A government servant files suit against Government for salary dues. What procedural requirements must be followed?

The Mandatory Notice Under Section 80

Before filing the suit, the government servant must deliver or leave in writing a notice at the office of the appropriate authority — in the case of a suit against a State Government, this means a Secretary to that Government or the Collector of the District; in the case of the Central Government, a Secretary to that Government. The notice is not a mere formality. It must contain four essential ingredients: the name, description, and place of residence of the plaintiff; the cause of action, that is, the facts which give rise to the claim for salary dues; the relief claimed; and a statement in the plaint that such notice has been so delivered.

The language of Section 80(1) is, in the words of the Supreme Court, "express, explicit and mandatory." No suit can be instituted until the expiration of two months from the date of delivery of the notice. The purpose is not to create a technical hurdle for the servant, but to afford the Government an opportunity to reconsider its legal position, settle the claim if it be found just, and thereby avoid unnecessary litigation. The whole object, as the Supreme Court observed in Raghunath Das v. Union of India (AIR 1969 SC 674), is to give the Government sufficient warning so that it may, if so advised, afford restitution without recourse to court.

If the suit is filed before the expiry of the two-month period, the court must dismiss it as not maintainable and the plaint is liable to be rejected under Order VII, Rule 11(d). Equally, if the plaint does not contain a statement averring that the notice has been served, it cannot escape rejection.

What the Notice Must Contain

The notice must substantially indicate the cause of action and the relief claimed. There is no prescribed form, but it must fulfil its core object of informing the Government of the nature of the proposed suit. The Supreme Court has consistently held that while the terms of Section 80 must be strictly complied with, they must not be scrutinised in a pedantic manner divorced from common sense. Technical deficiencies — such as a minor mis-description of the addressee, or an incorrect invoice number — do not render the notice invalid if the Government was not misled and the cause of action was substantially communicated. Section 80(3) itself now provides statutory recognition of this principle, ensuring that a suit is not dismissed for technical errors in the notice if the plaintiff's identity and the substance of the claim have been substantially indicated.

Importantly, the identity between the person issuing the notice and the person who institutes the suit must be maintained. Where notice was issued in one name and the suit filed in another, courts have consistently held the notice to be invalid.

The Exception: Urgent or Immediate Relief

The rigour of Section 80(1) is somewhat relaxed by Section 80(2), which was inserted by the Amendment Act of 1976. Where the government servant requires urgent or immediate relief, he may, with the leave of the court, institute the suit without first serving the two-month notice. However, even in such cases, the court cannot grant any relief — whether interim or otherwise — without first giving the Government a reasonable opportunity to show cause. The grant of leave must be a conscious judicial act, preceded by an application indicating the grounds of urgency; the court must apply its mind to the question of urgency before granting leave. Mere urgency in the imagination of the plaintiff is not sufficient; the court must be satisfied that the purpose of the suit would be frustrated if the period of notice were awaited.

Naming the Correct Defendant

Under Section 79, in a suit against a State Government, the State itself must be named as the defendant, and in a suit against the Central Government, the Union of India must be named. The government servant who names an individual officer alone, without correctly framing the defendant, risks the suit being defective, though the courts have tended to permit correction where the error is not prejudicial. Section 79 is itself only a procedural section — it declares the mode of procedure but creates no new cause of action.

Order 27 and Conduct of the Suit

Order 27 of the Code specifically governs suits by or against the Government. One distinctive feature is that the Government is generally represented by a pleader appointed for that purpose, and such pleader may act on behalf of the Government without the usual vakalatnama that is required of private parties. The Government is also expected to file a written statement, and the court ought not treat its failure to do so lightly, since Government litigation is ultimately a matter of public accountability. The Supreme Court has observed, in a spirit of reproach, that the Government should never be treated as a favoured litigant, and courts should insist that the Government does its duties efficiently and does not abuse the privilege of procedural latitude.

The Limitation Dimension

One point that government servants frequently overlook is the treatment of the notice period under the law of limitation. The period covered by the two-month notice under Section 80 is excluded in computing the period of limitation for the suit. This ensures that a government servant is not penalised for the mandatory waiting period imposed upon him by the Code — the clock, in effect, stops during those two months.

In summary, the government servant must deliver a complete and substantive notice under Section 80, wait for two months, name the correct defendant under Section 79, ensure the plaint contains an averment of notice, and comply with the requirements of Order 27 — only thereafter is the suit procedurally in order for the court to entertain it on its merits.