Sahgal, J. - (1.) THIS is a plaintiff's appeal whose claim for a sum of Rs. 31,931.06 P. has been decreed for a sum of Rs. 20,529.06 P, only and has been dismissed for the rest of the amount. But as a counter-claim has been decreed against him in favour of the defendants for a sum of Rs. 20,529.06 P. that is, the amount for which his suit had been decreed, this appeal has been valued at Rs. 31,931.06 P. that is the whole amount for which the original suit was filed. There is a cross objection also to the extent of Rs. 26,239.54 P. praying for the setting aside of the decree passed against the defendants respondents to the extent of Rs. 20,529.06 p. and for interest on the amount for which the counter-claim was decreed by the trial Court amounting to Rs. 5,710.48 P.
(2.) THE plaintiff appellant belonged to the Indian Service of Engineers and was posted in the State of Uttar Pradesh. By an order of the President dated the 17th of April, 1953 he was ordered to be compulsorily retired forthwith. On receiving the communication relating to the order of the retirement of the plaintiff, the Secretary to the Government of Uttar Pradesh directed the Chief Engineer, Irrigation Department under whom the plaintiff appellant was serving to relieve him of his duties immediately and for the communication of the date of relief to the Government and the Accountant General. The plaintiff coming to know about it filed a writ petition in the High Court challenging the order relating to his compulsory retirement. The writ petition was filed on the 24th of April, 1953 and on that very date an interim stay order was issued by the High Court restraining the State of Uttar Pradesh from removing the plaintiff from his post. This stay order was made absolute on the 8th of May, 1953. The copy of that order is Ext. 24 at page 71 of the printed paper book. Shri Kanhaiya Lal Misra, Advocate General who appeared on behalf of the State of Uttar Pradesh made a statement that the State was willing to pay the plaintiff his salary till the decision of the writ petition but was not prepared to take work from him or to allow him to work as Superintending Engineer, the post at which he was working at the time the order of his compulsory retirement was passed. In the circumstances the Court made it clear that the State was not bound to take work from him or to allow him to work as Superintending Engineer during the pendency of the petition but they will pay him the salary month by month as usual till the decision of the writ petition. The writ petition was. however, dismissed on the 1st of October, 1953. The plaintiff filed an appeal against the dismissal on the 13th of October, 1953. On that very day a stay order was obtained from the Supreme Court which was made absolute on the 25th of November, 1953. The order is in following terms: "On hearing the learned counsel on both sides we make the ad interim stay order absolute and direct that the payments made by the Government during the pendency of the appeal (?) in the High Court will continue to be made pending the disposal of this appeal. The petitioner gives his consent that if the appeal is decided against him the money that will be thus paid to him should be deducted from the Provident Fund amount which is due to him" (Vide Ext. A-3 at page 115-116 of the printed paper book). In the meantime, however, the plaintiff had to be continued to be paid his salary as Superintending Engineer in terms of the interim order of the High Court well as of the Supreme Court However the Accountant General would not allow any payment to be made unless the appellant held some post A notification had to be issued creating a temporary post of an Officer on Special Duty attached to the office of the Chief Engineer, Irrigation Department to which post the plaintiff was accredited. He accordingly continued to draw pay as an Officer on Special Duty from the 15th of May, 1953 to the 28th of February, 1954. After the Supreme Court decided the case and dismissed the appeal, further payment to the plaintiff for the post of the Officer on Special Duty was withheld. The plaintiff claims that he remained in service up to the 30th of March, 1954 the date of the dismissal of the appeal by the Supreme Court and as such should be allowed his salary at the rate of Rs. 21507- per mensem from the 1st of March, 1954 to the 30th of March, 1954 which comes to a sum of Rs. 2080.00. The General Provident Fund Account of the plaintiff before the period ending 31st March 1954 stood at Rs. 1,09, 623.00. After the order was passed by the Supreme Court the Government of Uttar Pradesh directed the Accountant General that the order contained in Ext. A-8 at page 132 of the printed paper book already referred to above compulsorily retiring the plaintiff was revived and the plaintiff retired from the 15th of May, 1953 the date on which he ceased to work as Superintending Engineer. It was accordingly ordered that the amount paid to him thereafter at the rate of Rs. 2150.00 under orders of the High Court and the Supreme Court be recovered from him. The plaintiff was accordingly not paid the whole amount of Rupees 1,09,623.00 which stood in his General Provident Fund Account on the 31st of March, 1954 but after deducting a sum of Rupees 21,881.06 P. he was allowed payment of a sum of Rs. 87,741.94 Paise only. He claimed in his suit the recovery of that amount also. In all a suit was filed for a sum of Rs. 31,931.06 Paise made up of the following items; Rs. 1. Balance of the General Provident Fund of the plaintiff 21,881.06 2. Interest on the Provident Fund of Rs t.09,623 at the rate of 4 per cent per annum from the 1st April, 19B4 to the 31st September. 1954 (This is to be allowed under the General Provident Fund (Central Services) Rules) 2,192.00 3. Interest on Rs. 1.09.623.00 at the rate of 6 per cent per annum from 1st October, 1954 to 15th March, 1955 3,014.00 4 Interest on Rs 21,881.06 P. at 6 per cent per annum from 16th March, 1955 to 25th March. 1957 (16th March appears to be the date when the payment of this sum was withheld, that is, the rest of the amount was paid while 25th March, 1957 seems to be tht date of the notice under section 80 of the Code of ,650.00 Civil Procedure.)Though there is an unexplainable discrepancy between the date given in item no.3 and this date, this discrepancymay not bematerialfor the purposesof this case. There is also a difference betweenthe parties as to the date when the Provident Fund to the extent of Rs. 87,741.94 was paid.While theplaintiff's caseisthat Itwas paid on the 15th March, 1955, that of the defendants is that it was paid on the 25th November, 1954 (Vide paragraph 11 of the plaint and paragraph 11 of the written statement). There is no specific finding of the trial Court on this point as the view that it took did not necessitate, any such finding. 5 Salary for the period from 1st March. 1954 to30th March. 1954 .08000 8. Interestontheabove sum of Rs. 2.080.00 (the salary due but not paid) at therate of 6percentperannum from 17th April, 1956 to 25th March.1957 114.00 Total.931.06 The plaintiff claimed that the undertaking given by him before the Supreme Court was invalid and could not be enforced as such not binding on him. He claimed to have continued in service upto the 30th of March, 1954. It is in these circumstances that the suit was filed for the amount already referred to above. On the other hand, the case of the defendants, that is, the State of Uttar Pradesh, the Union of India, the Controller and Auditor General of India and the Accountant General of Uttar Pradesh under whose ultimate orders the payment was withheld, was that the services of the plaintiff were terminated on the 15th of May, 1953 for in view of the dismissal of the writ petition by the High Court and subsequently the appeal by the Supreme Court, he must be deemed to have compulsorily retired on that date. They also pleaded that as a result of the undertaking by the plaintiff before the Supreme Court they were justified in withholding the payment from the Provident Fund of the amount received by him as pay from the 15th of May, 1953 to the 28th of February. 1954. In the alternative their claim was that they are in any case entitled to that amount and for that amount they filed a counter-claim to the extent of Rs. 20,529 06. They claimed interest on this amount to the extent of Rs 5710,48 P. the total of the counter-claim coming to Rupees 26,239.54 P. They also claimed that there had been an error in calculating the mount due as General Provident Fund inasmuch as a sum of Rs. 1352.00 has been wrongly included therein as to which a Statement of Account contained in Ext. C-6 was filed. Both the parties disputed the claim of each other as to interest also. The learned Civil Judge who tried the case held that the orders of the High Court and the Supreme Court are merely interim orders subject to the final result of the litigation in those Courts. They did not mean that the plaintiff continued in service during the period till the Supreme Court decided the appeal. The result was that after the decision of the writ petition and the dismissal of the appeal, the order of retiring the plaintiff compulsorily, revived and his services must be deemed to have been terminated on the 15th of May, 1953. He was therefore, not entitled to recover any salary after the 15th of May, 1953 and whatever was paid to him thereafter was refundable. He was, however, of opinion that the amount could not be lawfully deducted from the Provident Fund and on that account he passed a decree for the amount recovered from him from his Provident Fund by deducting salary realized by him for the period from the 15th of May, 1953 to the 28th of February, 1954. On the other hand, he granted a decree in favour of the defendants for that amount. He also held that parties were not entitled to charge any interest, there being no stipulation for doing so. He also held that there was an error of a sum of Rs. 1352.00 in the Provident Fund Account being an excess of interest added in previous years and that it should not be allowed to the plaintiff. The result was that the suit was decreed for a sum of Rs. 20,529.06 P. The defendants, however, also were granted a counter-claim against the plaintiff for a sum of Rupees 20,529.06 P. It is against this decree that this appeal has been filed by the plaintiff and a counter claim by the defendants, the claim in appeal having already been referred to above.
(3.) THE first point to be considered is as to whether the plaintiff appellant should be deemed to have been compulsorily retired from the 15th of May, 1953 as claimed by the defendants and held by the trial Court or from the 30th of March, 1954 when the appeal was dismissed by the Supreme Court.;