MAIMOONA KHATUN AND ANR. v. STATE OF U.P. AND ANR

Citation: [1980] 3 S.C.R. 676

Court: Supreme Court of India

Bench: S. MURTAZA FAZAL ALI, P.S. KAILASAM, A.D. KOSHAL

Case summary

In this c· ·nnection, this Court observed as follows :- "On the question of limitation, he held that the suit would be g verned by Art. It further held that a servant of the Crown in India had the right to maintain a snit for recovery ofarrears ofpay which had become due to him.

Judgment text

MAIMOONA KHATUN AND ANR. v. STATE OF U. P. AND ANR. April 16, 1980 [S. MURTAZA FAZAL ALI, P. s. KAILASAM AND A. D. KosHAL, JI. ] Arrears of pay and allowances consequent to reinstatement in service-Period ofLimitation-The date from which the period should be computed whether date of reinstatement or when the salary become due-Limitation Act 1908 (Act IX o/1908}- t Article 102 (now Article 7 ofthe Act, 1963}-Scope of. APPe11ants are the widow and daughter of one Zamirul Hassan who was employed as a tttbewell technician in the Irrigation Department of U. P~ Govern.. men!. In the year 1954, Zamirul Hassan was posted at Lucknow and was drawing a salary of Rs. ! 10/- per month plus Rs. 30/- as Dearness Allowance. He was granted medical leave from 15th Feb. 1954 to 24th April 1954 after which lie applied for extension of his leave which \Vas however, refused. As directed by the authorities, he reported for duty on 20th April, 1954.

Instead of giving any charge of office, on that day, he was served with notice dated 27th March 1954 terminating bis services with immediate effect on the ground that he had reached the age of superannuation. Sri Hassan challen· ged the said order by a representation to the Chief Engineer Irrigation department. The Superintending Engineer accepted the plea of the employee by his order dated 31st December, 1955 and ordered his reinstatement direct· ing that the intervening period may be treated as leave admissible to him. Hassan was then po )While expounding the law regarding as to when the right to sue actually accrues, this Court observed as follows(l) :- "Three features are to be borne in mind in appreciating the plaintiff's case from the point of view of limitation.

First the plaintiff became entitled to salary for the period September 16, 1943 upto the date of reinstatement on December 12, 1953, only when· pursuant to the decree dated August 30, 1953 there was actual reinstatement of the plaintiff on December 12, 1953..... . On these facts two consequences arise in the present appeal. First, since the plaintiff was under suspension from September 16, 1943 till December 12, 1953 when he was reinstated and again suspended from January 19, 1954 till February 23, 1956 when he was dismissed, his suit on October 6, 1956 is within a period of three years from the date of his reinstatement on December 12, 1953. Second, during the period of suspension he was not entitled to salary under Fundamental Rule 53. Further decision to that effect was taken by the Madhya Pradesh Government on January 28, 1956 under Fundamental Rule 54.

Therefore, the plaintiffs cause of action for salary for the period of suspension did not accrue until he was reinstated on December 12, 1953. The plaintiff's salary accrued only when he was reinstated as a result of the decree setting aside the orders of suspension and not of dismissal. ... The rulings of this Court in Jai Chand Sawhney's case and Sakal Deep's case do not apply to the present appeal because there was (1) [1977] 2 s. c. c. 288. (2) [1970] 3 S. C. R. 222. (3) [1974] 2 S. C. R. 548. M:- M:. KHATUN v. U. P. STATE (Fazal Ali, !. ) 687 no 11spect of any suspension order remaining operative Ull. til the fact of reinstatement pursuant to the decree...... Therefore, there would be no question of salary accruing or accruing due so long . as prder of suspension and dismissal stands. The High Court was ! )<lrrect in the conclusion that the plaintiff's claim for salary acqrμed due only on the order of dismissal dated February 23, 1956 b~ng set aside. " II is, therefore, ma.

nifest from a perusal of the observations made by thi$ Court in the aforesaid case that the plaintiff's salary accrued only Wlten the employee Was reinstated as a result of the decree settiRg aside the order of suspension or dismissal. In that case, the employee was suspended as far back as 16th September 1943 and after an enquiry, the employee was removed from service' on 7th November 1945. The employee filed a suit on the 6th of J;lnlljlry 1949 and claimed his salary from 16th September 1943, the date when he was suspended, up to the date of his reinstatement on December 12, 1953 when the decree was passed. Indeed, if the view taken by the High Court in the instant case was correct, the suit of the employee would have been hopelessly barred by limitation and he could not have got a decree for more than three years from 1949, the date when he filed the suit.

This Court, however, held that ~s the starting point of limitation was not the date of the suit but the date when the removal of the employee was held to be void and he was reinstated, Uie suit was not barred by limitation. We might also mention that this Cpurt also held that under Fundamental Rule 52 of the U, P. Rules, the pay and allowances of a Government servant ceased from the date of dismissal and therefore there was no question of his claiming aey arrears so long as his dismissal or removal stood. The facts of the present case seem to us to be directly covered by the decision rendered by this Court in the aforesaid case. Tl111s, this Court has fully endorsed the view taken by the Madras and the Bombay High Court, referred to above.

It 1'j:ems to us that if we take the view that the right to sue for the arrears of salary accrues from the date when the salary would have T been payable but for the order of dismissal and not from the date when the order of dismissal is set aside by the civil court, it will cause gross and substantial injustice to the employee concerned who having been found by a court of law to have been wrongly dismissed and who in the eye oflaw would have been deemed to be in service, would still be deprived for no fault of his, of the arrears of his salary beyond three years of the suit which, in spite of his best efforts he could not have claimed, until the order of dismissal was declared to be void.

Such a course would in fact place the Government employees in a strange predicament and give an undeserving benefit to the employers who by wrongfully dismissing the employees would be left only with the responsibility of paying them for a period of three years prior to the suit and swallow the entire arrears beyond this period without any legal or moral justification. This aspect does not appear to have been noticed by the courts which have taken the view that the starting point of limitation would be three years from the date of the suit and was for the first time noticed by this Court in State ofMadhya Pradesh v. State of Maharashtra & ors. (supra) which seems to us to have righted a wrong which was long overdue. For these reasons, therefore, we are clearly of the.

opinion that in cases where an employee is dismissed or removed from servico 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 view of the matter, the High Court was in error in modifying . the decree ofthe trial court and the lower Appellate Court and limiting the claim of the appellant to a period of only three years prior to the suit.

In view of the findings given by the courts on facts, which have not been reversed by the High Court, it is manifest that the appellants are entitled to the entire decretal amount claimed by them and for which a decree was granted by the trial court and the lower appellate court. We, therefore, allow this appeal, set aside the judgment and decree of the High Court and restore the judgment and decree of the trial court. The appellant will be entitled to costs throughout and interest at the rate of 6 per cent per annum on the decretal amount from the date of the termination of his service to the date of payment. ; S. R. Appeal allowed.