T.P.K. Nair Vs. the Union of India (Uoi) and ors. - Court Judgment

Excerpt:
- - 6. it is true that when a suit has been instituted against several defendants, one of whom is the government or a public officer land notice under the section has not been given, the whole suit is not bad, but is bad only with reference to the government or the public officer. the test to see whether failure to serve notice on the government or the public officer would involve the dismissal of the suit in such cases in its entirety is whether the suit is maintainable as against the private individual without impleading the government or the official.1. plaintiff appeals. he was selected by the government of india for appointment to a post having the pay scale of rs. 2,500-3,000, but appointed in another post, as chairman of the marine products export development authority in the scale of pay of rs. 2,000-2,500 fixing his pay at the maximum of rs. 2,500.00. he says that the minister concerned offered to appoint him on a pay of rs. 3,000.00. he worked from 24-1-1973 up to 16-2-1977 and then resigned. while in service, he subscribed to the provident fund, which he claims to be contributory. his claims are:a) rs. 500.00 per month as salary for the period in service;b) contributory provident fund amount; andc) gratuity.2. contributory nature of the provident fund and entitlement to gratuity are denied on the basis of the central government rules. the alleged offer for rs. 3,000/- was also denied. main contention was that the suit is barred by limitation.3. all the claims were found against and the suit dismissed mainly on the ground of limitation. therefore, the other questions were not gone into in depth on the merits. hence the prayer was for a remand. i think that the prayer is justified, if the suit is found within time. therefore, i do not wish to consider anything other than the question of limitation.4. defendants are the union of india and the marine products exports development authority. there is a statutory prohibition against suing the union of india under section 80 of the civil p.c., without issuing a notice and waiting for two months. but that provision is not applicable to the marine products export development authority. the section deals with suits against the government and against public officers. the first category requires notice in all cases while in the second, notice is necessary only when the suit is in respect of any act purporting to be done by such public officer in his official capacity. the section is mandatory. its terms are imperative and admit of no exceptions or implications. a suit not complying with the provisions cannot be entertained and will have to be rejected under o. vii, rule 11. in this case, such a notice was validly issued as against the union of india and the suit was filed only after the expiration of two months after it was delivered. if that period is excluded, the suit is within time.5. when statutory notice, previous consent or sanction is a condition precedent to the institution of a suit, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded in computing the period of limitation. that is the mandate of section 15(2) of the limitation act. the date of application and the date of order shall both be counted for exclusion in cases of consent or sanction. if there is prohibition, as in the case of section 80, in the institution of the suit before the expiry of a particular period, the entire period has to be excluded. that is because the plaintiff is prohibited from instituting the suit during that period. this provision was not brought to the notice of the trial court. that is the sole reason why limitation was found and the suit dismissed. it is a condition precedent to the institution of the suit.6. it is true that when a suit has been instituted against several defendants, one of whom is the government or a public officer land notice under the section has not been given, the whole suit is not bad, but is bad only with reference to the government or the public officer. the test to see whether failure to serve notice on the government or the public officer would involve the dismissal of the suit in such cases in its entirety is whether the suit is maintainable as against the private individual without impleading the government or the official. but when one suit is filed against several defendants, and the plaintiff can invoke the aid of section 15 for deduction against one of them, such deduction is available against the rest of the defendants also. in order to claim exemption under section 15(2) of the limitation act, it is not necessary that the requirement of statutory notice is there against all the defendants. when a suit is jointly filed against several defendants, in order to get the exclusion of the period under section 15(2) for the entire suit, it is enough that the statutory notice is required as against any one of the defendants. but in a case where the state or the public officer is an unnecessary or improper party and there is no cause of action against them and they were impleaded without bona fides or by mistaken feeling regarding existence of cause of action, the exclusion is not available. in this case, all the defendants are necessary parties and hence these questions do not arise. therefore, the exclusion is available for the entire suit. i find that the suit is within time.the appeal is allowed and the decree and judgment are set aside. the suit is found to be within time. it is remanded for decision afresh after allowing the parties to adduce further evidence. no costs. office will transmit the records forthwith and the parties will appear before the trial court on 20-8-1990. court fee paid on the memorandum of appeal will be refunded to the appellant. in these circumstances, i am not adverting to the merits of the arguments on the claims.