1. This appeal comes before us under the Letters Patent from the judgment of Kailasam J. who dismissed the second appeal but granted leave.
2. The appellant was a Senior Inspector in the Co-operative Department on a salary of Rs. 106/- per mensem. On 16th October 1952 certain charges were framed against him with the result, he reverted to the lower post of the Junior Inspector with effect from 24th November 1952 with a pay of Rs. 79 per mensem as a punishment. The appellant successfully contested the legality of this order in O.S. 153 of 1954 on the file of the court of the District Munsiff, Tiruchirapalli who gave a declaration that the order of punishment reverting the appellant was illegal. Thereafter the appellant brought the suit out of which this appeal before us arises for recovery of a sum of Rs. 5943.01 as arrears of salary. The first two courts as well as Kailasam J. have all agreed that the claim was not well founded.
3. The order of reversion was dated 24th November 1952. The appellant was granted leave with pay upto 28th December 1952. The period from 29th December 1952 to 24th April 1954 was also coveted by leave granted to the appellant but without pay. From 25th April 1954 till 11th October 1955 the date of the declaratory order decree, he stayed away from duty without leave. On 24th November 1955 he was asked to join duty which he did on 1st December 1955. The trial court made a distinction between suspension and reduction in rank and considered that in the case of the latter, there was no deprivation of the appellant's office so that he was not justified in wilfully slaying away from duty. The first appellate court, while agreeing with the trial court in denying the claim, expressed itself slightly differently, viz., the appellant did not stay away from duty as a protest against the illegal order of reversion. Kailasam J. did not decide the question though he posited whether the appellant who had been illegally reverted to a lower post, was entitled to his pay on the ground that he had not been permitted to work in his post. In his view it was not necessary to decide that question because he found from the record that the appellant did not stay out as a protest against his reversion. The learned Judge also noted that the appellant was willing to join only if the authorities reviewed his case favourably, pending the suit, and his plea that he was illegally prevented from discharging his duties could not be accepted and his claim for remuneration during that period should be rejected.
4. In our opinion, to the facts we have narrated, Fundamental Rule 73 will have no application. That postulates the absence of a Government servant from duty without leave in respect of a post he is holding or to which he is entitled. The claim of the appellant should therefore be considered apart from that rule. The period of the appellant's absence falls under two categories, one covered by leave without pay and the other absence without leave. So far as the first category it concerned, we are inclined to think that inasmuch as he applied for leave on loss of pay and he had the benefit of it, he cannot be permitted to claim salary for that period. It may be that the motive for taking leave was that he did not desire to serve in a lower post and that he was questioning the legality of his reversion. But, we do not think that the motive has any relevance, and can in any way derogate from the factum that the appellant himself of his own volition wanted leave on loss of pay which was granted. But the second period, in our view, stands on a different footing. He absented himself without taking leave. Though he did not convey to the department that he did so as a protest, it was obvious that that would have been the reason for not joining duty. He had instituted the suit which was pending disposal, and, eventually he succeeded in getting a declaration that the order was illegal. That, of course, should have effect from the date of his reversion. It would follow that the appellant had a right to the post of a senior inspector and was entitled to insist that he must be permitted to serve in that capacity. But the Department by reason of the reversion order, would naturally not allow him to function as a Senior Inspector but would expect him to serve in lower post. We are of opinion that the Department in doing so had to bear the risk of the order of reversion being set aside as illegal, in which event, the liability to salary of the appellant for the period covered by the illegal reversion order would arise. We can see no conceivable reason for denying relief to the appellant for the second period of his absence, which was justified.
5. For the respondent, our attention has been invited to Nohiriaram v. Union of India : 1SCR923 to support an argument that even though the reversion order was declared to be illegal on a subsequent date the appellant was not justified in absenting himself without authority before that event and disobeying the order of reversion and in not joining the duty in the lower post. We do not think that the citation supports the proposition. That case was decided on different facts. The finding in that case was that the employee improperly absented himself and for that reason he was not entitled to payment of salary for the period of his absence. He had obtained a declaration in a suit which was set aside in appeal, the effect of which is that his absence during the period in question was unjustified. In the instant case, before us the position is just the opposite, for the appellant obtained a decree declaring that his reversion was illegal and from the inception, he having established his stand he was justified in absenting himself, because it should be assumed, in the circumstances, that he was prevented from serving in the higher post to which he was entitled.
6. We allow the appeal in part and decree the suit for payment of the salary and allowances attached to the post of Senior Inspector which he should have been allowed to hold for the period from 25th April 1954 to 30th November 1955. The appeal as well as the suit will however stand dismissed in respect of the claim for the period anterior to 25th April, 1954. The appellant will be entitled to proportionate costs throughout. The appellant having sued in forma pauperis be liable to pay court-fee due at all stages.