Fazal Ali - (1.) THE Judgment of the court was delivered by -
(2.) THIS appeal by special leave is directed against a Judgment and Decree dated 11/02/1969 passed by the Allahabad High court modifying the decree passed by the lower Appellate court and decreeing the plaintiff's claim for arrears of salary, etc., for a period of three years from the date of the suit adding two months to this period. The facts of the case lie within a narrow compass and may be summarised thus : Zamirul Hassan (hereinafter referred to as the 'employee') was employed as a tubewell technician in the Irrigation Department of U. P. government (hereinafter referred to as the 'Government'). In the year 1954, Zamirul Hassan was posted at Lucknow and was drawing a salary of Rs. 110.00 per month plus Rs. 30.00 as Dearness Allowance. He was granted medical leave from 15/02/195 4/04/1954 after which he applied for extension of his leave which was ( however, refused. Accordingly, the employee reported for duty on 20/04/1954 but he was not given charge of office on that date. Instead the employee was served with notice dated 27/03/1954 terminating his services with immediate effect on the ground that he had reached the age of superannuation. The employee challenged the validity of the notice through a representation given to the Chief Engineer, Irrigation Department, contending that as he was below 55 years of age, he could not be superannuated. Ultimately, the Superintending Engineer upheld the contention of the employee by his Order dated 31/12/1955 and ordered his reinstatement directing that the intervening period may be treated as leave admissible to him. The employee was then posted at Mathura on 15/02/1956. On 7/01/1957, however, the employee suddenly fell ill at Budaun and died on 12/01/1957. Even in spite of his reinstatement the employee did not receive his salary from 15/02/1954 to Feb 14/02/1956 amounting to Rs. 3,360.00 an also from 1/01/1957 to Janu 12/01/1957 which amounted to Rs. 53.00. Thus, the total amount which was claimed to be due to the employee up to the time of his death came to Rs. 3,413.00 which remained unpaid. On the death of the employee, his widow, the present appellant, along with her daughters, obtained a succession certificate and made a claim to the respondent-Government Despite the claim the arrears of the salary of the employee were not paid and hence the present plaintiffs after giving notice, under S. 80 of the Code of Civil Procedure, to the government brought the present suit for recovery of Rs. 3035-5-0. The Civil Judge held that the suit was not barred by time and decreed the suit. Thereafter, the government went up in appeal to the appellate court which confirmed the judgment and decree of the trial court. The appellate court, however, directed the plaintiff to produce a succession certificate from the District Judge before receiving the amount. Having lost in the courts below, the government filed asecond appeal in the High court and contended that the Order dated 31/12/1955 was a valid one and the direction that the intervening period may be treated as leave was in accordance with law and hence the plaintiff could not claim the amount during this period. The High court overruled the plea taken by the government on this point It was then contended before the High court that the suit was barred by limitation under Article 102 of the Indian Limitation Act (Act 9 of 1908), as it then stood, The central dispute between the parties in the High court was as to what should be the starting point of limitation in this particular case. According to the appellant, the starting point of limitation would be the date when the employee was reinstated and restored to service and therefore he was entitled to the entire salary 580 which became due. The stand taken by the government was that the period of limitation was to be computed not from the date of his reinstatement but from the date when the salary became due and therefore the claim for salary which was due for any period beyond throe years of the filing of the suit was barred by limitation. The High court partially accepted this argument and held that the suit was undoubtedly barred for any claim preferred by the plaintiff beyond three years from the date of the filing of the suit except for a further period of two months from the date of the institution of the suit. The High court accordingly allowed the appeal and modified the decree of the courts below. We might mention here that the trial court decreed the plaintiff's suit after coming to a clear finding that the employee, Zamirul Hassan; should have been treated to be on duty during the entire period because he was illegally prevented from doing his duty. As a logical conclusion of this finding, the trial court also held that the employee was entitled to his pay at the rate claimed by him for the period mentioned in the plaint. It was further held by the trial court that on the representation of the employee, his services were fully restored and he was therefore entitled to his full salary. The appellate court and the High court affirmed this finding of fact given by the trial court. Thus, the admitted position before us appears to be that the employee having been reinstated would be deemed to have continued in service right from the date when he was superannuated to the date when he died as the Department itself reinstated and restored his service. There was thus no justification for the Superintending Engineer to have given a direction that the period of his suspension would be treated as leave. The trial court had held that the suit was not barred by limitation for any part of the claim of the plaintiff. The High court, however, differed only on this limited question of law. We have heard learned counsel for the parties and although we find that the question is not free from difficulty, the decisions of this court show that the view taken by the High court is legally erroneous. The High court mainly relied on a decision of this court in Shri Madhav Laxman Vaikunthe v. State of Mysore as also a previous decision of the Federal court in Punjab Province v. Pandit Tarachand.
(3.) ARTICLE 102 (now ARTICLE 7 of Limitation Act) 1963) may he extracted thus: JUDGEMENT_578_3_1980Html1.htm The Federal court in Punjab Province case had clearly laid down that the term 'wages' appearing in Article 102 of the limitation Act of 1908 included salary and in this connection observed thus : Article 102 applies to suits for wages not otherwise provided for by the schedule and covers in our judgment a suit to recover arrears of pay. . . . In Article 102 it is intended in our judgment to cover all claims for wages, pay or salary, not otherwise expressly provided for in any other Article of the schedule. It further held that a servant of the Crown in India had the right to maintain a suit for recovery of arrears of pay which had become due to him. This 581 decision was given because there was some controversy on the question as to whether or not a suit for arrears of salary could be brought in a court of law. The controversy appears to have been set at rest by the Federal court in the aforesaid decision. Furthermore, the court held that where an order of dismissal is invalid the position is that the employee was never dismissed in the eye of law and would be deemed to have continued in service until retirement. In this connection the court observed : The Order of 19/03/1938, purporting to dismiss the respondent having been made by an authority that had been expressly debarred by S. 240(2) of the Constitution Act from making it, was utterly void of all effect. It was in the eye of the law no more than a piece of waste paper. The position is that the respondent was never legally dismissed from service and continued in law to be a Sub-Inspector of Police till the date on which he was under the conditions of his service due to relire. He was thus entitled to draw his salary for the period of his service after 19/03/1938. ;