Labh Singh Waryam Singh vs Union Of India Through The General ...
1966 Latest Caselaw 40 Del

JUDGMENT

(1) This is a plaintiff's appeal from the judgment and decree of the learned Additional Senior Sub-Judge, with enhanced appellate power, Delhi, affirming the judgment and decree of the Court of first instance dismissing the plaintiff's suit for a declaration that this alleged reversion to the post of a semi-skilled labourer in the grade of Rs.35-1-60 from the grade of Rs.55-130 is illegal, ultra vires and void, and that he continues to be a skilled labourer in the grade of Rs.55-130 as a pump engine driver and also entitled to receive his pay in the grade of Rs.55-130 from 1st January, 1962 to the date of decree as well as in future.

(2) It is unnecessary to give various details of the plaintiff's prior history. Suffice it to say that, according to him, he was confirmed to the post of a skilled labourer as a pump engine driver at Shakurbasti in the pay scale of Rs. 55-130 from 1st January, 1947. The defendant-respondent has, on the toher hand, pleaded that the plaintiff, on joining the East Punjab Railway, was posted as an assistant pump engine driver at Shakur Basti and has continued as such in the semi-skilled grade. Payment of higher salary to the plaintiff, according to the defendant's plea, was due to a mistake, and that rectification of the mistake does nto amount to a reduction in the rank attracting Article 311 of the Constitution. The short question, therefore, which falls for consideration, is whether the plaintiff was confirmed as a pump engine driver and, therefore, a skilled labourer, or his substantive post was that of an assistant pump engine driver, which is admittedly the post of an unskilled labourer.

(3) buth the Courts below have come to the conclusion that the plaintiff has all along been an unskilled labourer and was never confirmed as a skilled labourer.

(4) On second appeal in this Court the learned Counsel for the appellant has very strongly argued that since he had been paid right from 1st January, 1947 at the rate permissible to a skilled labourer, it must be held that he was employed as a skilled labourer and his reversion to the scale of an unskilled labourer on 3rd January 1962, retrospectively, amounts to a punishment within the contemplation of Art. 311 of the Constitution, and, therefore, open to challenge in the present proceedings. Main - if nto sole - reliance on behalf of the applicant has been placed on Exhibit P. 6, which is a statement showing the rates of pay provisionally fixed in the prescribed scales of pay and refixed as a result of finalisation etc. This document is dated 23rd December, 1953, and it shows against the name of the plaintiff that his scale of pay was Rs. 35-60 with effect from 1st January, 1947, and he was getting Rs.36 per month. This was the rate buth provisionally fixed and refixed in the prescribed scale and further increments revised. He was, however, granted the officiating pay scale of Rs. 55-130; and he was actually getting Rs.55 per month, according to this document. This was admitted by the plaintiff. It is argued that the fact, that the plaintiff was officiating in the pay scale of Rs.55-130 shows that he was a skilled labourer.

Support for this submission has been sought from a Single Bench decision of the Punjab High Court in the Harbans Lal Amar Chand v. State of Punjab, . But in that decision all that was held was, so far as helpful to the appellant, that the direction, as to refund of salary received earlier on account of a provisional promtoion, which was later cancelled, was hit by the provisions of Article 311(2) of the Constitution. The reported case does nto support the appellant's submission that he should be considered to have been substantively appointed a skilled labourer. The decision of the Supreme Court in the State of Punjab v. Jagdip Singh, on which also reliance has been placed, does nto seem to be of much assistance to the appellant. Of course, this decision does lay down that it is always the substance of the order, which is to be seen, and nto the words in which it is framed. Even so, it does nto seem to help the appellant very much.

(5) The learned counsel for the appellant has, however, very seriously argued that the retrospective operation of the impugned order would mean that he would be called upon to refund the salary, received by him for the last several years. The plea does nto seem to have been raised in the plaint with the result that it has nto been tried in the Courts below. The respondent's learned counsel has referred me to Messrs. Trojan and Co. V. Nagappa Chettiar, which lays down that the decision of a case cannto be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; and further that without an amendment of the plaint, the Court is nto entitled to grant the relief nto asked for. The proportion laid down by the Supreme Court is well recognised. The respondent's counsel has also referred me to a Bench decision of the Calcutta High Court in Benukar Mahata v. State of West Bengal according to which the Government servants have no legal right to a revision of their scale of pay, which in the first place, is a matter of contract and secondly, it is subject to rules that may be framed from time to time. This decision is also an authority for the view that reduction, resulting from a normal administrative decision to correct a mistake, does nto involve any penalty and, therefore, does nto attract Article 311(2) of the Constitution. In the present case, it is urged that only a mistake has been rectified and such rectification does nto involve any unconstitutional infirmity. In my view, this challenge is difficult to sustain on the pleadings of the parties. It would, however, be open to the plaintiff, to seek whatever remedy is open to him under the law, when the respondent seeks to enforce or claim a refund of the salary, already received by him, years ago. The claim to such a refund may be contested on cogent legal grounds but that contingency would arise when such a right is enforced. In the present suit, I am afraid, it is nto open to this Court to go into this matter, because all that is claimed in the plaint is a declaration in regard to the illegality of the order dated 3rd January, 1962, reducing the plaintiff's salary, as violative of Article 311 of the Constitution. In regard to the refund of salary, received by the plaintiff in the past, no relief is claimed and indeed for that relief no cause of action is alleged in the plaint.

(6) For the reasons, forgoing, this appeal fails and is dismissed, buth in the peculiar circumstances of the case the parties are left to bear their costs.

(7) Appeal dismissed.