way of gratuity
706E F 7ii The Tribunal was in error in upholding that gratuity was payable in accordance with the Government Notification No 331273 AIS ii dated January 24 1975 to all those members of the All India Services who had retired prior to January t 1973
It is declared that the members of the All India Services who had retired prior to January 1 1973 are not entitled to claim gratuity on the basis of the said Notification
706F G