Sita Ram Goel v. The Municipal Board Kanpur

1148 **t** SUPREME COURT REPORTS SITA RAM GOEL [1959] _**.A.ugust**_ _z9._ -. _v •_ THE MUNICIPAL BOARD, KANPUR AND OTHERS (S. R. DAS c. J., BHAGWATI,. s. K. DAS, J. L. KAPUR and SuBBA RAo JJ.) _Limitation-Dismissal of employee_ _by _Municipal Board-Rejec-_ _tion of appeal to_ _Government-Suit against_ _order_ _of dismissal after_ _disposal of appeal-Period of limitation-U._ _P. Muni<ipalities Act,_ _I9I6_ (U. _P. 2 of I9I6),_ _ss._ _58,_ _69,_ _326._ The appellant was appointed as overseer by the Municipal Board, Kanpur, on March 5, 1937. and continued in its service up to March 19, 1951, when a copy of the resolution passed by the Board on March 5, 1951, purporting to dismiss him from service · was.handed over to him. On April 7, 1951, he filed an appeal to the Government against the order of dismissal from service, but he was informed on April 8, 1952, that his appeal was rejected. Thereafter on December 8, 1952, the appellant instituted a suit challenging the legality of the order of dismissal on various grounds, and the question arose whether the suit-was within time. Sub-section (1) of s. 326 of the U. P. Municipalities Act, 1916, provided that no suit shall be instituted against a Municipal Board "until t4e expiration of the two months n~xt after notice in writing has been left at the office of . the Board ... explicitly stating the cause of action"; and sub-s. (3) stated that "no action "'1Ch as is described in sub-s. (1) shall ... be commenced otherwise than within six months riext after the accr1,1al of the cause of action". The appellant contended that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal to the Government was communicated to him and the suit, filed within eight months of that date, was within time, and relied on. the provisions of s. 58 (r) and (2), read with s. 69, of the Act, which gave an officer dismissed by the Board a right .of app_eal to the Government within 30 days of the communication to him of the order dismissal : _Held,_ that though the order passed by the Board on March 5, 1951, was subject to a right of appeal to the Government, the operation of the order was not suspended by the mere filing of the appeal, and the order became effective from March 19, 1951, when- it was communicated to the appellant. The cause of actfon, therefore, accrued to him on that date, and the s1,1it filed by him on December 8, 1952, was barred by limitation under s. 326 of the U. P. M1,1nicipalities Act, 1916. CrvIL APPELLATE JURISDICTION: Civil Appeal No. 149of1958: r ' ' ; S.C.R. SUPREME COURT REPORTS 1149 Appeal by special leave from the judgment and order dated September 2, 1957, of the Allahabad High Court _Sita_ _Ram_ _Goel_ v. _The Municipal_ _Board,_ _Kanpur_ _Bhagwati_ _]._ in First Appeal No. 474 of 1956, arising out of the - judgment and order dated July 30, 1956, of the :First Addittonal Civil Judge, Kanpur, in Civil Suit No. 257 of 1953. Appellant in person. _C._ _B. Gupta,_ _G._ _0. Mathur_ and _0. P. Lal,_ for respondent No. I. _G._ _0. Mathur_ and _0. P. Lal,_ for respondent No. 4. 1958. August 19. The Judgment of the Court was delivered by BHAGWATI J.-This appeal with special leave under Art. 136 of the Constitution raises an interesting question of limitation. The appellant was appointed an Overseer by the Municipal Board, Kanpur, on March 5, 1937, with the approval of the Superintending Engineer, Public Health Department, Lucknow. He was confirmed by the Board's special resolution dated July 2, 1938, and continued in employ up to March 19, 1951, when a copy of the resolution No. 1723 passed by the Board on March 5, 1951, purporting to dismiss him frnm employ was handed over to him. Against the said resolution dated March 5, 1951, the appellant filed an appeal to the Uttar Pradesh Government on April 7, 1951, but was informed by a G. 0. dated April 7, 1952, that his appeal :Md been rejected. This information was received by him on April 8, 1952. Thereafter on December 8, 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 passeq _1_ [against ][him on ][the ][ground ][that ][the ][previous ] [approval ] , of the Superintending Engineer, Publi? Health Depart- ment was not ta.ken as required by the rules, that the '• 1150 , - ' SUPREME COURT REPORTS [1959) _**Sita**_ _**Ratn**_ _**Goel**_ v. _**The M unUipal**_ _**Board.**_ _**Kanpur**_ _**Bhagwati**_ _]._ 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 clmrges, that some of the grounds on which he was dismissed 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. 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 appellant's 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 @n certain grounds which were not the subject-matter of the charge 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. The appellant carried an appeal being First Appeal No. 474of1956 before the High Court of Judicature .at Allahabad and contended that the suit filed by him against the Board was within limitation. The appel- \ lant relied upo11 the provisions of s. 326 of the U. P. Municipalities Act (U. P. II of 1916) (hereinafter I S.C.R. SUPREME COURT REPORTS 1151 referred to as "the Act") and contended .that the period of six months contemplated by sub-s. (3) of _Sita_ _Ram_ _Goel_ s. 326 plus the period of two months required . for v. giving notice for filing the suit against the Board under _The Municipal_ sub-s .• (l) of s. 326, that is, 8 months should be com- _Board, Kanpur_ puted from April 8, 1952, on which date the order of v. _The Municipal_ _Board, Kanpur_ the dismissal of his appeal by the U. P. Government _Bh,.gwati_ _f._ was communicated to him and not from March 5, 1951, when the order of his dismissal by the Board was passed or March 19, 1951, when that order of dismissal was communicated to him by the Board. The High Court was of opinion that the Resolution dated March 5, 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 appellant's suit was barred by limitation under s. 226 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 C(jStS. An application filed by the appellant for a certificate for leave to appeal to this Court proved M:ifructuous, with the result that the appellant applied for and obtained from this Court special leave to appeal against this judgment of the High Court. The only question that arises for our determination in this a.ppeal is whether the appellant's suit was barred by limitation, because if that is determined against the appellant it will be conclusive of this appeal. Section 326 of the Act runs as under : #### ' "326(1) No suit shall .be instituted against a Board, or against a member, officer or servant of a board in respect of an act done or purporting to have been done in its or his official capacity, until the expiration of the two months next after notice in writing has been, in the case of a Board, left at its office, and in the case of a member, officer or servant, • delivered to him or left at his office or place of abode, 1152 SUPREME COURT REPORTS ' [1959] _**Sita**_ _**Rani**_ _**Goel**_ v. _**The JJuni(;ipal**_ _**Board,. Kanpur**_ explicitly. stating the c!rnse of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff and the plaint shall contain a statement that such notice has been so delivered or left. _Bhagwati_ _J._ (3) No action such as is described in sub-section **(1)** shall, unless it is an action for the recovery of immoveable property or for a declaration of title thereto, be commenced otherwise than within six months next after the accrual of the cause of action. ................................................................. " Prima facie the period of six months provided in s. 326(3) above would commence to run after the accrual of the cause of action and the cause of action on which the appellant came before the Court was .his wrongful dismissal from employ by the Board. Even the extension ·of this period by two months, the requisite period of the notice under s. 326(1) would not save the appellant from the bar of limitation because he instituted his suit more than eight months after the Resolution dated March 5, 1951, dismissing him from employ was communicMed to him. The appellant, therefore, particularly relied upon the provisions of s. 58(1) and (2) of the Act and urged that the cause of action accrued to him on April 8, 1952, when the order of dismissal of his appeal by the U. P. Government was communicated to him and the suit which he had filed on December 8, 1952, was therefore within time. Section 69 of the Act which applied to the appellant read as under : "A board may, by special resolution, punish or dismiss any officer appointed under s. 68 subject to the conditions prescribed in s. 58 in respect of the punishment or dismissal of an Executive Officer," and Section 58(1) and (2) provide: - "S. 58(1): A board may punish, dismiss or remove its Executive Officer by a special resolution supported \ - .by not less than ~/3rd members constituting the board, subject to his right of appeal to the State Government #####, t S.C.R. SUPREME COURT REPORTS 1153 within 30 days of the communroation to him of the order of punishment or dismissal. - _Sita Raw Goel_ (2); The State Government may suspend the Exe- v. cutive Officer pending the decision of an appeal under _The M_ uni~ip(!l sub-section (1) and may allow, disallow or vary the ~oard, _Ka>!J!<!r_ order of the Board." v. _The M_ uni~ip(!l ~oard, _Ka>!J!<!r_ It was argued by the appellant on the strength of _Bhact#.a,t(.J._ these provisions that the special resolution passed by the Board was subject to his right of appeal to the State Government within 30 days of the communication thereof to him and in the event of his filing an appeal against the same within the period specified, the resolution was kept in abeyance and did not come into operation until the decision of the appeal by the State Government. If that was so, he contended, his wrongful dismissal by the Board became operative as from the date when the decision of the State Government was communicated to him and that was the date on which the cause of action· in regard to his wrQngful dismissal accrued to him, with the result that the suit filed by him within 8 months of such communication (including the period of 2 months' notice) was well within time. He also supported this position by relying upon the provisions of s. 58(2) which empowered the State Government to suspend au employee pending the decision of the appeal, contending that such power vested in the State Government posited that the order of dismissal even though validly passed in accordance with the conditions specified in s. 58(1) was not to become effective until such decision was reached, because only in such event the State Government would be in a position to pass an· order of suspension pending the decision of the appeal. If the order of dismissal passed by the Board was to come into effect immediately on such special resolution being passed, there would be no meaning in the State Government being empowered to suspend the office1· :who had been already dismissed and the provision in thatoehalf would then be nugatory. It was, there/ fore, argued that such power vested in the State Government necessarily involved the consequence that the order of dismissal. could not be operative by its ' ,.. 1154 - ' I SUPREME COURT REPORTS [1959) own force but woult'l decision of the appeal, _Sil•_ _Ram_ _Goel_ the employee against v. own force but woult'l continue in abeyance until the decision of the appeal, once an appeal was filed· by _Sil•_ _Ram_ _Goel_ the employee against the order within the period v. _The Municipal_ specified. _Board. Kanpur_ On a plain reading of the provisions of s. 58~1) and (2), we are of opinion that this contention of the appel_Bhagwati_ _J._ lant is not tenable. One condition of the validity of the order of dismissal made by the Board is that t1le special resolution in that behalf should be supported by not less than 2/3rd members constituting the Board. Once that condition is fulfilled there is nothing more to be done by the Board and the only right which then accrues to the officer thus dealt with by the Board is to appeal to the State Government within 30 days of the communication of that order to him. He may choose to exercise this right of appeal or without adopting that procedure he may straightaway challenge the validity of the resolution on any of the grounds available to him in law, _e.g.,_ the non-observance of the principles of natural justice and the like. There is nothing in the provisions of s. 58(1) to prevent him from doing so and if without exercising this right of appeal which is given to him by the statute he filed a suit in the Civil Court to establish the ultra vires or the illegal.character of such resolution it could not be urged that such a suit was premature, he not having exhausted the remedies given to him under the statute.· The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his remedies JJnder 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 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 em. ployee who has thus appealed, against the rigour of \ - the order of dismissal passed by the Board against him. The e'lnplciyee may have been dismissed by the _I_ ####, S.C.R. SUP~EME COURT REPORTS 1155 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 s. 58(2) have to be read along with those of s. 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 been 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. Section 58(2) m\3rely prescribes the powers which the State Go~ernment may exercise in the matter of the appeal which has been filed by the employee against the order of the Board. The mere 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 9f his appeal, once he filed an appeal to the State Govern·ment as prescribed. We do not s~e apy words in • 147 _Sita_ _R<Lm_ _Goel_ v. _The M itn icipal_ _Board. I<anpur_ _Bhagwati_ _f._ _Sita_ _Rani_ _Goel_ v. _The_ _Alunicipal_ _Board,_ _J{anj)ur_ _IJh:Jgwafi_ _]._ ,_ ##### • • _II56_ SUPREME COURT REp<f,RTS [1959] s. 58(1) and (2) which would suspend the operation of the order passed by tlie Board or render it ineffective by reason of the filing or the pendency of the appeal. As a matter of fact the legislature in s. 61(3) of the very same Act while dealing with the right of appeal from the orders of the executive officer has expressly provided for such a contingency and enacted that when an appeal was filed within the specified period the order would remain suspended until the appeal was decided. A comparison of the provisions of s. 58(1) and s. 61(3) of the Act is thus sufficient to show that no such consequence was intended by the legislature when it enacted s. 58(1) of the Act. A similar provision 1enacted in the proviso to s. 71 of the U. P. District'Boards Act (U. P. X of 1922) may also be referred to in this context. 'Vhile dealing with the powers of dismissal or punishment of a Secretary or Superintendent of education by the Board the legislature enacted a proviso thereto that the Secretary or the Superintendent of education of a Board, as the c11se may be, shall have a right of appeal to the State Government against such resolution within one month from the date of the communication of the resolution to him, and that the resolution shall not take effect until the period of one month has expired or until the State Government has passed orders on any appeal preferred by him. The absence of any! such provision in s. 58 of the Act also goes to show that no such consequence was intended by the legislature. The enactment of s. 58(1) in the manner in which it has been done giving to the employee only a •right of appeal to the State Government within 30 days of the communication to him of the order .of the Board without anything more is enough to show that neither was the suspension of the order nor the postponement of the effect thereof as a result of the filing of an appeal ever in the contemplation of the legislature. It may be noted in passing that the appellant relied upon a decision of the Allahabad High Court in _Dist._ _Bqard, ShMijaha.npur_ v. _Kailashi_ _Nath('),_ which turned on tho construction of s. 71 of the U.P. District - (r) A l.R. I9J8 All. r99. ' ##### • • S.C.R. SUP~EME COURT REPORTS 1157 Boards Act set out above in support of his contention. The provisions of that section, however, are quite distinct from those of s. 58(1) of the Act before us and this case was rightly distinguished by the High Court in the.judgment appealed against inasmuch as by the express terms of s. 71 under consideration there, the dismissal was not to take effect until the period of one month had expired or until the State Government had passed orders on any appeal preferred by the employee. It is, 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. If this is the true position on a plain construction of the provisions of s. 58(1) and (2) of the Act what is the other principle which the appGllant can call to his aid in order to support his contention? He tried to eqmite the special resolution passed by the Boll-rd with a decree passed by a trial court and the decision of the appeal by the State Government with a decree passed by an appellate court and urged that in the same manner as a decree of the trial court became merged in the decree passed by the appellate court and no decree _of_ the trial court thereafter survived, the decision of the appeal by the State Government replaced the special resolution passed by the Board and such decision if adverse to him gave him a cause of action and the period of limitation commenced to run against him only from the date of such decree. The argument was that even though the cause of action in respect of f}UCh wrongful dismissal arose on the date when the ,. order of the Board was communicated to hiµi, once an _Sita_ _Ram_ _Goel_ v. _1'he_ _lW. ·unicipal_ _Board,_ _J(anp1u-_ _Bhagwati_ _j._ _1_ [• ] [appeal was filed ] [by ][him ][against ][that ][order within ] [t1'.e ] period prescribed that cause of action was suspended • and became merged in the cause ·of a.ction which t ll58 SUPREME COURT REPJRTS [1959] would accrue to him Qn the decision of his appeal by the State Government. The special resolution of the _Goel_ Board would then merge into the decision of the State v. Government on appeal and the only thing which then _/(anpur_ survived would be the decision of the State Gpvern ment on which either there would be a resuscitation or _]._ revival of the cause of action which had accrued to him on the communication of the order of the Board or the accrual of a fresh cause of action which could be ventilated by him within the period of limitation commencing therefrom. The initial difficulty in the way of the appellant, however, is that departmental enquiries even though they culminate in decisions on appeals or 'revision cannot be equated with proceedings before the regular courts of law. As was observed by this Court in _State_ _of U ttar Pradesh_ - v. _Mohammad N ooh_ (1) : ''. ........ an order of dismissal passed on a departmental enquiry by an officer in the department and an order passed by another officer next higher in r:i.nk dismissing an appeal therefrom and an order rejecting an application for revision by the head of the department can hardly be equated with any propriety with decrees made in a civil suit under the Code of Civil Procedure py the Court of first instance and the decree dismissing the appeal therefrom by an appeal court and the order dismissing the revision petition by a yet higher court, ............ because the departmental tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trappings of the-courts of law." The analogy of the decisions of the courts of law would therefore be hardly available to the appellant. - Our attention was drawn in this connection to cases arising under s. 144 of the Code of Civil Procedure which have held that the period of limitation is to i){l calculated.from the date of the original decree which"'. gave rise to the right of restitution and not from the \ - date of the decision of the last appeal which was filed _Sita_ _Ram_ _Goel_ v. _The Municipal_ _JJoard,_ _/(anpur_ _Bhagwati_ _]._ (1) [1958) S'.C:R. 595· I _**r**_ I ~ A filer the Appellate Court: had passed fits 'decision thli decree cif the tl'ial b0urt would no longer ~e in '6:l<istence and •he wou'ld !be entitled to base bis rights '!:d ge14 restitution on the Appellate Court's decree .. "Ji find myself unable to ·accept "this·'c'ontention as·tehit'ble. If the right to appl1 ·for restitution .W~s available to the' ruppellant·as soon,as the first' coi'trt :passed 'its jtldgment, time would certainly begir\. to run from <that.(;Ia.te under Art: 181' and the mere fact that •th!) judgment was challenged by way of an appeal which mighi; event'ually ~et it aside, does not,, in _•my_ opinion, operate tO' ;mspend the running of' time. 'Nor· w~ul'd the appellate court's dectee 'into :which the' decree. of the trial court would ·undoubtedly merge give' the' party a fresh starting point- for limitation." The analogy of the dem:ee of the trial courtmergin_g into a decree of .the appeai court' elearly dees liot apply to these cases. The· ·observations of Rankin: C. J. ·in _Hari_ _Moha;n_ v~ _Parameshwar Shau•(')_ are also in point.. Said ·the learned Chief Justice' -at l I . ' I l " [1] But the applicatilnl: ·to' be- niade 'unifor ·s. '144· n application which must be made to the Comt of ## ' !S'.C:Rl. 8UP~EME JJ©URT 'REPORTS <U59 against! it. Reliance W'as ',Pla~ed' on 'the followihk observations of B,.' K. Mukherjea J. (as 'he then was) _**'sitd**_ _**Ram**_ _**Goel**_ in _Bhabdranjan: J'Jas_ _v'._ _N ibaran Chandra_ ( [1] ) : v: . "The 'question therefore tha.t re1J,lly falls fo'i: _**Th6**_ ~nicipal deterqiination is as1 to whether tl:re•tiµie·for,such an _**'Hoard,**_ _**·f('ah'pur**_ application ought to b"e calcu1ated: from the· date' ol:' the .decision of the last appeal, or fro in the decree _**BhaCwati**_ _**j.**_ which for the first time gave1;'he 'appellant a ·right' to 1 apply.for restitution. It iS ''Conceded by 'tlie learhed i'\dvocate for ·the appellant tlrat he ·had undoubttldly the'right ta [1] pray for restitution at th'e time wh~n- th'e judgment was passed by the Mu;nsifi His contentio\:i is that it·wa:s not rtecessary fot him to apply· at the first opportunity·as there was an' ap~ea:l taken against that decision of the' trial judge arrd he could .wait· till the judgment of the Appellate Court was pronotmced: _**Th6**_ ~nicipal _**'Hoard,**_ _**·f('ah'pur**_ _**BhaCwati**_ _**j.**_ ·first instance whether the decree varied _<JI'_ (1) A.I.R. 1939 Cal.,349, 35I. (2) (1928) f.i..R. ~6 Cal'. 61, _18·_ _**Sita**_ _**Ram**_ _**Goel**_ v. _**The Municipal**_ _**Bpartt**_ _**.Kantn'r**_ _**Bhagwati**_ _]._ ### ' 1160 SUPREME Ce>1JRT REPJRTS r1959J Tha.t Court .h.a.s to d,et~rmine whether the applicaht is entitled -to apy: and•.wh~t b,enefits, by way of •restitution or oth~rwise, by):eason of the decree of the·appellate cQu.rt var:ring or:reve~sjng a•previous,decr'ee. 'iVe have to--det~mmine 1 this. ca,se. under Ant .. 181,,of the Limitation Aa£,·~rh'ich direqts us, _in_ g~neral langua;ge, to fin'd out,the. date. on ~vhich the applicant's right accrued. In.the ordinary and na.tural meaning df"the }vords,! their,,righ'.t accrued immediately the ·District Judge r,<;lversed ~he de.cision of the trial court, anti r~duced the amou:nt of ;the plaintiff's cla:im. '(Jnless, th~refore, ~ve. are required by ·reasQn of the nature .of the matter ~o ignore the effect of that decision, because it..,was confirmed on. appeal, ~t ·seems to me .to be w;rong to do so. • T,o R'efuse ~O' to. do .does not involve the proposition that two decre~s for the same -.thing m;i.y .be exeputed simul~a.neously. Nor· does. it inv.olve,. so, fa,r iw I caµ see, the affirmance of any other proposition, that can he 'r,egarded, as inco)l venient .or absµi;d. " .,, 1 • - 1 Fwthe:c, wh\ln..even.i£.the analog,y applies, where the decree of the appeal.court only· affirms the decree of the trial court, this Court has held in the _State_ _pf_ _U. P._ v. _Mohd. Noah('),_ that the original decree of the trial court remains operative., This Court has said at p. 6ll :- ·, I - ' "In the next place, whlle it is.true that a decree of a court of .first instancii .may -be said to merge in the decree passed on a pp.ea! therefrom or even ;in the order passed in revision, it does so only for certain purposes, namely, for the purposes o:fi computing the period of limitation for .execution of the decree as in _Ba(itlc_ _Nat[;_ v. _1Munni Dei_ ('), or for computing the period of limitation for an,application for, final decree in a n;10rtgage suit _as,in, _Jawad 'Hussain_ v . _. Gendan_ _Singh(')._ B1.1t as pointed by Sir Lawrence Jenkins in delivering the judgment bf the Privy CounlliJ, in _Juscurn Boid_ v. _P,irthichand.Lal_ ('),,whatever be~ theory urn;t~r other !lystems of la \V., under -thy India1 litw an,d procequre. an, original decree.is not suspended (<) [1958] S.C.R. 595. (2) 41 I.A. 104 . (3) 53 I.A-, 1~7· (4) 46 I.A. 52 . ###### **r** ·by, the.presentation.of an ·1appeal [0] tiJ.or is its;•opefatioh "interrupted where ;the. decree on'. appeal is merely;, orie of dismissal., ·Thern·is, ·:ri_dthing in .. the Indian' Jaw fo warrant the suggestion: that the Clecree or order: of tlie court or tribunal .of .the first ·instance becomes fiha:l only o'u.the·ter'llination of all proceedings by .way .of appeal or revision:".l'he_filing.~f the appeal or revision may put the decree or order in. jedpardy but until it ·is reversed or modified it remains effective .. ", The original decree' being ·thus operative what we are. really concerned with is ·the c·ommencement ·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 words ih spite of the apparent iniquitS of• applying the same. As .was pointed out by Seshagiri: Ayyar J. 'in _Mathu J(orakkai_ _Ghetty_ v. _Madar_ _Am'(llal_ (1): "Therefol·e -in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computationand the excusing of delay, etc., w:!Jich are provided in the Limitation Act, the langu.age of the third column of the first schedule should be so interpreted :as to citrry out. ~)rn, tr:u9 in bention of the legislature, that is to say, by dating the c~use of action from a date when the. re,m.edy is available to th e par t y.,, J' 1 I~ I 1'1' The cause of action in •the •pres~nt case a:ccrued 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 'ilf filing -a suit against \the Board in respect of his· wrongful dismissal was a vailA.ble to him from that date ·and it was open to him to pursue that remedy within the period of limitation pl'escribed e result 'is no doubt 'unfort'unate for the appellant, _x95f._ _**Sita**_ _**Rani**_ _**Goel**_ v. _**Tlte Mioiicipal**_ _**Board,**_ _**f(anp1i>**_ _**Bltagwati**_ _**J.**_ **f** , ##### . SBR~EM.E ~OUR'E' REBOR'.DS. HGI (>} (I9r9) I.L.R. 43 Mad. 185, 2I3. _**Sit'll**_ _**Ram**_ _**Goel**_ " v. _**The Municipal**_ _**BoaP'd,**_ _**Kanpur**_ _**Bhagwali**_ _]._ _**August**_ _**z9.**_ •• # ~~'~~ 1~62 SUBREME ([)OUR'.!! .-lRIEFck:J1S [1959] Act; he miglit possibl5' }).ave got'some .relief from the· Gourt. He however chose to· wait. Jtill the I decision of the State,Government on his appeal a'nd :overstepped the limit of time to his·owrt detriment. Wear\! unable to come to any other conclusion th'an tqe one r~ached above and the appeal mu§t, therefore, stand dismissed ; but in the peculiar circumstances of the case we make no order ;i.s to.costs: The appellant was- giv.en leave to proceed as a pauper and he prose'cuted this appeal in _forma_ _pauperis._ .H& has fa~led.in the appeal and we do order that he ·shall pay the .court-fee which would have been pa.id by him if'he had not been permitted to appeal as a;-pauper. 'The Registrar shall send to the Attorney. General for India a memor.a.ntlum of the court-fees payable by him a;s required by Or. XIV, r. 12, of the Supreme Court Rules. _Appeal_ dismis~~d _._ --· ·PURANM:ALL AGARWA~LA: _1J._ 'l'HE ST.ATE OF ORISSA (B. P. S!NHA and JAFER IMAM J-J:) _Double PU1iishmmt-Perso" convicted of transportili.g_ _ojnum-_ _If'ca1t_ _be_ _convicted_ _of being_ _it<_ _possession of opiwn also-Sente1'ce-_ .-' _Opium Act_ _(I of r878), ss. 4 and 9.l-Code of Criminal Procedure,_ _(I(_ _of_ r,llg,o), _s._ _35-fodian Pe1ial_ _Code_ _(X'LV of r86o),_ _s._ _';I,_ The appellant was caught while he was himsel> transporting OJlium. I;Ie was convicted undet,s. 9(a) of the Opium Act for "possession" of opium and under;;. 9(1>) of the Aat for " transport" of opium and was sentenced to µndergo rigorous imprison**ment for three months under each** **Count,** **the sentences** **run** oonsecutiV'ely'. The appellant contended that "transpo " included ''possession" and so the double punishment for posse sfon and transpott was riot warranted by law : - _Had,_ 'that possession of opium and transport of opium are,, two separate offences and the appellant could be convicted for