Vasuki Ammal vs R. Joseph

Kanakaraj, J.—The plaintiff is the appellant before me. She filed a suit for recovery of a sum of Rs. 6326.62 being the arrears of salary

payable to her. The facts leading to the said suit are as follows: The appellant/plaintiff was appointed as a Secondary Grade teacher on 7.10.1968.

On 21.1.1971 her services were terminated. Against the said termination of service, the appellant filed an appeal to the District Educational

Officer. By an order dated 1.6.1971, exhibited as A-l, the termination was set aside and there was a direction to reinstate the appellant in service.

Against the said order of the District Educational Officer, the respondent School filed an appeal to the Chief Educational Officer. By an order

dated 17.11.1971 (Ex.A-2) the order of the District Educational Officer dated 1.6.1971 was confirmed. Thereafter, there seems to have been

some representations to the Director of School Education which were rejected on the ground that no further appeal was maintainable before the

Director of School Education. Therefore, in effect, the final order in the departmental proceedings was the order of the Chief Educational Officer

dated 17.11.1971. Though the appellant was making representations ultimately she was reinstated only on 7.8.1973. After adjusting certain

payments, she laid a claim for Rs. 6326.62 on 26.7.1976 as being the arrears of salary for the period 21.1.1971 to 7.8.1973. The defence of the

respondent was that three months salary was received in full quit of the claim of the teacher and in any event, the suit was barred by limitation. The

trial court decreed the suit as prayed for. On appeal, the decree has been modified restricting the decree only for the month of July, 1973 and for

seven days in August, 1973. According to the appellate court, the claim for the earlier months was barred by limitation. The appellate court held

that the cause of action arises from the date of the order of reinstatement made by the District Educational Officer on 1.6.1971. The salary for the

month of July, 1973 being payable on the 1st of August 1973, the appellate court held that only the salary for July, 1973 and August 1973 was in

time. This is because the suit was filed on 26.7.1976.

Learned Counsel for the petitioner argues that the Article under which the claim should be considered in Article 7 of the Limitation Act. That

Article is as follows :

For wages in the case Three years When the wages of any other person. accrue due.

Learned Counsel for the respondent says that a perusal of the plaint suggests that the suit was one for damages and, therefore, Article 55 alone will

apply. Article 55 is as follows:

For compensation For three Where the contract

for the breach of years is broken or (where

any contract,express there are successive

or implied branches). When the not herein

specially provided breach in respect of

for. which the suit is

instituted occurs

(where the breach is

contingent when it

ceases.

I am inclined to hold that only Article 7 is applicable to the facts of the case because though the word damages"" has been used in the plaint, in

substance the suit is for arrears of salary. A reading of the entire plaint shows that it is a case of claim for arrears of salary. Further, I do not think

that there is much difference between the two Articles. Under Article 7, the period of limitation starts running from the date when the wages accrue

due. Under Article 55, compensation for breach of contract, the period of limitation starts running from the date of the breach of contract. It has

been held that in matters of employment, the employee cannot file a suit unless and until the order of dismissal is set aside by a competent authority.

Otherwise, any suit will be dismissed in limine on the ground that his services had been terminated and therefore, the question of payment of salary

would not arise.

The question therefore, is whether the limitation under Article 7 should be reckoned from the date of the order of the District Educational Officer

dated 1.6.1971 or from the date of reinstatement, viz., on 7.8.1973. Though several decisions have been cited before me, I think two decisions of

the Supreme Court settle the issue. In Maimoon Khatun v. State of U.P. (1980)2 S.C.J. 455, the Supreme Court has laid down the law as

follows:

For these reasons, therefore, we are clearly of the opinion that in cases where an employee is dismissed or removed from service and is reinstated

either by the appointing authority or by virtue of the order of dismissal or removal being set aside by a Civil Court the starting point of limitation

would be not the date of the order of dismissal or removal but the date when the right actually accrues, that is to say, the date of the reinstatement,

by the appointing authority where no suit is filed or the date of the decree where a suit is filed and decreed.

In this case, instead of a civil court decree, there is an order of the statutory authority, viz., the District Educational Officer holding that the order of

termination is illegal and the appellant is liable to be reinstated. Therefore, it cannot be disputed that the right to sue accrues from the date of the

order of the District Educational Officer. There is a further elaboration on this question by a Constitution Bench of the Supreme Court of India

comprising of seven Judges. That was in S.S. Rathore Vs. State of Madhya Pradesh, . Though that case related to a suit for declaration that the

order of dismissal was illegal, the principles laid down there certainly apply to a case of a suit for arrears of salary. The Supreme Court was

concerned with Article 58 and the period of three years started running from the date when the right to sue first accrues. Therefore, interpretation

placed on the words ""right to sue first accrues"" can certainly be applied to the Article 7 which also uses the words when the right to sue accrues;

ten in the case of Article 58 where the question was as to when the right to sue first accrues, the Apex Court has pointed out that in service

matters, the cause of action will arise only when the highest authority in the hierarchy of officers passes the order. It would be appropriate to notice

the rationale of the judgment of the Supreme Court, which reads thus:

We are of the view the cause of action shall be taken to arise not from the date of the original adverse order but on the date when the order of the

higher authority where a statutory remedy is provided entertaining the appeal or representation is made and where no such order is made, though

the remedy has been availed of, a six months period from the date of preferring of the appeal or making of the presentation shall be taken to be the

date when cause of action shall be taken to have first arisen. So, however make it clear that this principle may not be applicable when the remedy

availed of has not been provided by law. Repeated unsuccessful representations not provided by law are not governed by this principle.

Applying the said Judgment of the Supreme Court, I am of the opinion that the right to sue accrues only when the appellate authority passed the

order on 17.11.1971 as per Ex.A-2. But this does not result in any benefit to the appellant because the suit was filed only on 26.7.1976. As

pointed out by the appellate court only the salary for July 1973 and seven days in August 1973 are saved because they come within the period of

three years anterior to the suit. In the result, though my finding is that the cause of action arose on 17.11.1971, the judgment and decree of the

lower appellate court does not need any correction. Consequently, the second appeal fails and is dismissed. However, there will be no order as to

cost.