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Judgment
S.D. Jha, J.
This second appeal by Defendants against the judgment and decree dated 8-7-1977, dismissing the first appeal presented by them, passed by the Second Additional District Judge, Ujjain was by order dated 9-2-1978 admitted for final bearing on the following substantial questions of law arising in the appeal:
(1) Whether the lower appellate Court has erred in law in holding that the suit was not barred by limitation ?
(2) Whether the lower appellate Court has erred in not properly construing the provisions of Rule 35 of Gwalior Civil Service Rules ?
The Respondent (hereinafter called, ''the Plaintiff'',) was a NAKEDAR in the Municipal Corporation, Ujjain. On a report lodged by an employee of the Corporation named Malharrao on 3-8-1966, a criminal case was registered and the Plaintiff detained for sometime at the police station. He was, therefore, suspended on 6-8-1966. His prosecution by judgment, Ex. P/2 dated 29-4-1970 resulted in his acquittall and he was reinstated on 9-5-1970. His demand for arrears, difference in subsistance allowance and salary and allowances for the post which he holds not having been satisfied, the Plaintiff filed suit on 21-4-1971 claiming difference of arrears of salary for the period 6-8-1966 to 9-5-1970. The suit was resisted by the Defendants (Appellants before this Court) mainly on the ground that former Gwalior State Civil Servant Service Rules were applicable to employees of the relevant class of the Corporation. The Plaintiff had been suspended under Rule 35 of the Rules. As Plaintiff''s prosecution related to offence unconnected with official duties, as an employee of the Municipal Corporation under Note 4 of Rule 35 of the Rules the Plaintiff was not entitled to arrears claimed. The suit was also resisted on the ground of limitation. The trial Court by its judgment and decree dated 4-2-1976 decreed the Plaintiff''s claim for the period 6-8-1986 to 19-5-1970 for Rs. 4,000/-with costs. The judgment and decree were upheld in appeal by the Additional District.
At the hearing of the appeal, Shri C.M. Mehta learned Counsel submitted that the Plaintiff had himself pleaded that his suspension dated 6 8-1966 was illegal, null and void. Claim, therefore, for arrears of difference of salary presented on 21-4-1971 would be barred by limitation under Article 7 of Limitation Act, 1963. According to him the suit would be governed by Article 7 (Old Article 102) and limitation of three years for filing the suit would begain to run from the dates when wages or salary accrued due. In respect of this argument, Shi C.M. Mehta relied on Union of India (UOI) Vs. P.V. Jagannath Rao, and Kishanlal v. State of M. P. and Ors. 1977 MPWN (I)SN 345 . In these decisions it has been held that starting point of limitation in a suit of arrears of salary is the date when the salary becomes due and declaration by the Court that the dismissal was illegal does not give a fresh cause of action. P. V. Jagannath Rao''s case (supra) show that the High Court had dissented from Madras High Court view in Union of India (UOI) Vs. R. Akbar Sheriff, State of Madras v. Ananthram AIR 1963 Mad. 425 and had preferred the view taken by Punjab High Court in Union of India (UOI) Vs. Ram Nath Chitory, It had also amongst others referred decisions of the Supreme Court in Shri Madhav Laxman Vaikunthe Vs. The State of Mysore, As against above, Shri Pandya learned Counsel for the Plaintiff-Respondent relied on Dewan Shamsher Jang Vs. State of Madhya Pradesh, which also held that the suit by civil servant for the recovery of his salary is governed by Article 102 and in absence of any law or Rule the salary of a civil servant falls due on the first day of every month according to the Gregorian calendar. The decision also held that the Plaintiff was not entitled to no more than what fell due during three years immediately preceding the suit, plus the period for statutory notice. The decision whould appear not to support the Plaintiff Shri Pandya also relied on V.P. Gindroniya v. State of Madhya Pradesh 1970 JLJ SN 67 (Six Judges decision of the Supreme Court) dealing with kinds of suspension known to law and their consequences. The decision is not directly on point of limitation.
Thus not cited by the parties, the parties were put to notice of the Supreme Court decision in Maimoona Khatun and Another Vs. State of Uttar Pradesh and Another, dealing with starting point of limitation under Article 7 of the Limitation Act, 1963 as to claim of arrears of salary on reinstatement of employee. In this decision the Supreme Court following their earlier decision in The State of Madhya Pradesh Vs. The State of Maharashtra and Others, held that the starting point of limitation under Article 7 (Old Article 102) would be the date of reinstatement by the appointing authority where no suit is filed or date of decree where a suit is filed and decreed. The Supreme Court took note of almost all the earlier decisions on the point and in para 20 of the judgment approvved the view of Madras High Court in State of Madras Vs. A.V. Anantharaman,
Shri C.M. Mahta attempted to distinguish the decision urging that the decision would be applicable when there is an order of re-instatement by a Court of law and not to the present case. Clearly Shri Mehta''s attempt to distinguish the decision cannot be accepted as would be seen from finding of the Supreme Court set out in para 22 of the judgment material portion of which is reproduced below:
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 limitatson, 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.
(Emphasis supplied).
In the instant case the Plaintiff without filing a suit was reinstated by the Commissioner of the Municipal Corporation on 9-5-1970. The starting point of limitation would, therefore, be this date and it is not in dispute that computed from this date to the suit would be well within limitation of three years.
The next contention on the second substantial question of law set out above by Shri C.M. Mehta is that note No. 4 of the Rule 35 of the Gwalior Civil Service Rules has not been properly construed by the First Appellate Court. His argument is that under note 4 of the Rules, for supension unconnected with official duties of the employee no salary for the period of suspension is to be paid to the employee even if he by discharged or acquitted. He submitted that arrest and prosecution of the Plaintiff was unconnected with his official duties and was what Shri Mehta called "a private offence" and not what he called "an offeial offence" and therefore, no arrears of salary would be payable to him under the note.
Shri Pandya, however, challenged the finding without having filed a cross-objection of the first Appellate Court that the suspension of the Plaintiff was under Rule 35 of the Rules. He submitted that suspension under the Rules could be ordered only when on the charge of criminal offence the employee had been sent to prison but according to him, the Plaintiff had not been sent to prison at all, therefore, this Rule would not apply to the Plaintiff.
For case of reference Rule 35 of the Gwalior Survice Rules, Sam. 1991 with Note 4 are produced below:
Para 11 of the trial Court judgment shows that the trial Court found that arrest and prosecution of the Plaintiff was connected with the department where the Plaintiff was employed and with his official duties and, therefore, he was entitled to arrears of salary for the suspension period. The first Appllate Court has dealt with the question in para 12 of the judgment, which shows that offence committed by the Plaintiff was connected with the department and his duties. The claim for arrears of salary was decreed because the offence in respect of which the Plaintiff was arrested and prosecuted according to concurrent findings of the Courts below was connected with the department where he was employed and with his official duties. This concurrent finding of a fact could not be interfered with in this second appeal. Once the finding is upheld even accepting Shri Mehta''s interpretation of Note No. 4 which was also accepted by the two Courts below would not help the Appellants.
In view of the finding above dealing with Shri Pandya''s challenge to the finding of the Courts below as to applicability of Rule 35 to suspension of the Plaintiff would appear unnecessary. It would suffice to say that suspension under the Rule could be attracted only when on criminal charge the employee had been sent to prison. From the material on record it does not appear that the Plaintiff was sent to prison. He was only detained at police station and released on bail by the Magistrate the next day. The two Courts below found the suspension of the Plaintiff valid. It is, however, significant that in the memo of appeal in the first substantial question of law proposed by the Appellants themselves the finding of the first Appellate Court as to validity of suspension and its competence was challenged on the ground that the Plaintiff himself has alleged in the plaint that the suspension order passed by the Commissioner was invalid and without authority. Thus, in any view of the matter if the suspension was under Rule 35 of the Rules, the Courts having found as a fact that the offence for which the Plaintiff was arrested and prosecuted being related to his duties and if suspension of the Plaintiff be not under the Rules then in view of the decision of the Supreme Court in V.P. Gindroniya''s case (supra) referred to in judgment of the first appellate Court that in case of suspension when there is no such term in the contract of employment or in the Rules, the employee would be entitled to his remuneration for the period of suspension, if there is no statute or Rule under which it could be withheld, the Plaintiff would be entitled to arrears or salary claimed.
Shri C.M. Mehta also argued that the Municipal Corporation, Ujjain could not be vicariously liable for the act of Malhar Rao in lodging report at the police Station about offence against Plaintiff and he cited number of decisions on vicarious liability. The appeal was not admitted for final hearing on this question of law and the point, therefore, does not require any consideration. The rulings on this point cited by him are, therefore, not mentioned.
The appeal being without merit is dismissed. The Appellants shall bear their costs and pay that of the Respondent. Pleader''s fee according to schedule or certifieate whichever is less. Decree be drawn up accordingly.