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Govinda Patnaik Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtOrissa High Court
Decided On
Judge
Reported in33(1967)CLT1091; (1968)IILLJ326Ori
AppellantGovinda Patnaik
RespondentState of Orissa
Cases ReferredMadhab v. State of Mysore
Excerpt:
.....430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in fact the revenue divisional commissioner in his letter (ex 6/a) dated 27 march 1962 clearly stated that the plaintiff should be treated to be on duty from 21 november 1958 till the post was made vacant......got it only by the test of descent. untill the services are terminated, a person appointed to the post is entitled to his remuneration. the supreme court decision does not militate against this view. the position, as it stands, is that if the plaintiff in fact was appointed to discharge the function of a karji under section 10(5) of the act, he was entitled to his remederation(sic) if his services have not been legally terminated. the learned standing counsel conceded that the services of the plaintiff were not terminated until 1 february 1963. the(sic) than the tahasildar was not allowing him to do his duties despite orders from the superior revenue authorities and the willingness of the plaintiff to do the work. he had, therefore, right to the post and consequently the right to the.....
Judgment:

G.K. Misra, J.

1. Most of the facts are admitted. A chronological chart has been filed by Sri Pal mentioning all important facts. In correct-ness has not been disputed by the learned Standing Counsel. The essential facts, at mentioned therein, are as follows.

2. Under Section 10(5) of the Madras Hereditary Village Offices Act (Madras Act 3 of 1895) hereinafter referred to as the Act (which has been replaced by Orissa Act 12 of 1962) with effect from 1 February 1963), the plain-tiff was appointed in 1935 to discharge the duties of the office of a Karji as the heredatary karji, Kashi Parida, was a minor. Kashi Parida died in 1949. He was succeeded by another minor Karji, Kashi Parida, on 8 July 1950, who also died in 1953. On 22 December 1953 another minor Naran Parida become the karji. Plaintiff was allowed to discharge the duties of the office of the karji while these minors became karjis. In the year 1957 plaintiff remained absent from duty on leave. On 20 November 1958 the tahasildar served a notice (Ex. 2) on the plaintiff asking him to join his post within ten days from the receipt of the letter, failing which he was threatened with punishment. Plaintiff joined the next day on 21 November 1958, but the tahasildar did not allow him to take charge of the office and to do the work. On 6 June 1959 the Revenue Divisional Officer by his letter (Ex. 3) directed the tahasildar to hand over charge to the plaintiff. The tahasildar did not obey this order. The Collector in his letters (Ex. 4) dated 27 August 1959 and (Ex. 4/a) dated 19 April 1960 asked the Revenue Divisional Officer to allow the plaintiff to join his post. It is unnecessary to give some other intermediate facts. Again the Collector by his letter (Ex. 5) dated 5 April 1961 asked the Revenue Divisional Officer to allow the plaintiff to discharge the duties of the office of Karji. In May 1961. the decisions of the Supreme. Court in Dasarath Rammer Rao v. State of Andhra Pradesh A.I.R. 1961 SC 564 was published. The Revenue Department took the view that the provisions under Section 10(5) of the Act was unenforceable. On 29 July 1961 the Collector was of opinion that the plaintiff had no case for continuance in service, but be passed no orders terminating his services. In appeal filed by the plaintiff, the Revenue Divisional Commissioner, by his order (Ex. 6/4) dated 27 March 1962, hold that the tahasildar acted in excess of his jurisdiction and the plaintiff should be treated to be on duty from 31 November 1958 until he was relieved from duty. The Orissa Act 12 of 1962, repealing the Act, came into force on 1 February 1963, and from that day the post of the plaintiff for discharging the duties of a karji was terminated.

3. Plaintiff suit in for recovery of Rs. 1,000 as his salary at the rate of Rs. 20 per month from 21 November 1968 to 31 January 1968. The suit was filed on 10 May 1963.

4. The defence is that the plaintiff was not allowed to join his post as a criminal case and some miscellaneous cases were pending against him and that be was not entitled to arrears of salary as in fact he had done as work. The defendant also asserted that the plaintiff was not appointed to discharge the duties of the office of the karji after the death of Kholi Parida in 1953.

5. The Munsif of Aaka decreed the suit holding that the plaintiff was appointed to discharge the duties of the office of karji under Section 10(5) of the Act and that his appointment and continuance to do the functions of a karji after the death of minor Naran Parida were never disputed until the institution of the suit. He held that the plaintiff was appointed to the post, that he was willing to work, that his services were never terminated and that the suit was not barred by limitation.

6. In appeal the learned Subordinate Judge dismissed the suit. He was of opinion that the various orders of the Collector and the Revenue Divisional Commissioner issuing directions that the plaintiff must be allowed to discharge the duties of the office of the karji were illegal and without jurisdistion and that as in fact the plaintiff did no work, be was not entitled to arrears of salary. According to him the plaintiff had no right to the office and, as such, had no right to the emeluments. Against the appellate order a civil revision and a second appeal have been filed.

7. The first question for consideration is whether a second appeal of a civil revision lies Article 3 of Schedule II of the Provincial Small Cause Courts Act (9 of 1887) is to the effect that a suit concerning an act or order purporting to be done or made by any other officer of the Government in his official capacity is excepted from the cognisable of a Court of Small Cause. Plaintiff was prevented from doing the work by the recalcitrant attitude of the tahasildar who escaped with impunity though he flussed(sic) the orders of the Collector and the Revenue Divisional Commissioner. The acts of the tahasildar and the superior revenue authorities are definitely purported to have been done in their official capacities. Articles 3 therefore directly applies to this case. This suit is execepted from the cognizance of the Cause of Small Causes Section 102. Civil Procedure Code, laying down that no second appeal shall be in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed Rs. 1000, has no application to this case. A second appeal therefore lies. This civil revision is incompetent and is accordingly dismissed.

8. The simple case, advanced by the plaintiff, was that he was appointed under Section 10(5) of the Act to discharge the duties of the office of the karji during the minority of the three successive minors, who were entitled to the post of the karji by inheritance. Section 10(5) of the Act is to the effect that when the person who would otherwise be entitled to an office is a minor, the Collector shall register the minor as the heir of the last holder and appoint some other person qualified under Sub-section (1) to discharge the duties or the office until the person registered as heir, has attained majority or within three years thereafter is qualified under Sub-section (1) to discharge the duties of the office himself, when he shall be appointed thereto. Under Section 10(1), the various qualifications have been enumerated. Sub-section (2) lays down that succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to importible zamindaries in southern India. Section 6(1) of the Act was challenged before the Supreme Court as unconstitutional.

9. That section had a provision that the appointment was to be discriminated on the ground of descent only. Their lordships held that such a provision was unconstitutional, The Supreme Court decision has no bearing on the question in issue. After the pronouncement of the Supreme Court decision, it was open to the State Government to terminate the services of incumbent who had got it only by the test of descent. Untill the services are terminated, a person appointed to the post is entitled to his remuneration. The Supreme Court decision does not militate against this view. The position, as it stands, is that if the plaintiff in fact was appointed to discharge the function of a karji under Section 10(5) of the Act, he was entitled to his remederation(sic) if his services have not been legally terminated. The learned Standing Counsel conceded that the services of the plaintiff were not terminated until 1 February 1963. The(sic) than the tahasildar was not allowing him to do his duties despite orders from the superior revenue authorities and the willingness of the plaintiff to do the work. He had, therefore, right to the post and consequently the right to the emoluments even though in fact he did no work.

10. In S.S. Shetty v. Bharat Nidhi, Ltd. 1957-II L.L.J. 696 their lordships observed as follows at p. 701:

If the contract of employment is for a specific term, the servant would in that event be entitled to damages the amount of which would be measured prima facie and subject to the rule of mitigation in the salary of which the master had deprived him. The servant would then be entitled to the whole of the salary, benefits, etc., which he would have earned had he continued in the employ of the master for the full term of the contract, subject of course to mitigation of damages or way of seeking alternative employment.

In Devendra Pratap Narain Rai Sharma v. State of Utter Pradesh and Ors. 1962-I L.L.J. 266 the same view was taken. At p. 270 their lordships said:. The effect of the decree of the civil suit was that the appellant was never to be deemed to have been lawfully dismissed from service and the order of reinstatement was superfiuous. The effect of the adjudication of the civil Court is to declare test the appellant had been wrongfully prevented from attending to his duties as a public servant. It would not in such a contingency be open to the authority to deprive the public servant of the remuneration which he would have earned had he been permitted to work.

The learned Standing Counsel fairly conceded that he was unable to show any materials on record that the plaintiff was not validly appointed under Section 10(5) of the Act during the relevant period. On the contrary, the various documents, referred to above, indicate that at no stage the revenue authorities questioned that he had no valid appointment. In fact the Revenue Divisional Commissioner in his letter (Ex 6/a) dated 27 March 1962 clearly stated that the plaintiff should be treated to be on duty from 21 November 1958 till the post was made vacant. As the plaintiff was validly appointed, but was prevented from doing his duties, he is entitled to the arrears of salary even without doing any work.

11. The learned Subordinate Judge was of opinion that the orders passed by the Collector and the Revenue Divisional Commissioner directing that the plaintiff should be deemed to be continuing in office from 21 November 1958 onwards, were without jurisdiction. Assuming that those orders were without jurisdiction, the conclusion is not altered. Once plaintiff's appointment to the post is established, he is entitled to the arrears of salary unless the defendant proves that his services were legally terminated.

12. The next question for consideration is whether the suit is barred by limitation. The learned Munsif wrongly decreed the entire claim. The suit was filed on 10 May 1963. Plaintiff is entitled to arrears of salary under Article 102 of the Limitation Act, 1908, which prescribes a period of three years from the date when the wages accrued due. It has now been authoritatively pronounced in Madhab v. State of Mysore : [1962]1SCR886 , that a suit for arrears of salary by Government servant is governed by this article. Plaintiff's services were terminated on 1 February 1963. He is, therefore, entitled to arrears of salary from 10 May 1930 to 1 February 1963 for a period of 2 years 8 months and 21 days. On calculation the claim comes to Rs. 654. Plaintiff is therefore entitled to a decree for this amount. No interest was claimed till the date of the suit. Plaintiff is entitled to pendente lits and future interest at 6 per cent per annum.

13. In the result, the judgment of the learned Subordinate Judge is set aside and the plaintiff's suit is decreed in part. The second appeal is allowed in part with costs throughout and the civil revision is dismissed without costs.


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