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The Commissioner and anr. Vs. S. Nithyanantham - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberSecond Appeal (MD) No.902 of 2006
Judge
AppellantThe Commissioner and anr.
RespondentS. Nithyanantham
Excerpt:
ex.a.4 is the respondent/plaintiff's lawyer's notice dated 27/12/2001 addressed to the appellants/defendants, wherein the respondent/plaintiff has claimed a sum of rs.33,035/- towards the salary etc. the respondent/plaintiff has also issued a lawyer's notice ex.a.4 dated 27/12/2001 addressed to the appellants/defendants. the second appellant/second defendant has passed an order ex.b.1 dated 13/3/2002 to the effect that the temporary suspension period of the respondent/plaintiff will be treated as leave on loss of pay. also, he has issued ex.a.4 lawyer's notice dated 27/12/2001......and resultantly, dismissed the suit with costs'.5. being aggrieved against the judgment and decree passed by the trial court in o.s.no.204 of 2002 dated 3/3/2003, the respondent/plaintiff has filed a.s.no.123 of 2003 on the file of the first appellate court viz., additional district judge (fast track court no.i), thanjavur, as an aggrieved person. the first appellate court viz., the additional district judge (fast track court no.i), thanjavur, has allowed the appeal in a.s.no.123 of 2003 in part by directing the appellants/defendants to pay a sum of rs.26,912/- towards the salary and ex-gratia balance amount to be paid to the respondent/plaintiff together with proportionate costs. further, three months time has been granted from 11/8/2004 viz., the date of judgment in a.s.no.123.....
Judgment:

1. The Appellants/Defendants have filed the present Second Appeal before this Court as against the Judgment and Decree dated 11/8/2004 in A.S.No.123 of 2003 passed by the Learned Additional District Judge (Fast Track Court No.I), Thanjavur in reversing the Judgment and Decree dated 3/3/2003 in O.S.No.204 of 2002 passed by the Learned District Munsif, Thiruvaiyaru.

2. The First Appellate Court viz., the Additional District Judge (Fast Track Court No.I), Thanjavur, while allowing the appeal in part, has among other things observed in the Judgment in A.S.No.123 of 2003 to the effect that as per Ex.A.3 letter dated 5/5/1998, the Appellants (Respondents/Defendants) has to pay a sum of Rs.26,912/- to the Respondent/Plaintiff in respect of the salary and ex-gratia arrears together with proportionate costs and three months time has been given for making the said payment, thereby, set aside the Judgment and Decree of the trial Court in O.S.No.204 of 2002 dated 3/3/2003.

3. Earlier, in the trial Court, in the main suit, 1 to 3 issues have been framed for trial. On behalf of the Respondent/Plaintiff, witness P.W.1 has been examined and Exs.A.1 to A.10 have been marked. On the side of the Appellants/Defendants, witness D.W.1 has been examined and Ex.B.1 has been marked.

4. The trial Court, on an appreciation of oral and documentary evidence on record, has come to a resultant conclusion in the main suit that 'the Respondent/Plaintiff cannot claim the salary and ex-gratia amount for the period that the Respondent/Plaintiff has been in temporary suspension based on Ex.B.1 and further observed that, the suit has been filed on 19/9/1992 and the same has not been filed within a period of three years i.e., from 13/1/1998 to 13/1/2001 and resultantly, dismissed the suit with costs'.

5. Being aggrieved against the Judgment and Decree passed by the trial Court in O.S.No.204 of 2002 dated 3/3/2003, the Respondent/Plaintiff has filed A.S.No.123 of 2003 on the file of the First Appellate Court viz., Additional District Judge (Fast Track Court No.I), Thanjavur, as an aggrieved person. The First Appellate Court viz., the Additional District Judge (Fast Track Court No.I), Thanjavur, has allowed the appeal in A.S.No.123 of 2003 in part by directing the Appellants/Defendants to pay a sum of Rs.26,912/- towards the salary and ex-gratia balance amount to be paid to the Respondent/Plaintiff together with proportionate costs. Further, three months time has been granted from 11/8/2004 viz., the date of Judgment in A.S.No.123 of 2003 for the payment of the amount by the Appellants/Defendants.

6. Feeling aggrieved against the Judgment and Decree of the First Appellate Court in A.S.No.123 of 2003 viz., the First Additional District Judge (Fast Track Court No.I), Thanjavur dated 11/8/2004 in allowing the Appeal in part, the Appellants/Defendants have filed the present Second Appeal before this Court.

7. At the time of admission of the Second Appeal, the following substantial questions of law have been framed by this Court for determination.

(i). Whether the Lower Appellate Court right in holding that the suit is not barred by Limitation?

(ii). Whether the Lower Appellate Court correct in deciding the issue of declaration in favour of the Plaintiff that he is entitled to arrears of salary for the period from 1995 to 1998?

(iii). Whether the Lower Appellate Court failed to duly consider the Ex.A.1?

(iv). Whether the Lower Appellate Court correct in holding that the second respondent in the appeal admitted to pay the amount in letter Ex.A.3?

8. THE CONTENTIONS, DISCUSSIONS AND FINDING ON POINT Nos. (i) to (iv):- The Learned Special Government Pleader for the Appellants/Defendants submits that the First Appellate Court viz., the learned Additional District Judge (Fast Track Court No.I), Thanjavur, has failed to appreciate the fact that the suit is barred by limitation and the plea of limitation has been accepted by the trial Court, which fact has not been taken note of by the First Appellate Court.

9. It is the contention of the Learned Special Government Pleader for the Appellants/Defendants that the Civil Court has no jurisdiction to entertain the suit claiming arrears of salary and further, the First Appellate Court should have dismissed the suit as not maintainable, both on Law and on facts.

10. Advancing his arguments, the Learned Special Government Pleader for the Appellants projects a plea that Ex.A.3 dated 5/5/1998 is only an order of the Commissioner of Thiruvaiyaru Panchayat Union and the said letter is only recommendatory in nature to the Second Appellant/Second Defendant.

11. Expatiating his submissions, the Learned Special Government Pleader for the Appellants submits that Ex.B.1 dated 13/3/2002 is an order passed by the Second Appellant/Second Defendant (competent authority) and as such, the Respondent/Plaintiff is not entitled to receive the salary for temporary suspension period which has been directed to be considered as leave on Loss of pay.

12. According to the Learned Special Government Pleader for the Appellants that the earlier suit O.S.No.262 of 1995 has been decreed on 17/6/1997 and therefore, the present suit O.S.No.204 of 2002 on the file of the trial Court should have been filed on or before 16/6/2002, but the same has been filed in the year 2002 and therefore,the suit O.S.No.204 of 2002 is barred by limitation.

13. In response, it is the contention of the Learned counsel for the Respondent/Plaintiff that the Respondent/Plaintiff has been placed on suspension on 20/7/1995 as per proceedings in Na.Ka.No.4367/95/A 9 dated 20/7/1995 on the basis that he has not been present in the Noon Meal Centre, at the time of inspection and further, he has not been maintaining proper accounts. Therefore, the Respondent/Plaintiff has filed a suit O.S.No.262 of 1995 on the file of the trial Court seeking for the relief of an order of suspension dated 20/7/1995 is void and illegal and consequently, prayed for the relief of permanent injunction restraining the Defendants from disturbing his services as Noon Meal Organiser. The said suit has been decreed on 17/6/1997.

14. Added further, the learned counsel for the Respondent/Plaintiff brings it to the notice of this Court that even though, O.S.No.262 of 1995 filed by the Respondent/Plaintiff has been decreed as early as on 17/6/1997 as seen from Ex.A.1 certified copy of the said decree, yet the Respondent/Plaintiff has been given the salary only from February 1998, after several request being made to the effect that, as such the Respondent/Plaintiff is entitled to receive the salary for the period from July 1995 to January 1998.

15. The Respondent/Plaintiff has filed the present suit in O.S.No.202 of 1995 on the file of the trial Court, seeking the relief of recovery of amount due to him and he has restricted his claim for interest at 12% p.a., from the date of plaint till the date of plaint.

16. In the plaint, the Respondent/Plaintiff though has averred that he is entitled to claim a sum of Rs.33,035/- but has restricted him claim to the extent of Rs.30,000/- together with interest being paid to him at the rate of 12% p.a., from the date of plaint till the date of realisation together with costs.

17. The First Appellant/First Defendant filed the written statement (adopted by the Second Appellant/Second Defendant), wherein it is mentioned that the Respondent/Plaintiff in the decree in O.S.No.262 of 1995 has not sought the relief of salary arrears from the date of his suspension till the date of his reinstatement and when such a plea has not been made by the Respondent/Plaintiff in the earlier suit, then it is not open to the Respondent/Plaintiff to make an arrears of salary claim in O.S.No.204 of 2002 on the file of the trial Court, wherein a restricted claim has been made for Rs.30,000/-.

18. Also, the Appellants have relied on Ex.B.1 order dated 13/3/2002 passed by the Second Appellant/Second Defendant to the Regional Development Officer, Thiruvaiyaru, wherein it is stated that the temporary suspension period of the Respondent/Plaintiff will be treated as leave without salary and for that period, the outstanding amount will not be paid. Therefore, the Respondent/Plaintiff is estopped from making the arrears of salary claim in the present suit O.S.No.204 of 2002 on the file of the trial Court.

19. In short, it is the stand taken by the Appellants/Defendants in the written statement that for the period, the Respondent/Plaintiff has not worked, then no salary can be paid and the salary arrears from 20/7/1995 till 21/8/1998 along with ex gratia amount increment increase are all barred by limitation. Also, a plea has been taken in the written statement that the suit is barred by limitation.

20. A perusal of Ex.A.1 certified copy of decree dated 17/6/1997 in O.S.No.262 of 1995 on the file of the learned District Munsif, Thiruvaiyaru, shows that the Respondent/Plaintiff has obtained the relief of declaration that the suspension order in Na.Ka.No. 4367/95/A 9 dated 20/7/1995 passed by the Second Appellant/Second Defendant is null and void and also got a consequential relief of permanent injunction that he need not be disturbed in his job as Noon Meal Organiser. In Ex.A.2 order, the Second Appellant/Second Defendant, has revoked the suspension of the Respondent/Plaintiff and appointed him in the same job.

21. A perusal of Ex.A.2 proceedings dated 13/1/1998 of the Second Appellant/Second Defendant shows that for the temporary suspension period, the salary, grant amount and ex-gratia amounts will be paid later, after obtaining the order of the Director of Rural Development.

22. In Ex.A.3 letter dated 5/5/1992 of the Commissioner Panchayat Union addressed to the Rural Development Officer, Chennai has stated that the Respondent/Plaintiff has made a application claiming a sum of Rs.26,912/- and hence, for disbursing the said amount, a proper permission order is requested to be passed.

23. Ex.A.4 is the Respondent/Plaintiff's Lawyer's notice dated 27/12/2001 addressed to the Appellants/Defendants, wherein the Respondent/Plaintiff has claimed a sum of Rs.33,035/- towards the salary etc.

24. In Ex.A.7 letter dated 9/1/2002 of the Panchayat Union, Thiruvaiyaru addressed to the Rural Development Director, Saidapet, Chennai 15 has stated that the Respondent/Plaintiff has made an application for payment of a sum of Rs.33,035/- and therefore, for granting the said sum, a proper order has been requested to be passed.

25. In Ex.A.8 letter dated 18/2/2002 of the Commissioner of the Panchayat Union addressed to the Rural Development Director, Chennai 15 has prayed for sanction order in respect of outstanding amount of Rs.33,035/- is directed to be paid to the Respondent/Plaintiff.

26. Ex.B.1 is the letter dated 13/3/2002 of the Second Appellant/Second Defendant addressed to the Regional Development Officer, Thiruvaiyaru, wherein it is mentioned that the temporary suspension period of the Respondent/Plaintiff will be treated as leave on loss of pay and for the said period, the outstanding amount cannot be paid.

27. It is not in dispute that the Respondent/Plaintiff has been temporarily suspended when he has been serving as a Village Noon Meal Scheme Organiser on 20/7/1995. The Respondent/Plaintiff has filed O.S.No.262 of 1995, seeking the relief that his temporary suspension order is a null and void one and further, he has prayed for the relief of permanent injunction. Both the reliefs have been granted by the trial Court as seen from Ex.A.1 certified copy of the decree dated 17/6/1997 in O.S.No.262 of 1995.

28. As per Ex.A.2, the Respondent/Plaintiff has been permitted to join in the same job as Noon Meal Organiser from 13/1/1998. Therefore, he has presented a petition before the Commissioner, Thiruvaiyaru Panchayat Union praying for salary in respect of his temporary suspension.

29. In Exs.A7 and A.8 letters, the Respondent/Plaintiff has claimed commission amounts, etc., apart from the amount claimed by him in Ex.A.3 letter.

30. The First Appellate Court viz., the Learned I Additional District Judge (Fast Track Court No.I), Thanjavur has awarded a sum of Rs.26,912/- being the salary as well as the ex-gratia amount and allowed the Appeal in part together with costs.

31. It is to be noted that an employee under suspension is still an employee. As he is subjected to restrictions, so also he is entitled to certain benefits.

32. When a suspended employee is reinstated to duty, an employer has to decide and order as to

(a). What Pay and Allowances the employee is to get for the period he has been placed under suspension?

(b). Whether or not the period of suspension shall be treated as duty as per Fundamental Rules?

33. The Fundamental Rules enjoins a duty to act in accordance with the basic concept of justice and fair play. Also, in M.GOPALKRISHNA NAIDU Vs. STATE OF MADHYA PRADESH reported in AIR 1968 SC - 240, the Honourable Supreme Court has held that an order with regard to Pay and Allowances is not always a consequential order nor is such order a continuation of departmental proceeding taken against the employee.

34. In V.P.GINDRONIYA Vs. STATE OF MADHYA PRADESH reported in AIR 1970 SC - 1494, the Honourable Supreme Court has held that As the Contract of Employment is subsisting during the suspension, the employee is therefore, entitled to full Pay and Allowances for the period which must be paid to him, after reinstatement. Therefore, for the period, an employee has been placed under suspension (or for any period of pay) if full pay is not paid to the employee, the order for such less pay must follow show cause, etc.

35. In STATE OF PUNJAB AND OTHERS Vs. SHAMBHU NATH SINGLA AND OTHERS reported in (1996) 1 SUPREME COURT CASES - 296, the Honourable Supreme Court, in para 2 of its judgment, held thus:-

These appeals by special leave arise from the order dated 8/8/1991 of the Division Bench of the Punjab and Haryana High Court directing the reinstatement of the first respondent pending the criminal prosecution. Since it is now admitted across the Bar that the first respondent had been discharged by the criminal court for want of proper sanction, he was reinstated in the service in January 1988. Consequently, he is entitled to full salary and allowances for the period during which he was kept under suspension.

36. To apply the Principle of Estoppel, there must be an allegation and evidence to establish that 'A' made a representation to 'B' acting thereupon be altered his position to his prejudice as per the decision BABURAM V. BASDEO reported in AIR 1982 ALLAHABAD- 414, at special page No.418. Certainity is essential to all Estoppels.

37. As far as the present case is concerned, the sum of Rs.26,912/- claimed by the Respondent/Plaintiff has been admitted by the First Appellant/First Defendant, but the said amount will have to be paid after obtaining sanction order from the Director of the Rural Development Department. This has also admitted by the Second Appellant/Second Defendant. In the present case, the Second Appellant/Second Defendant has issued Ex.B.1 order dated 13/3/2002 (without their being any order passed by the Rural Development Department Director) to the effect that the outstanding amount for the temporary suspension period will be treated as leave on 'Loss of Pay'.

38. A perusal of Ex.B.1 letter of the Collector dated 13/3/2002 shows that in the said letter, there is no reference of the Rural Development Department Directors letter. The Respondent/Plaintiff has also issued a lawyer's notice Ex.A.4 dated 27/12/2001 addressed to the Appellants/Defendants. When the concerned authorities have prayed for sanction order being passed for the amount of Rs.26,912/- and when the Respondent/Plaintiff has been given the legitimate expectation that he will be paid the salary in respect of the temporary suspension period, then at a later point of time, it is not open to the Second Appellant/Second Defendant to pass Ex.B.1 order dated 13/3/2002 to the effect that temporary suspension period of the Respondent/Plaintiff will be treated as leave on loss of pay. Moreover, when the Respondent/Plaintiff has already obtained a decree in O.S.No.262 of 1995 dated 17/6/1997 as seen from Ex.A.1 where the suspension order of the Respondent/Plaintiff dated 20/7/1995 has been declared to be null and void by a competent Civil Court. Further, when the Respondent/Plaintiff has been reappointed in the same place (after suspension order being revoked), then it is not open to the Appellants/Defendants to approbate and reprobate in the matter in issue. As a matter of fact, the Appellants/Defendants are estopped in contending that as per Ex.B.1 order dated 13/3/2002 passed by the Second Appellant/Second Defendant, the temporary suspension period of the Respondent/Plaintiff will be treated as 'Leave on Loss of Pay'.

39. Apart from the above, the decree in O.S.No.262 of 1995 dated 17/6/1997 has become conclusive final and binding between the parties. A perusal of Ex.A.1 Decree in O.S.No.262 of 1995 dated 17/6/1997 shows that the Appellants/Defendants (in Second Appeal before this Court) are figured as Defendants in the said suit. No appeal has been filed as against the Judgment and Decree dated 17/6/1997 passed in O.S.No.262 of 1995. Therefore, the Appellants/Defendants (in Second Appeal) are parties to the decree in O.S.No.262 of 1995 on the file of the trial Court and hence the said decree is final conclusive and binding between the inter se parties.

40. In the instant case, the Respondent/Plaintiff/Employee's position is vindicated by the decree in O.S. No.262 of 1995 dated 17/6/1997 and his suspension has been null and void. As such, he is entitled to full wages for the suspension period, as opined by this Court. Therefore, this Court come to an inevitable conclusion that the Respondent/Plaintiff is entitled to claim a sum of Rs.26,912/- from the Appellants/Defendants. Since the said amount has not been paid by the Appellants/Defendants to the Respondent/Plaintiff, this Court directs the Appellants/Defendants on the basis of equity, fair play, justice and good conscience to pay the said sum of Rs.26,912/- together with interest at the rate of 6% p.a., from Ex.A.3 order dated 5/5/1998 of the First Appellant/First Defendant till the date of realisation together with costs.

41. Coming to the plea of limitation, it is to be pointed out that the Respondent/Plaintiff has filed O.S.No.204 of 2002 on the file of the trial Court on 7/8/2002. The Second Appellant/Second Defendant has passed an order Ex.B.1 dated 13/3/2002 to the effect that the temporary suspension period of the Respondent/Plaintiff will be treated as leave on Loss of Pay. Before that, Ex.A.3 order dated 5/5/1998 has been passed by Thiruvaiyaru Panchayat Union Commissioner, the Respondent/Plaintiff has been claiming the salary amount due to him, etc. Also, he has issued Ex.A.4 lawyer's notice dated 27/12/2001. Even though, the Respondent/Plaintiff has already obtained a Decree on 17/6/1997 in O.S.No.262 of 1995 on the file of the trial Court, yet when he has made a claim for salary during the suspension period etc., the authorities concerned have prayed for sanction order being passed from their higher ups as seen from the letters filed in the suit. Long after the passing of Decree in O.S.No.262 of 1995 dated 17/6/1997 as seen from Ex.A.1, the Appellants/Defendants have come out with a plea of umbrage as per Ex.B.1 order dated 13/3/2002 of the Second Appellant/Second Defendant to the effect that during the period of suspension of the Respondent/Plaintiff that the period will be treated as leave on loss of pay. Such a stand taken by the Appellants/Defendants contrary to the Judgment and Decree in O.S.No.262 of 1995 as per Ex.A.1 dated 17/6/1997 cannot stand a moment scrutiny in the eye of law. Therefore, the said order is of no avail to the Appellants. Further more, the said Ex.B.1 order dated 13/3/2002 passed by the Second Appellant/Second Defendant is unsustainable in the eye of Law.

42. In the light of the aforesaid qualitative and quantitative discussions and on consideration of the entire gamut of the matter, this Court comes to an inevitable conclusion that the First Appellate Court is right in coming to the conclusion that the suit is not barred by limitation and further, the First Appellate Court is correct in deciding the issue of declaration in favour of the Respondent/Plaintiff that he is entitled to the arrears of salary for the period from 1995 - 1998 and it cannot be said that the First Appellate Court has failed to duly consider Ex.A.1 certified copy of the decree dated 17/6/1997 in O.S.No.262 of 1995 and also that the First Appellate Court is correct in holding that the Second Respondent in the appeal has admitted to pay the amount in Ex.A.3 letter dated 5/5/1998. Accordingly, the substantial questions of law (i) to (iv) are answered against the Appellants/Defendants.

43. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. The Appellants/Defendants are directed to pay a sum of Rs.26,912/- (Rupees twenty six thousand nine hundred and twelve only) to the Respondent/Plaintiff together with interest at 6% p.a., from 5/5/1998 till the date of realisation together with proportionate costs. Time for payment is three months from the date of receipt of a copy of this Judgment. Consequently, the connected Miscellaneous Petition is also dismissed.


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