State of Orissa vs L. Appalaswamy

P.K. Tripathy, J.—Learned Standing Counsel is present on behalf of the appellant. None appears for the respondent. Hence the respondent is set ex parte. Appeal is heard ex parte in absence of the respondent and the judgment is as follows.

It is the case of the plaintiff/respondent that he was initially appointed as a Ministerial Staff in September, 1927 under the Government of Madras. On formation of the province of Orissa his service was transferred to the province of Orissa with effect from 1.4.1936 and that service continued under the State of Orissa until the date of his irregular retirement on 24.8.1961, because under the erstwhile employer his period of retirement would have been on completion of sixty years of age, but under the State of Orissa he was made to retire on 24.8.1961 on completion of 55 years of age. The Finance Department, under several Circulars including that of Exts. A and B, recognized its mistake and also wanted to compensate such irregularly retired persons. In view of that the plaintiff-respondent made correspondences with the State for counting his service period till 24.8.1966 and to grant him the arrear salary and other retirement benefits accordingly. When the defendant-appellant did not accede to his correspondences and requests and kept the matter pending, therefore, ultimately he issued notice u/s 80 of the CPC on 5.8.1978 and instituted the suit claiming for recovery of Rs. 22, 943.29 paise (Rupees twenty two thousand nine hundred forty three and paise twenty nine only) with future interest. Plaintiff-respondent appended the schedule showing the mode of calculation of the aforesaid claimed amount and it appears that towards the arrear entitlement he made a claim of Rs. 14,503.23 paise (Rupees fourteen thousand five hundred three and paise twenty three) and interest on that amount with effect from 7.1.1973 and 31.10.1978 (five years nine months and twenty five days) at Rs. 8.440.06 paise (Rupees eight thousand four hundred forty and paise six).

The defendant/appellant contested the suit not disputing to the fact relating to the manner of appointment and retirement of the plaintiff. However, it contested to the claim of the plaintiff on the ground that the relevant Circulars of the Finance Department have no applicability to entertain the claim of the plaintiff. The defendant also contended that plaintiff is not entitled to the pendente lite interest, that the Court at Berhampur has no jurisdiction because plaintiff retired from service at Bhubaneswar and that suit is barred by law of limitation.

On the basis of the pleadings of the parties and their examination under Order X, Rule 1, CPC four issues were framed to adjudicate the dispute. Those issues are:

"Issues

Whether the plaintiff is entitled to the suit amount of Rs. 22,943.29 paise ?

Whether this Court has jurisdiction to try the suit ?

Whether the court-fee paid is sufficient? and

To what other relief plaintiff is entitled ?"

In course of hearing of the suit, plaintiff examined himself as the solitary witness from his side and relied on number of documents, which were marked as Exts. 1 to 30. Out of the same Ext. 1 is the office order of the Executive Engineer, Hirakud relating to his retirement on attaining the age of 55 years and Ext. 27 is the Certificate regarding non-employment and Ext. 28, the report of the Accountant General relating to pension of the plaintiff. Rest of the documents are correspondences in connection with the claims of the plaintiff of the defendant, who only proved the documents, which are marked as Exts. A and B. Out of them Ext. A is the letter from the Under Secretary to Government in Irrigation & Power Department, dated 19.4.1980, in which copy of Finance Department Memo No. 43126(32)-F. Pen.38/78, dated 20.9.1972 was quoted. Ext. B is the Resolution from the Finance Department bearing No. Pen/10/78/48048/F, dated 1.9.1978.

On consideration of the claim of the plaintiff, the plea of the defendant and the evidence on record, Learned Sub-ordinate Judge recorded the finding that age of superannuation of the plaintiff should have been at the age of 60 years. His retirement at the age of 55 years amounts to irregular retirement and therefore he entitled to the protection granted by the Finance Department''s Memo No. 29551, dated 7.7.1972, which has been referred to in Ext. A stipulating the service benefits to such irregularly retired employees. He also found that Ext. B gives further additional benefit to the employees of the plaintiff''s category and therefore the plaintiff is entitled to a decree for Rs. 14,503.23 paise towards arrear salary. Learned Sub-ordinate Judge further held that the claim of interest of Rs. 8,440.06 paise having been specifically contended in the schedule appended to the plaint, defendant did not dispute to the correctness of the same and therefore plaintiff is entitled to that interest too. Recording such finding Learned Sub-ordinate Judge decided the other three issues in favour of the plaintiff and granted the decree for the claimed amount along with future interest @ 6% per annum on Rs. 14,503.23 paise till the date of realization.

When the facts relating to employment and premature retirement is the admitted case, Learned Standing Counsel argues that the Court below committed blunder by not framing an issue on limitation and not recording a finding on that issue. On perusal of the record it is seen that defendant-respondent has taken such a plea, but no such issue was framed. It also appears on record that after settlement of issues and before hearing of the suit or till the judgment was delivered in the suit, defendant never insisted for framing of an issue on limitation or to consider that as an issue. Apart from that, it appears from the plaints as well as the series of documents relied on by the plaintiff that after the Government wanted to rectify its mistake by issuing Circular in the year 1972-73 to grant benefit to the employees retired irregularly and prematuredly plaintiff made correspondences for payment of his arrear salary and that process was pursued by him, but the Head of the Office and the Head of the Department did not decide the case till the date of issue of notice u/s 80, CPC. Under such circumstance, the claim of the plaintiff cannot be regarded as barred by taw of limitation. Above all, in Exts. A and B defendant has accepted such prematured retirement as irregular and to compensate them by providing arrear salary under certain condition and in the written-statement defendant has also admitted about the claim of the plaintiff to a limited extent. For the aforesaid reasons this Court finds no reason to dismiss plaintiff''s suit on the ground of limitation. Therefore, even if the Trial Court did not specifically record a finding, this Court after hearing the appellant finds that the suit was not barred by law of limitation.

Learned Standing Counsel also argues that, according to the schedule in the plaint plaintiff was under employment of different persons/organizations after his irregular retirement on 24.8.1961 and therefore, he was only entitled to the salary for the period during which he was not under employment and the Finance Department''s Circular, Ext. A is clear on that respect. Accordingly he argues that plaintiff was not entitled to the arrear salary for the entire five years minus the emoluments he earned during temporary employment under other employers.

On perusal of the schedule of the plaint, it is seen that plaintiff honestly stated about his employment under different employees for certain periods and the payment received thereof during the relevant employments. He has also calculated as to what would have been his entitlement if he would have been allowed to continue in Government service till the age of sixty years and he has deducted the amount he has claimed towards the arrear salary. In the written statement that calculation of the plaintiff was not challenged by the defendant. No plea was raised at that stage that the plaintiff should be deprived of receiving the differential amount for the period underemployment under other employers. Under such circumstances when that issue needed factual evidence so as to find out justifiability in the claim vis-a-vis exclusion of the period of employment, this Court finds that in the absence of any plea or evidence it may not be proper for this Court to renew that chapter at this stage, that is to say after lapse of two decades. If the State Government in its wisdom as the model employer would have verified from its record about such irregular retirement and have calculated the dues and settled that after taking a decision to make such payment as per the resolutions, Exts. A and B, then perhaps persons like plaintiff would not have much grievance against the State or to make a claim in the manner he made in this case by calculating the differential amount. A person retired from the service is entitled to pension irrespective of the fact that whether he continues on further employment in any private organization or under a private employer. Similarly, if the plaintiff would not have been made to prematuredly retired at the age of 55 years, then during the further period of five years of service not only he would have been entitled to the salary package but also the increments and other benefits which were being provided by the State Government from time to time. But, for the prematured retirement that plaintiff was deprived of such benefits. At the same time, for keeping himself engaged if he undertook some employment, in the given facts and circumstances, this Court is not inclined to deprived him of the differential arrear salary. As I have already noted earlier, if the defendant would have come with a specific plea and proper evidence, then that could have been appropriately considered with due reference to Exts. A and B. But, when there is lack of pleading and evidence from the defendant, this Court finds no reason to interfere with the decree under challenge.

In course of argument, Learned Standing Counsel states that claim of interest from 7.1.1973 to 31.10.1978 amounting Rs. 8,440.06 paise is legally not admissible to the plaintiff and that aspect was not at all considered by the Court below. In that respect I see that the Trial Court declined to consider such a submission of the defendant oh the ground that defendant did not challenge to that aspect in the written-statement. On a reference to Paragraph-11 of the written-statement it is seen that the defendant has raised that plea in the following manner:

"11. The defendants are not liable to pay Rs. 14,503.23 as salary and Rs. 8,440.06 towards interest claimed by plaintiff or for the period from 25.8.61 to 23.8.1996 as the plaintiff has already drawn his salary, pension, gratuity, etc., as admissible to him by the date of his retirement."

It appears from the above quoted averments that such plea has been taken evasively and that to there is no corroborating evidence adduced to disentitle the plaintiff from such interest. Above all, even that contention is not raised as a ground of attack in the appeal memo. It is true that while scrutinizing the decree under challenge the Appellate Court can go into that question in the First Appeal, but because of the aforesaid facts and circumstances and the fact that a retired old person has been deprived of the benefit notwithstanding his relentless efforts for last about 30 years after retirement, I am not inclined to interfere with that decree towards pendente lite interest.

For the reasons indicated above and since no other contention is raised on behalf of the appellant-defendant, I do not find any merit in the appeal and the same is dismissed.