SOMADUTTA Vs. JANAPAD SABHA, SOHAGPUR

JUDGEMENT

(1.) THIS is a Plaintiff's first appeal against the lower Court's decree by which his claim for declaration (a) that he continued to be in the Defendant's service from 10 March 1941 to 30 April 1953 and (b) that he was entitled to his salary, including increments; and pension on that basis and for two sums, together with future interest, namely, (i) Rs. 5,363/ - accrued due as arrears of salary and (ii) Rs. 2,000/ - on account of compensation was dismissed. The Plaintiff has filed Second Appeal No. 276 of 1957 against the reversing decree of the lower appeal Court whereby the order of the Board of Revenue dated 12 September 1950 was declared to be without jurisdiction and the Plaintiff was required to refund to the Defendant a sum of Rs. 1,826/5/ -. This judgment will govern the two appeals, which involve common questions of fact and law.

(2.) THE undisputed facts are these. The Plaintiff entered Government service in 1918 as a clerk in the Education Department. In the year 1921, his services were transferred to the District Council, Hoshangabad. In due course, he was promoted as Head Clerk. He was working on that post in 1948 when the Local Government Act, 1948 (XXXVIII of 1948) came into force, the District Council, Hoshangabad, ceased to exist and Janapada Sabhas were constituted under the new Act. The services of the Plaintiff were transferred to the Janapada Sabha, Sohagpur (Defendant), under which as before, he continued to work as Head Clerk. He was suspended on 10 March 1949 and a departmental enquiry was held against him. He appealed against the order of suspension to the Deputy Commissioner, who stayed that order but, later on, cancelled it thinking that he had no power so to do. The matter was, however, referred to Government, who, by an order dated 24 September 1949, set aside the order of suspension with retrospective effect. Then upon the Plaintiff was allowed to resume his duties on 8 October 1949. Even so, as a result of the departmental enquiry, the Plaintiff was found to be inefficient and grossly negligent and was therefore, dismissed with effect from 19 October 1949. The Plaintiff's appeal against his dismissal was dismissed by the Deputy Commissioner on 12 December 1949. Subsequently, by an order dated 12 September 1950 passed in revision, the Board of Revenue set aside the order of dismissal and directed that the Plaintiff be treated as on duty between 10 March 1949 to 19 October 1949 and should be retired on pension from 12 September. 1950. The Defendant applied for a review of the Board's order but failed to get it set aside. Thereupon, for the period 10 March 1949 to 11 September 1950. the Plaintiff was paid a sum of Rs.2,651/2/ -on account of his salary and increments. In pursuance of the order of the Board dated 12 September 1950, he was also retired from service.

(3.) THE Defendant denied that the Board of Revenue ordered reinstatement of the Plaintiff and pleaded that he was directed to be retired with effect from 1 September 1950. It was in pursuance of that order that arrears of his salary up to 11 September 1950 were paid to him and thereupon he was retired and his pension papers were prepared and sent to the State Government. These steps were, however, taken under a mistake. On the material date, the Plaintiff was a Head Cleric drawing a salary of Rs. 115/ -per mensem. Since no revision against the dismissal of the Plaintiff's appeal by the Deputy Commissioner lay to the State Government, the order of the Board of Revenue dated 12 September 1950 was without jurisdiction, illegal and of no effect. Consequently, the dismissal of the Plaintiff on 19 October 1949 continued to be legally effective. That being so, there could be no question of his reinstatement or of his being in service after that date. It was for this reason that the pension papers sent to the State Government were being withdrawn and a suit was filed for recovering back the arrears of salary paid to him under a mistake. In any event, even apart from the order of the Board of Revenue, the Plaintiff, who had completed more than 25 years of qualifying service, could be retired at any time without assigning any reason and on this ground also the claim as laid was unsustainable. Nay, it was barred by time under Section 173 of the Local Government Act since it was instituted more than six months after the accrual of the cause of action