SACHINDRA NATH SEN GUPTA Vs. THE GENERAL MANAGER, NORTH EAST FRONTIER RAILWAY, MALIGAON AND OTHERS

JUDGEMENT

(1.) THIS is an application under Article 226 of the Constitution of India for an appropriate writ directing the respondents to forbear from realising certain alleged overpayments made to the petitioner and for directing them to pay him his salary and other emoluments due to him as Assistant Traffic Superintendent from 26th August, 1963 to 18th January, 1968, in which post he was ordered to be reinstated by the order of the High Court affirmed by the Supreme Court. In his petition, he also claimed his pension to be fixed at the rate of Rs. 292/ - per mensem on the basis of the aforesaid reinstatement to service and this has since been acceded to by the respondents and therefore, we are not concerned with this particular relief. (Para. 5 of the counter -affidavit of the respondents).

(2.) BEFORE we deal with the matter, we may briefly state the facts. The petitioner was a permanent Railway servant holding the post of Assistant Traffic Superintendent in the North -East Frontier Railway. His services were terminated with one month's notice under Rule 148 of the Indian Railway Establishment Code with effect from 2nd December, 1957. Failing to get redress from the railway authorities, the petitioner, after the decision of the Supreme Court in Motiram Deka's case ( : AIR 1964 SC 600) disposed of on 5th December, 1963 moved a writ application in this Court (Civil Rule No. 2 of 1965) challenging the order of termination of service. This court allowed the application on 16th February, 1967 and the operative part of the order may be quoted:

(3.) THE learned counsel also relied upon a Full Bench decision reported in AIR, 1968 P&H 441 (Jagdish v. Union of India). The Full Bench had to resolve a conflict of decisions of several Division Benches of the Court taking opposite views. While one view was that a dismissed employee, on reinstatement could claim arrears of salary in a suit, if in time, for the entire period of his forced unemployment the other view was that the employee was not entitled to claim his salary for more than three years two months prior to the institution of the suit. The Full Bench reached the conclusion that the second view was correct. The Full Bench was dealing with a case arising out of an application under Article 226 of the Constitution and held that the same considerations as are applicable to a suit were applicable to that case. The Full Bench took this view relying upon a decision of the Supreme Court in Bhailal Bhai's case. : AIR 1964 SC 1006 (supra). We are, however, with respect unable to read in the above decision that the Supreme Court has made it an inexorable rule that in no case even where justice would require it, an application under Article 226 of the Constitution cannot be entertained beyond the period of limitation applicable in a suit. On the other hand, their Lordships of the Supreme Court have used a guarded language to the effect that "where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable." We, therefore, feel justified in holding that in a proper and appropriate case where justice demands that a writ should issue, the plea of limitation may not stand in the way. In the very decision, their Lordships have agreed with the submission "that the provisions of the Limitation Act do not as such apply to the granting of relief under Act. 226." It is, therefore, conceivable that notwithstanding delay in a case if the High Court, having regard to the entire background, nature and circumstances of a case and to the conduct of parties in the course of a particular dispute, chooses to exercise its jurisdiction in favour of issuing a writ under Article 226 of the Constitution, there is nothing in the Limitation Act to bar such exercise of power. We are, therefore, clearly of opinion that considerations on the score of limitation in a suit may have to give way to the justice of the case on the writ side, when it is demanded.