State of Maharashtra vs J.S.D. Borgai

G.N. Vaidya, J.—A short point of limitation arises in the above First Appeal, filed by the State of Maharashtra, against the judgment and decree, dated July 30, 1966, passed by the Civil Judge, Senior Division, Sangli.

The material facts may be shortly stated as follows:-

On October 30, 1964, the respondent J. S. D. Borgai filed a suit to recover from the State of Maharashtra, Bombay, a sum of Rs. 36,941 as the arrears of pay and allowances from the period from 4th March 1950, to 30th November 1961, to which he had become entitled as a result of the judgment of this Court in Second Appeal No. 107 of 1958, dated July 12, 1961.

The plaintiff was appointed as a Sub-Inspector of Police in the then province of Bombay, in 1941, and was confirmed in that post in 1943. In 1948, he was working as Sub-Inspector of Police at Sangli. In October 1948, an offence of house breaking and theft was committed in the house of one Dada Laxman and registered at the Sangli City Police Station. In the course of the investigation certain gold ornaments weighing 60 tolas, out of the articles alleged to have been stolen, were recovered at Nipani; and they were attached under a panchanama by the police. It was later on found that about 16 tolas of gold was missing.

The respondent Borgai was suspected of having misappropriated the same. On November 12, 1948 an offence u/s 409, Indian Penal Code was registered against him and three constables. But after due investigation a report of ''A'' summary was sought for and granted on January 27, 1949. Before the investigation was thus dropped, the District Superintendent of Police, Sangli, started a departmental inquiry against the plaintiff.

On January 3, 1949, charges were framed against him. The District Superintendent of Police, Sangli, came to the conclusion that the plaintiff might not have misappropriated the missing gold himself; but he held that he was only guilty of general slackness and want of supervision. In view of this conclusion the District Superintendent of Sangli, passed an order of punishment against the plaintiff reducing his pay of Rs. 150 per month to that of Rs. 135 per month, for a period of two years. The plaintiff joined his service immediately thereafter.

The Deputy Inspector General of Police, Belgaum Range, while forwarding the monthly returns recommended to the Inspector General of Police, that the punishment inflicted on the plaintiff by the District Superintendent of Sangli, should be enhanced. Shri Kamate, who was then the Inspector General of Police, went through the record of the inquiry proceeding and came to the conclusion that the charge of misappropriation of the missing gold levelled against the plaintiff was not established. He, however, agreed with the decision of the District Superintendent of Sangli, with respect to the other charges and did not consider it necessary to enhance the punishment already awarded by him to the plaintiff. He confirmed the order of punishment and sent back the papers.

Thereafter Shri Chudasama, the new Inspector General of Police, who succeeded Shri Kamate, looked into the inquiry papers and thought that the plaintiff was not properly punished. He issued a notice to the plaintiff on October 5, 1949, to show cause why be should not be removed from service. After considering submissions made to him by the plaintiff, Shri Chudasama finally passed an order of removal of the plaintiff from service on March 1, 1950.

The plaintiff''s appeal against that order was dismissed on August 16, 1950. After giving the usual notice, the plaintiff filed Civil Suit No. 348 of 1953, on November 23, 1953, in the Court of the Civil Judge, Senior Division, Sangli, against the Government of Bombay, for a declaration that the order passed by the District Superintendent of Police, Saogli, on February 21, 1949, reducing his pay from Rs. 150 per month to Rs. 135 per month and the order passed by the Inspector-General of Police on March 1, 1950, removing him from service were both illegal, inoperative and void.

The learned Civil Judge, Senior Division by his judgment dated June 30, 1956, declared the order of the District Superintendent of Sangli, dated February 21, 1949, and that of the Inspector General of Police dated March 1, 1950 to be illegal, inoperative, void and not binding on the plaintiff. It was further held that Sub-Inspector of Police, J. S. D. Borgai was on duty on the date of institution of the suit, i. e. November 23, 1953. The Assistant Judge at Sangli, confirmed the decree and dismissed the appeal with costs on October 31, 1957.

The State filed Second Appeal No. 107 of 1958, in the High Court at Bombay. On July 12, 1961 the appeal was partly allowed by setting aside the decree in so far as it related to the declaration that the order passed by the District Superintendent of Police, Sangli, dated February 21, 1949, was illegal, inoperative, void and not binding upon the plaintiff and confirmed the rest of the decree relating to the declaration that the order passed by the Inspector General of Police, dated March 1, 1950, was illegal, void and inoperative and that the plaintiff remained in Government service as Sub-Inspector of Police, at the date of the institution of the suit.

As per the decree of this Court, the plaintiff was reinstated in service as Sub-Inspector of Police with effect from November 16, 1951, as per Government G. R. of Law and Judiciary Department No. 22440-M, dated 5th November 1961. After his reinstatement the plaintiff submitted an application dated February 2, 1962, to the District Superintendent of Police, Sangli, and claimed arrears of pay and all other allowances for the period during which the order of his removal from service which was subsequently declared by the High Court as illegal and invalid, remained in force.

The matter was referred to the Government by the Inspector General of Police and the defendant Government by its letter No. PDE/3458-11270/IX dated 26th June 1962, in the Home Department informed the Inspector General of Police that :-

Government is pleased to direct that the period of absence from duty of Police Sub-Inspector J.S.D. Borgai from the date of his removal from service to the date of his reinstatement i. e. from 4th March 1950 to 30th November 1961 should be treated as duty, subject to the conditions that no arrears of pay and allowances should be paid to him for the period from 6th May 1955 to 30th November 1961, during which he was employed at Ghatprabha, Left Bank Canal Division No. 1. Also no arrears of pay and allowances should be paid to Shri J. S. D. Borgai for the period from 4th March 1950 to 5th May 1955 as that period is barred by the Law of Limitation (vide Exh. 32).

Accordingly on his reinstatement and his posting as Sub-Inspector of Police at Sangli, the plaintiff''s pay and allowances were fixed giving him the benefit of the increment which he would have earned if he would not have been removed from service and he has been receiving his pay and allowances accordingly till to-day. However, the plaintiff was not given the arrears of pay and allowances for the period from 4th March 1950 and 30th November 1961.

The plaintiff therefore, served the Government with a notice dated May 7, 1964, u/s 80 of the Code of Civil Procedure; and filed the present suit on July 10, 1964, to recover a total sum of Rs. 36,941 on account of arrears of pay and allowance for the period from 4th March 1950 to 30th November 1961; and he was also allowed to sue in forma pauperis.

The suit was resisted by the Government on various grounds including the pleas under Order 2, rule 2 of the CPC and the Law of Limitation. All the objections raised by the Government were overruled; and the learned Civil Judge, Senior Division, Sangli, held that the cause of action in the present case arose when the High Court finally decided the matter, on July 12, 1961, and therefore the suit filed on July 10, 1964, to recover the arrears of pay and allowances from the date of his removal from service, was within the period prescribed under Article 7 of the Limitation Act, 1963, observing as follows:

He bad no tight to claim arrears of pay and allowances from Government and that he acquired the right to claim the same, from Government only when the order of his removal from service came to be ultimately declared as illegal and invalid by the High Court on 12th July 1961. He, therefore, urged that in view of the provisions contained in rule 150 of B. C. S. Rules, the normal rule that the salary of a public servant accrues from month to month would not be applicable on the facts of the case to plaintiff''s a claim and that the cause of action for plaintiff''s claim must beheld to have arisen on the day when the High Court finally declared plaintiff''s order of removal from service as illegal and void. So Shri R. P. Patil, urged that as plaintiff''s suit is filed within 3 years from the date of the High Court decision, viz, 12th July 1961, in Second Appeal the entire claim for arrears for pay and allowances put forth by plaintiff in this suit is perfectly within limitation.

The learned Judge then referred to the authorities cited by the parties and upheld the contention that the cause of action for the suit arose on July 12, 1961, and not when the salary accrued due from month to month after his removal from service was declared to be null and void.

The said decision is challenged before us on the ground that the view taken by the learned Civil Judge, is contrary to the view taken by J. C. Shah J., as he then was, in Jai Chand Sawhney Vs. Union of India (UOI), , where Rule 2042 of the Railway Establishment Code merely provided that "the pay and allowances of a Railway servant who is removed or dismissed from service cease from the date of the order of removal or dismissal". That rule does not operate to make the wages to accrue due on the date of the institution of the suit. It was held in that case that "if the order of dismissal is set aside, the public servant is deemed to be in service throughout the period during which the order of dismissal remained operative, and his right to sue for salary arises at the end of every month in which he was unlawfully prevented from earning the salary, which he could, but for the illegal order of dismissal, have earned".

Mr. Pratap the learned Assistant Government Pleader has also urged that the view taken by the Civil Judge is inconsistent with what has been held in Dr. V. D. Angal v. The State of Maharashtra 1967 Mh. LJ 1019=69 Born. L R 710, by a Division Bench of this Court. In that case, it was held:

That the fact that the order of dismissal was invalid or void did not give a fresh starting point of limitation and that, therefore, the plaintiff''s claim for arrears of salary which became due three years before the filing of the suit was barred under Article 102 of the Indian Limitation Act.

Mr. Pratap also referred us to two unreported decisions of this Court, viz., First Appeal No. 225 of 1967, dated October 8, 1975, (by Shah and Sawant JJ.) and Second Appeal No. 1259 of 1967, dated January 22, 1965, (by Apte and Joshi JJ.), in support of his contention that the plaintiff cannot claim more than the arrears of salary and allowances for a period of three years plus two months prior to the suit.

There can be no doubt, having regard to the identical provisions contained in Article 7 of the New Limitation Act, 1963, which came into force on January 1, 1964, and in view of what has been decided in the above cases, that the learned Civil Judge, Senior Division, Sangli, erred in law, in passing the decree in favour of the plaintiff, for arrears of salary and allowances for more than three years and two months prior to the suit. The decree is contrary to the ratio in Jai Chand Sakwanay''s case. We, therefore, modify the decree by awarding only the salary and allowances due to the plaintiff for a period of three years prior to the suit, plus the period of 2 months of notice u/s 80 of the Code of Civil Procedure. As the plaintiff was reinstated from November 30, 1961, and has received the salary subsequent to that date, it is not disputed that the only amount to which the plaintiff is entitled, having regard to the above decisions, is in respect of his salary and allowances for a period of only seven months. This comes to Rs. 1435.

In the result, the First Appeal is allowed.

The decree passed by the Civil Judge, Senior Division, Sangli, is set aside. Instead, a decree is passed in favour of the plaintiff by directing the defendant to pay to him Rs. 1435 with future interest from the date of the suit till payment at the rate of 4 per cent per annum till realisation.

The decree for costs passed by the learned trial Court shall stand confirmed. In the facts and circumstances of the case, the appellant to pay the costs of the respondent, even in respect of the above First Appeal.