Case: Sita Ram Goel Vs. Municipal Board, Kanpur &amp; Others

2. The appellant was appointed an Overseer by the Municipal Board, Kanpur, on 5-3-1937, with the approval of the Superintending Engineer, Public Health Department. Lucknow. He was confirmed by the Boards special resolution dated 2-7-1938, and continued in employ up to 19-3-1951, when a copy of the resolution No. 1723 passed by the Board on 5-3-1951, purporting to dismiss him from employ was handed over to him. Against the said resolution dated 5-3-1951, the appellant filed an appeal to the Uttar Pradesh Government on 7-4-1951, but was informed by a G. O. dated 7-4-1952, that his appeal had been rejected. This information was received by him on 8-4-1952. Thereafter on 8-12-1952, the appellant filed the suit out of which the present appeal arises, being Suit No. 257 of 1953 in the Court of the Additional Civil Judge. Kanpur, impleading the Municipal Board, Kanpur, Shri S. B. Gupta, Municipal Engineer, Shri Brahmanand Misra, the then Chairman of the Municipal Board and the Government of Uttar Pradesh as defendants and challenged the legality of the dismissal order passed against him on the ground that the previous approval of the Superintending Engineer, Public Health Dept, was not taken as required by the rules, that the appellant was denied an opportunity of being heard in person by the Board, that no show-cause notice for the proposed punishment of dismissal was issued to him by the Board nor were the charges framed by it, that the dismissal order did not specify the charges, that some of the grounds on which he was dismissal did not form the subject-matter of the charges at all, that in any case, the charges framed were false and malicious. The appellant prayed for a declaration that the order of his dismissal was ultra vires, illegal, and void and claimed a total amount of Rs. 10,951 in respect of damages, allowances for doing officiating work, bonus, arrears of salary and provident fund.3. The suit was contested mainly by the Board and its defence was to the effect that the order of dismissal was not vitiated on the grounds of illegality or irregularity and in any case the suit was barred by limitation.The trial court found:(a) that the appellants substantive appointment was that of an Overseer and not that of a Drainage Overseer as claimed and the approval of the Superintending Engineer, Public Health Department, Lucknow, for his dismissal was not necessary;(b) that the order of dismissal of the appellant was ultra vires on the ground that he was not given an opportunity of being personally heard by the Board;(c) that no notice to show cause against the proposed punishment was issued by the Board;(d) that the order of dismissal was based on certain grounds which were not the subject-matter of the charges and that the Chairman of the Board was not competent to try the appellant; but(e) that the suit of the appellant was barred by limitation. The trial court accordingly dismissed the suit with costs.5. The appellant carried an appeal being First Appeal No. 474 of 1956 before the High Court of Judicature at Allahabad and contended that the suit filed by him against the Board was within limitation. The appellant relied upon the provisions of S. 326 of the U. P Municipalities Act (U. P. II of 1916) (hereinafter referred to as "the Act") and contended that the period of six months contemplated by sub-s. (3) of S. 326 plus the period of two months required for giving notice for filing the suit against the Board under sub-s. (1) of S. 326, that is, 8 months should be computed from 8-4-1952 on which date the order of the dismissal of his appeal by the U. P. Government was communicated to him and not from 5-3-1951, when the order of his dismissal by the Board was passed or 19-3-1951, when that order of dismissal was communicated to him by the Board.6. The High Court was of opinion that the Resolution dated 5-3-1951, passed by the Board took effect immediately as it was an order which was complete and effective by itself and its operation was not postponed for any further period nor was its effect suspended until the State Government had passed orders in appeal. It accordingly came to the conclusion that the appellants suit was barred by limitation under S. 326 of the Act. In view of the said finding the High Court did not go into any other questions at issue between the parties but dismissed the appeal with costs.An application filed by the appellant for a certificate for leave to appeal to this Court proved infructuous, with the result that the appellant applied for and obtained from this Court special leave to appeal against this judgment of the High Court.

Reasoning:
The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his remedies under the special Act does not apply to a suit.There is nothing in S. 58(1) which expressly or impliedly bars his right of suit. The provisions contained in S. 58(2) above would also not help him for the simple reason that the power which is vested in the State Government of suspending an employee pending the decision of the appeal can hardly be said to be a condition of the order of the Board. In any event, that power is given to the State Government for giving relief to the employee who has thus appealed against the rigour of the order of dismissal passed by the Board, against him. The employee may have been dismissed by the Board, in which case on looking at the prima facie aspect of the matter the State Government may as well come to the conclusion that the operation of the order of dismissal may be stayed and he be suspended instead, thus entitling him to subsistence allowance during the pendency of the appeal. If the appeal is eventually dismissed the order of dismissal by the Board will stand; if the appeal is allowed he will be entitled to continue in the employ and enjoy all the benefits and privileges of such employment, but he would not have to starve during the period that the appeal was pending before the State Government. The provisions of Section 58(2) have to be read along with those of Section 58 (1) and it cannot be urged that the power of suspension vested in the State Government is to be exercised in any other case except that of dismissal or removal of the employee by the Board. In the case of any other punishment an order of suspension passed by the State Government pending the decision of the appeal would only mean that during the pendency of the appeal the State Government is empowered to visit on him a higher punishment than what has meted out to him already by the Board. Such an absurd position could never have been thought of by the legislature and the only way in which S. 58 (1) can be read consistently with S. 58 (2) is to construe this power of suspension vested in the State Government to apply only to those cases where a higher punishment than suspension has been meted out by Board to the employee.Sec. 58 (2) merely prescribes the powers which the State Government may exercise in the matter of the appeal which has been filed by the employee against the order of the Board. The more filing of an appeal has not the effect of holding the order of the Board in abeyance or postponing the effect thereof until the decision of the appeal. Such a construction would on the other hand involve that even though a special resolution was passed by the Board dismissing or removing the employee he would continue to function as such and draw his salary pending the decision of his appeal, once he filed an appeal to the State Government as prescribed. We do not see any words in S. 58(1) and (2) which would suspend the operation of the order passed by the Board or render it ineffective by reason of the filing or the pendency of theis, therefore, clear that even though the order passed by the Board was subject to the right of appeal given to the employee in the manner aforesaid, the operation of the order was not suspended nor was its effect in any manner postponed till a later date by the mere filing of the appeal and it became effective from the date when it was communicated to the employee. The cause of action, if any, accrued to the employee on the date of such communication and the period of limitation commenced to run from that date.The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these word in spite of the apparent iniquity of applying the same.The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under Section 326 of the Act.