Judgment

MAHAJAN, C.J.I. : This is an appeal by the State of Bihar against the judgment of the High Court of Judicature at Patna whereby the High Court passed a decree for arrears of salary of the respondent against the State from 30-7-1940 up to the date of the institution of the suit.

2. The undisputed facts of the case are: That the respondent was appointed a Sub-Inspector of Police by the Inspector-General of Police, Bihar and Orissa, in January 1920. In the year 1937 departmental proceedings were taken against him and he was found guilty of cowardice and of not preparing search lists and was punished by demotion for ten years. On appeal, the Deputy Inspector-General of Police held that the respondent was guilty of cowardice but acquitted him of the other charge. By an order dated 23-7-1940 which was communicated to the respondent on 29-7-1940 the D.I.G. of Police having found him guilty of cowardice made an order dismissing him from service. Further appeals by the respondent to the Inspector-General of Police and to the Governor of Bihar were unsuccessful.

3. Aggrieved by the departmental action taken against him, the respondent filed the suit out of which this appeal arises in the court of Additional Subordinate Judge against the State of Bihar for a declaration that the order of the D.I.G. of Police dismissing him from service was illegal and void and that he should be regarded as continuing office. He also claimed a sum of Rs. 4,241/- from 30-7-1940 to the date of the suit on account of arrears of salary. The State contested the claim and pleaded that the plaintiff held his service at the pleasure of the Crown, and could not call in question the grounds or the reasons which led to his dismissal, and that in any case he had been reinstated in service from 30-7-1940 and the order of dismissal therefore was no longer operative, and the suit had thus become infructuous.

The Additional Subordinate Judge by his Judgment dated 2-2-1945 dismissed the suit on the finding that the Government having reinstated the respondent he had no cause of action. As regards the arrears of salary, it was held that the claim to it could only be made according to the procedure prescribed under R. 95 of S. 4 of Chapter 4 of Bihar and Orissa Service Code. This decision was confirmed in appeal by the Additional District Judge. On further appeal the High Court reversed these decisions and decreed the claim for arrears of salary in the sum of Rs. 3,099-12-0. It was held that R. 95 of the Bihar and Orissa Service Code had no application because the respondent had never been dismissed within the meaning of that Rule. It was further held that the plaintiff was entitled to maintain the suit for arrears of pay in view of the decision of the Federal Court in Punjab Province v. Tara Chand , AIR 1947 FC 23 (A), the correctness of which was not affected by decisions of the Privy Council in cases of --- High Commr. for India v. I. M. Lall , AIR 1948 PC 121 (B) and --- North West Frontier Province v. Suraj Narain Anand , AIR 1949 PC 112 (C).

4. The principal questions involved in this appeal are :

(1) Whether the High Court correctly held that R. 95 above-mentioned had no application to the case?

(2) Whether a suit for arrears of salary by a civil servant is competent in a civil court?

5. Rule 95 of the Bihar and Orissa Service Code provides :

"Rule 95, When the suspension of a Government servant as a penalty for misconduct is upon reconsideration or appeal, held to have been unjustifiable or not wholly justifiable; or when a Government servant who has been dismissed or removed, or suspended pending enquiry into alleged misconduct is reinstated :

the revising or appellate authority may grant to him for the period of his absence from duty

(a) if he is honorable acquitted, the full pay to which he could have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his d