ORDER
P.T. Raman Nayar, J.
1. The suit which the respondent herein wanted to bring in forma pauperis was be clearly bereft of case of action and be patently barred by time that I think that, in allowing his application for the purpose, the Court below failed to exercise a jurisdiction vested in it by law, namely, by Order XXXIII, Rule 5, of the Code which Bays [see Clauses (d) and (d1)] that the Court shall reject such an application where the allegations do not show a cause of action or the suit appears to be barred by any law.
2. The respondent was in the employ of a company known as Lipton (India), Ltd. On information laid against him by certain officers of the company in July 1952, he was prosecuted by the police for offences of criminal breach of trust and falsification of accounts. He was however acquitted by the Court on 6 December 1957. Meanwhile he had been dismissed on 6 August 1952, and on 4 August 1958 he brought his present application under Order XXXIII, Rules 1 and 2, the plaint wherein he prayed for the following reliefs:
(a) To declare that the order of dismissal of the petitioner-plaintiff by the defendant-company is wrongful, void, illegal and inoperative and that he is still in service of the defendant-company;
(b) to direct the defendant-company to reinstate the plaintiff-petitioner by appropriate orders;
(c) to direct the defendant-company to pay the plaintiff-petitioner his back-pay from 1 July 1952 to 4 December 1957 and thereafter till the decision of this case in future at Rs. 92 per mensem (Rs. 55 pay plus Rs. 37 dearness allowance) with 6 per cent interest thereon by way of damages; and
(d) to award the plaintiff-petitioner damages occasioned to him on account of the wrongful dismissal, prosecution and criminal proceedings and all other reliefs beneficial to plaintiff-petitioner that the Court deems just and proper under the circumstances.
3. In the first place I might observe that the defendant-respondent is named in the application is the manager, Lipton (India), Ltd. There is however nothing whatever in the body of the pauper plaint disclosing any cause of action against that person, and nothing to indicate that the company in being sued in his name. But since both Bides seem to have regarded the suit as a suit against the company and not one as Against its manager (although the present revision petition be brought in the name of the manager), I shall let the objection pass. Now, with regard to prayers (a), (b) and (c) in the pauper plaint, it is not pretended that the dismissal of the present respondent, even if it be wrongful, was in breach of any law. Although it is not expressly so stated, the pauper plaint proceeds on the footing that the dismissal was in breach of the contract of employment between himself and the company. If that be, it see may to me that the only relief that the respondent can obtain, assuming that his dismissal was wrongful, is damages for breach of contract for which under Article 115 of the Limitation Act, the period of limitation is three years from the date of breaoh, in other words, from the date of the wrongful dismissal. And in 80 far as prayer (c) asks for salary accrued due before the date of the dismissal, the salt would be governed by Article 102, under whlch the period of limitation is three years from the date the wages accrued due. In so far as the salt is for wages due or for damages for wrongful dismissal, it is clearly barred by time having been brought six years after the cause of action arose. And, in so far as it in for a declaration that the dismissal in void and inoperative and that the respondent is till in the service of the company and for a dscree requiring the company to reinstate him, paying him back-wages from the date of dismissal, it is bereft of a cause of action,
4. My attention has been drawn to the oases reported in Balasundara Mudaliar v. Ellappa Mudaliar (1957) I M.L.J. 7, and Dhandapani v. Salem Co-operative Wholesale Stores Ltd. 1959-I L.L.J. 635, in an attempt to show that these latter reliefs are available in an action for wrongful dismissal, but those oases are cases where the dismissal was in breach of a statute, so that in reality there was no dismissal at all, not a case like the present where the dismissal was only on breach of a contract. No case has been brought to my notice where it has been said that a person wrongfully dismissed in breach of a contract of service continues in service and that he is entitled to salary as if he had never been dismissed; nor am I aware of any. As I have already indicated, if there are statutes giving an employee a certain fixity of tenure, then it might well be that a dismissal in violation of the statute is inoperative and that the position is as if there was no dismissal at all.
5. Proceeding to prayer (d), I must remark that the body of the pauper plaint is as much a jumble and confusion as its cause-title and as the prayers made in it. It is difficult to find the necessary allegations to make oat a cause of action for malicious prosecution against anybody, for, there is no express averment anywhere that the person or persons who launched the prosecution did be without reasonable and probable cause and that they did so maliciously. Counsel for the respondent has been at considerable pains to make out such an averment by piecing together statements in different portions of the plaint. But, even so, the utmost that can be said is that there is perhaps, on the whole, an indication, if not an averment, that the persons who launched the prosecution did so through improper motives and without due enquiry. But that cannot spell out a case against the company which, according to both sides, in the real defendant in the suit. Information was given to the police by certain officer a of the company, pot there is no averment that in doing so they acted it the coarse of their employment so as to make the company vicariously liable. On the contrary, there is the express averment in Para. 3 of the plaint that they made the report to the police without even reporting the matter to the Madras office as they were bound to do. This would show that, far from acting in the course of their employment, they acted against the rules of the company.
6. I allow this petition and disallow the respondent’s application for permission to sue as a pauper, both with costs.
