F. Dhan v. Union of India — 1984 DIGILAW 346 (PAT)

JUDGMENT : Chaudhary Sia Saran Sinha, J.-Plaintiff Mrs. F. Dhan is the appellant in this First Appeal, Money Suit No.6 of 1967, instituted by her against the Union of India and the Chief Welfare Officer for a decree of Rs.11,000/-, having been dismissed by the trial court. 2. By a letter dated 9.5.1949, issued by Mrs. V. Upadhyaya, Officer-in-charge, Women's welfare Section of Coal Mines Welfare Fund, Women's Section, Pathardih, the plaintiff, along with others, was appointed as a trainee of the fourth batch with effect from 16.1. 1949 in the pay-scale of Rs. 55-3-85-EB-4-1255-130. This letter further stated that the 'sevikas' will be on probation for a period of three months from the date of their appointment vide appointment letter Exhibit 4. According to the plaintiff after the expiry of three months, mentioned in Exhibit 4, the plaintiff became a permanent hand. Exhibit-4/a, dated 9.10.1961, an Office ORDER :no. 316 of 1961, issued by the Chief Welfare Officer (M), Government of India Ministry of Labour & Employment, by which the plaintiff was granted 22 days earned leave with average pay from 15.6.1960 to 6.7.1960 followed by 90 days extra ordinary leave without pay and allowance from 7.7.1960 to 4.10.1960. This office ORDER :further stated that on expiry of 90 days, extra ordinary leave without pay and allowance with effect from 7.7.1960 to 4.10.1960, the plaintiff's services stood automatically terminated with effect from 5.10.1960. The plaintiff alleged that the termination of her services, as evidenced by Exhibit-4/a, was in fact her dismissal front service in violation of the constitutional provisions of Article 311 of the Constitution of India. She made various representations but to no effect. Ultimately, after asserting in paragraph 9 of the plaint that, she has served notice dated 6.12.65 to the defendants under section 80 C. P. C. which was served, she instituted the instant suit claiming Rs. 10,012-00 towards' pay and dearness allowance and Rs. 988.00 as compensation for illegal termination of service without reason by filing a paupar application on 16.12.1966, which was registered as Money Suit No. 6 of 1967 on 21.1.1967, impleading the Union of India. Ministry of Labour and Employment, Government of India. New Delhi and Chief Welfare Officer (M) under Government of India, Ministry of Labour, P. O. Bbuli, District Dhanbad, as defendant nos. 1 and 2, respectively. 3. The defendants contested the suit by filing a written statement. Ministry of Labour and Employment, Government of India. New Delhi and Chief Welfare Officer (M) under Government of India, Ministry of Labour, P. O. Bbuli, District Dhanbad, as defendant nos. 1 and 2, respectively. 3. The defendants contested the suit by filing a written statement. The defence, inter alia, was that the plaintiff continued in her service treating her entire period of service on temporary basis and was never made permanent. While the plaintiff was posted at Raligora Mines Institute, ORDER :s were issued transferring her to Ningha M. P. I. and she was accordingly relieved of her duties at Raligora M.P.I. on 15.6.1960. The intimation sent to the plaintiff regarding the transfer by the Field Worker was not accepted by her. Rather she left the centre bag and baggage on 16.6.1960. In her letter dated 8.7.1960, the plaintiff reported sick and asked for leave upto 25.7.1960. subsequently, she asked for extension of leave up to 20.10.1960. At the time of her leaving Raligora Mines on 16.6.1960, she had to, her credit earned leave for 22 days and leave on half average pay for 220 days. As she was absent without intimation from 16.6.1960 to 19.7.1960, the first intimation dated 8.7.1960 having been received in the office only on 20.7.1960 and continued asking extension of leave, it was not possible to foresee whether' she would resume duty after expiry of the leave asked for. No half pay leave could be granted to her and her absence was treated as earned leave for 22 days which covered her absence upto 4.10.1960. She being a temporary employee, under rule 14 (c) of the Revised Leave Rules, 1933, she was deemed to have resigned after expiry of extra-ordinary leave for 90 days and she ceased to be in Government Employment under the Rules, abovementioned. A plea of limitation was also taken. As regards the notice under section 80 of the Code of Civil Procedure (C.P.C.), the assertion in paragraph-II of the written statement was as follows :- "...the notice u/s 80 C.P.C. is not in accordance with law and is illegal. The plaintiff is put strict proof of service of notice u/s 80 C.P.C. The plaintiff was alleged to be entitled to no relief. 4. The parties adduced evidence, both oral and documentary. The plaintiff is put strict proof of service of notice u/s 80 C.P.C. The plaintiff was alleged to be entitled to no relief. 4. The parties adduced evidence, both oral and documentary. The trial Court held that the notice under section 80 C.P.C., in the instant case, did not comply with the requirements of law and hence the suit must fail on this ground. It held on merits that had the suit been decreed, the plaint would have been entitled to 36 months, pay at the rate of Rs. 148/-per month and nothing more than that, there being evidence about her claim for compensation, for Rs.988/-. pure finding recorded, by the trial Court was that the plaintiff a temporary employee of the Central Government and her services were rightly and legally terminated under Rule 14 (c) of the Revised Leave Rules, above mentioned. This is how the plaintiff has come up to this Court in the instant First Appeal. 5. The following points were urged before us on behalf of the appellant:- (i) that the finding of the trial Court about the notice under section 80 C. P. C. being not in accordance with law is wrong, (ii) that the finding of the trial Court about the plaintiff being a temporary employee is wrong as the trial Court, should have held that she was either a permanent or quasi-permanent employee, (iii) that the termination of the services of the plaintiff under Exhibit-4/a amounted to her removal from service and rule 14 (c) of the Revised Leave Rules is ultra vires, and (iv) that the finding recorded by the trial Court about the plaintiff being entitled to only 36 months' pay in case of her success was wrong. Learned, counsel for the respondents resisted all these, contentions. 6. Coming to point no. 1, one of the two defendants is the Union of India, Ministry of Labour and Employment, Government of, India, New Delhi, and the other is the Chief Welfare Officer (M), under Government of India, Ministry of Labour. Learned, counsel for the respondents resisted all these, contentions. 6. Coming to point no. 1, one of the two defendants is the Union of India, Ministry of Labour and Employment, Government of, India, New Delhi, and the other is the Chief Welfare Officer (M), under Government of India, Ministry of Labour. Section 80 C.P.C. states, inter alia, that no suit shall be instituted against the Government or against a public officer in respect of any act purporting to be one by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered, to or left at the office of- (a) in the case of a suit against the Central Government, except where it relates to a railway. Secretary to that Government ; (b) in the case of a suit against the Central Government, where it relates to a railway, the General Manager of that railway; x x x x x and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall contain a statement that such notice has been so delivered or left. It is well settled by now that notice under section 80 C. P. C. is mandatory and that the terms of this section are imperative. By C. P. C. (Amendment) Act, 1976 (No. 104 of 1976), sub-section (2) and (3) of section 80 C. P. C. have been added. It is well settled by now that notice under section 80 C. P. C. is mandatory and that the terms of this section are imperative. By C. P. C. (Amendment) Act, 1976 (No. 104 of 1976), sub-section (2) and (3) of section 80 C. P. C. have been added. Sub-section (3) of section 80 C.P.C. runs as follows :- "No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1) if in such notice- (a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated." We are not concerned in this case with the contents of the notice as it is not the case of any party that the contents of the notice Exhibit-1 falls short of the requirements of section 80 C.P.C. We are concerned in this case with the appropriate authority specified in sub-section (1) of section 80 C.P.C. While the intention behind sub-section (3) of section 80 C.P.C. is the just claims of a person are not defeated on technical ground if there is substantial compliance of the requirements as to the contents of the notice, the words "at the office of the appropriate authority specified in sub-section (1)" occurring in sub-section (3) (a) of section 80 C. P. C. indicate that the, rigour of the requirements of sub-section (1) as to the authority to whom the notice is to be served has not been relaxed for the simple reason that under the existing system of the working of the Government Departments and the Rules of Executive Business and relaxation about the same would defeat the very purpose of the notice envisaged in section 80 C. P. C. The carton copy of the notice Exhibit-1 is dated 6.7.1965. It is addressed to the Union of India through the Minister of Labour and Employment, Government of India, New Delhi' and not through 'the Secretary to that Government' as envisaged in sub-section (2) of section 80 C.P.C. Obviously therefore•, the notice (Exhibit-1) is not in consonance with the provisions of sub-section (1) of section 80 C. P. C. as rightly found by the trial Court. In support of its decision, the trial Court has relied on two decisions, namely, A.I.R. 1950 Calcutta 426 (Sandhya Trading Co. v. General Manager, Domintion of India) and (ii) A. I.R 1962 Patna 180 (Shamsuddin Waezilddin v. Union of India, representing Eastern Railway). In the case of Sandhya Trading Co. v. General Manager, Dominion of India (supra), the notice sent was addressed to the Secretary Railway Board, Delhi, instead of the General Manager of the Railway concerned and it was held that it was not a good notice in law. In the case of Shamsuddin Waezuddin v. Union of Indian (supra), the plaintiff gave notice under section 80 C. P. C. by registered post to the Secretary to the Union of India, Railway Department, New Delhi. There was an endorsement at the bottom of the notice that the plaintiff had forwarded a copy of the notice to the General Manager, East Indian Railway which did not clearly indicate whether the' notice had been sent to, the General Manager. East Indian Railway, Calcutta, for information or for any particular action to be taken. It was held that there was no sufficient compliance of section 80 (b) C. P. C. and the suit was bound to fail on that ground. It is true that these two decisions relate to the period prior to 1976 when sub-section (3) of section 80 C. P. C. was added. But sub-section (3) of section 80 C. P. C. relates to the contents the notice and it does not touch the requirements of subsection (1) of section 80 C. P. C. as to the appropriate authority to whom the notice is to be sent and served. 7. Learned counsel for the appellant relied on three decisions namely, (i) A.I.R. 1963 Assam 179 (Union of India v. Suraj Bhan Khandelwall). (ii) A.I.R. 1960 SC 1309 (The State of Madras v. C. P. Agencies and another) and (iii) 1984 BBCJ 58 (SC) (Ghanshayam Das and ors v. Dominion of India and on.). 7. Learned counsel for the appellant relied on three decisions namely, (i) A.I.R. 1963 Assam 179 (Union of India v. Suraj Bhan Khandelwall). (ii) A.I.R. 1960 SC 1309 (The State of Madras v. C. P. Agencies and another) and (iii) 1984 BBCJ 58 (SC) (Ghanshayam Das and ors v. Dominion of India and on.). In the case of Union of India v. Suraj Bhan Khandelwal (supra), the notice in question was addressed to the Deputy Chief Commercial Superintendent, a senior responsible officer of the Railways, working in the office of the General Manager. This notice had been sent by post and it was not disputed that the office of the General Manager was a big one and the notice reached the office of the General Manager. In fact, a reply had also been issued thereto by the Deputy Chief Commercial Superintendent on behalf of the Railway. The facts of the instant case are different. The notice in this case was sent to the Minister, Labour & Employment. There is no material to show that the offices of the Minister, Labour & Employment and that of the Secretary to that Department are located at one and the same place. No reply was also, undisputedly, sent to the notice (Exhibit-1) either by the Minister of Labour & Employment or by the Secretary to that Department. In the case of the State of Madras v. C. P. Agencies and another (supra), the matter related to the contents of the notice and not to the addressee. The facts of this case were, therefore, different from the facts of the instant case. Similar was the position in the case of Ghanshyam Das and others v. Dominion of India and ors. (supra). It was a case where there was a contract between Seth Lachman Dass Gupta and the Dominion of India through the Defence Secretary. Certain claims were preferred by Seth Lachman Dass Gupta for which he served a notice on the Dominion of India through the Defence Secretary under section 80 C.P.C. Before Seth Lachman Dass Gupta died, he had received a letter from the Military authorities rejecting his claim. After receipt of this reply, the plaintiffs, who were the sons of Seth Lachman Dass Gupta instituted a suit and a question arose whether the notice given by Seth Lachman Dass Gupta would enured to the benefit of the plaintiffs. After receipt of this reply, the plaintiffs, who were the sons of Seth Lachman Dass Gupta instituted a suit and a question arose whether the notice given by Seth Lachman Dass Gupta would enured to the benefit of the plaintiffs. It was held that if there is identity between the cause of action and the reliefs claimed and the identity of persons who issued the notice, there is substantial compliance with section 80 C. P. C. It was further held that the notice served by Seth Lachman Dass Gupta, undoubtedly, fulfilled the requirements of section 80 C. P. C. in so far as the cause of action and the reliefs claimed are concerned and that this notice enured to the benefit of the plaintiffs. These decisions cannot, therefore, come to the rescue of the appellant. 8. The trial Court observed that there was no suggestion or evidence that the Minister concerned forwarded the notice to the Secretary concerned or that it was delivered to the office of the Secretary of the Ministry to which it related. Exhibit-3 is the postal registration receipt and Exhibit-2 is the acknowledgment. Only two witnesses were examined on behalf of the plaintiff, Bisheshwar Deo (P.W.1) simply proved the writing of N. C. Mallick, Advocate of the plaintiff, on Exhibit-2 and nothing beyond that. Thus, the endorsement of receipt of the notice on Exhibit-2, even if any, has not been proved. No seal of any Post Office is also legible on Exhibit-2 as in the case of Exhibit-2/a which, obviously does not relate to the notice Exhibit-1. Neither P. W. 1 nor P. W. 2, the plaintiff herself, stated a word about the notice being posted by registered post, much less about Exhibit-1 being delivered to or left at the office of the Minister of Labour & Employment. As stated above, there is also no material to show whether the Minister, Labour & Employment, forwarded that notice to the Secretary concerned or even sent any reply to the plaintiff in that connection. No acknowledgment regarding the receipt of the notice by defendant no.2 or anyone of his office has been filed by the plaintiff. As stated above, there is also no material to show whether the Minister, Labour & Employment, forwarded that notice to the Secretary concerned or even sent any reply to the plaintiff in that connection. No acknowledgment regarding the receipt of the notice by defendant no.2 or anyone of his office has been filed by the plaintiff. There is also no oral evidence, worth the name to show that any such notice was delivered to or left at the office of the two defendants in spite of the defendants putting the plaintiff to strict proof of the service of the notice. 9. In view of what has been said and discussed above, in agreement with the trial Court, I hold and find that the notice (Exhibit-1), said to have been served on defendant no. 1, is not in consonance with the mandatory requirements of section 80 C.P.C. and it cannot, therefore, be regarded as legal. I also hold and find that the plaintiff has miserably failed to prove that the said notice was either delivered to or left at the office of any of the two defendants. Thus, the notice, said to have been served on the defendants, did not fulfil the requirements of section C. P. C. and that being so, the plaintiff's suit is bound to fail on this score alone. This point is accordingly decided. 10. In view of the finding recorded above on point no. 1, it is not necessary to decide the other points urged before this Court. However, since these points were mooted at some length, I record my finding on these points. 11. Coming to point no. 2, while the plaintiff claimed to be a permanent employee of the Government of India, according to the defendants, she was a temporary employee. Exhibit-4 is the appointment letter dated 9.5.1949. It shows that the appointment was with effect from 16.1.1949. Paragraph-2 of this appointment letter states that the sevikas will be on probation for a period of three months from the dates of their appointment. It was not the intention behind paragraph-2 of this appointment letter that the appointment was to become permanent automatically on the expiry of the period of three months. The appointment having been made with effect from 16.1.1949 and the letter having been issued on 9.5.1949, the period of three months had expired prior to the issue of that letter. It was not the intention behind paragraph-2 of this appointment letter that the appointment was to become permanent automatically on the expiry of the period of three months. The appointment having been made with effect from 16.1.1949 and the letter having been issued on 9.5.1949, the period of three months had expired prior to the issue of that letter. Jitendra Nath Sanyal (D.W. 3) stated that the plaintiff was a temporary employee and that she was never confirmed and no letter was issued confirming her in service. Jagannath Basudeo Bhave (D. W. 5) has corroborated D. W. 3 on this point and further stated that no permanent post of Sevika was available in the year 1949. Anil Baran Chaudhary (D.W.6) has stated that before the issue of the letter Exhibit-B/1 on 26.11.1964 no one had been confirmed. Exhibit-B/1 shows the confirmation of persons mentioned therein with effect from 1.1.1963 and 1.1.1964. This list does not include the name of the plaintiff. A probationer cannot, after the expiry of probationary period, automatically acquire the status of a permanent member of a service unless he is so confirmed or the rules, under which he is appointed, expressly provide for such a result. No such rule has been pointed out nor has any letter of confirmation been produced. The sole and uncorroborated testimony of P. W. 2, in this respect, is unfit for reliance. In such a situation, the entitlement of the plaintiff to grant of earned leave, which facility is available even to a temporary staff, and the deposit of security by her, which depends on the nature of job to be performed, cannot, by themselves, prove that she was a permanent employee. 12. It was next contended that the plaintiff having been appointed in the year 1949 and she having continued in service more than three years, she should be deemed to have become a quasi permanent employee. No such case has been set up in the plaint nor is there any satisfactory reliable evidence to support any such claim. 13. As noticed by the trial Court, the defendants have also produced unimpeachable documents to prove that the plaintiff was a temporary employee and she continued to be so till the date when her services were terminated. Exhibit-D is her Service Book. It describes the plaintiff as a temporary employee right from the year 1949 till 1960. 13. As noticed by the trial Court, the defendants have also produced unimpeachable documents to prove that the plaintiff was a temporary employee and she continued to be so till the date when her services were terminated. Exhibit-D is her Service Book. It describes the plaintiff as a temporary employee right from the year 1949 till 1960. Even in the increment certificate Exhibit-A/4, the plaintiff's service has been described as temporary. On the materials' available on the record, I, therefore, hold and find that the plaintiff was neither a permanent employee nor a quasi-permanent employee. Rather, in agreement with the trial Court, I find and hold that she was, a temporary employee under the defendants. This point is decided accordingly. 14. Coming to point no. 3, the defendants sought to justify the termination of the services of the plaintiff under Exhibit-4/a on the basis of rule 14(c) of the Revised Leave Rules, 1933 as subsequently amended with retrospective effect, which runs as follows: "Where Government servant who is not in permanent employ or quasi-permanent employ, fails to resume duty on the expiry of the maximum period of extraordinary leave granted to him or where such a Government servant, who is granted a lesser amount of extraordinary leave than the maximum amount admissible, remains absent from duty for any period which together with the extraordinary leave granted exceeds the limit up to which he could have been granted such leave under sub-rule (b), he shall be deemed to have resigned his appointment and shall accordingly cease to be in Government employ". It was not disputed that the Revised Leave Rules, abovementioned, was one of the conditions of service of the plaintiff under the defendants. This rule does not apply to a Central Government servant who is in permanent or quasi-permanent employment. It applies only to those employees whose services are temporary. If a Government Servant has no right to the post as where he is appointed to a post permanent or temporary, either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service, the termination of his employment does not deprive him of any right and cannot, therefore, by itself, be a punishment. If a Government Servant has no right to the post as where he is appointed to a post permanent or temporary, either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service, the termination of his employment does not deprive him of any right and cannot, therefore, by itself, be a punishment. If the Government has, by contract, express or implied, or under the Rules, the right to terminate the employment at any time then such termination in the manner provided by the contract or the Rules is prima facie and per se, not a punishment and does not attract the provisions of Article 311 of the Constitution. The letter Exhibit-4/a evidences termination of services simpliciter as envisaged in rule 14(c) of the Revised Leave Rules. The words "dismissed", "removed" and "reduced in rank" are all used, in a special technical sense. They must be understood in the sense in which they are used in the Civil Service (Classification, Control and Appeal) Rules, where they denote the three major categories of punishments which can be imposed on civil servants. The word 'removal' in Article 311 bas a narrow and technical meaning involving the concepts of arraignment, guilt, stigma and punishment and further debarring of employment under Government service whereas termination does not. It is true that Article 311 of the Constitution, in appropriate circumstances, may come in aid even of a probationer or a temporary employee but it can have application only when it is found that it is a case of "dismissal" or "removal" or 'reduction in rank". Obviously, therefore, if the employer takes any action in excercise of the contractual right or in the excercise of the powers given under the conditions of service rules, it cannot be said that the action has been taken by way of -punishment and Article 311 of the Constitution will have no application. It was not disputed before this Court that, in the facts and circumstance of this case; the action under Rule 14 (c) of the Revised Leave Rules, by the employer, was justified nor, in the facts and circumstances of this case, it could have, been disputed. The plaintiff was posted at Raligora Mines Institute when the ORDER :s were issued transferring her to Ningha M. P. I. She was relieved of her duty at Raligora M. P. I. on 16.5.1960. The plaintiff was posted at Raligora Mines Institute when the ORDER :s were issued transferring her to Ningha M. P. I. She was relieved of her duty at Raligora M. P. I. on 16.5.1960. The intimation sent to the plaintiff regarding the transfer by the Field Worker was not accepted by her. Rather, she left the centre bag and baggage on 16.6.1960. In her letter dated 8.7.1960 she reported sick and asked for leave upto 25.7.1960 and then applied for extension of leave upto 20.10.1960. She was absent without intimation from 16.6.1660 to 19.7.1960. The first intimation dated 8.7.1960 having been received in the office of the defendants only on 20.7.1960. From the attitude adopted by the plaintiff, it was not possible to foresee whether she would resume duty after expiry of the leave asked for. Therefore, there was justification for the defendants for no allowing her half-pay leave due to her. She indicated no intention to resume her duty under the defendants nor did she seek for any declaration from the Court regarding her termination being illegal though she claimed arrear of wages alleging the termination to be illegal. In the facts and circumstances of this case, the termination of her employment under Exhibit-4/a cannot amount to her removal from service so as to attract Article 311 of the Constitution. Learned counsel for the respondents relied, in this connection, on a Full Bench decision of this Court reported in 1984 BBCJ 335 : 1983 PLJR 661 (Bijoy Kumar Bharti and others v. The State of Bihar). Learned counsel for the appellant relied on a decision of this Court reported in 1974 PLJR 382 (Sobhana Das Gupta v. The State of Bihar and another) and contended that the termination of the services of the plaintiff should be deemed to be her removal from service so as to attract Article 311 of the Constitution. Their Lordships, in this case, observed that full and complete guidance is afforded by the decision of the Supreme Court in Moti Ram Deka's case reported in A. I. R. 1964 SC 600 where it was considered whether the termination of services of a permanent railway servant under the rules amounted to his removal under Article 311 (2) of the Constitution of India and further whether the rules aforesaid were invalid. It was held that the termination of the permanent servants tenure which is authorised by the said Rules is no more and no less than their removal from service and Article 311 (2) of the Constitution of India must come into play in respect of such cases. The instant case is not a case of a permanent or quasi-permanent employee. Thus, this decision cannot come to the rescue of the appellant. I thus hold and find that the termination of the services of the plaintiff under rule 14(c) of the Revised Leave Rules was termination simpliciter and not her removal from service. 15. In ORDER :to determine whether the impugned rule is invalid and ultra vires, the pro per test to do is to see whether the rule, by necessary implication, excludes the applicability of Article 311 of the Constitution, if it does so, the rule must be held to be invalid. On the other hand if the rule does not have this effect, it may not be invalid. The contingency contemplated in Rule 14 (c), in a case of termination simpliciter, cannot attract Article 311 of the Constitution. In such a situation, it cannot also be said that rule 14 (c) of the Revised Leave Rules is ultra vires. This point is accordingly decided. 16. Coming to point no. 4, the period for which pay and allowances to the tune of Rs. 10012/-has been claimed in the plaint has not been indicated therein. Even in her evidence, the plaintiff has not stated anything regarding the same, much less is there any material to support her claim for compensation amounting to Rs. 988/-. Learned counsel for the appellant submitted that the amount of Rs. 10012/- was claimed as pay and allowances for the period from 15.5.1960 to 16.12.1966 when the pauper application was filed. The plaintiff was granted earned leave on average pay from 15.6.1960 to 6.7.1960. It appears from Exhibit-4/ that the Chief Welfare Officer had already been advised to draw and remit the leave salary for this period to the plaintiff. In case it has not been remitted, learned counsel for the respondents submitted that it would be remitted to the plaintiff as early as possible. For the period from 7.7.1960 to 4.10.1960, the plaintiff was, granted extraordinary leave and her services were terminated with effect from 5.10.1960. In case it has not been remitted, learned counsel for the respondents submitted that it would be remitted to the plaintiff as early as possible. For the period from 7.7.1960 to 4.10.1960, the plaintiff was, granted extraordinary leave and her services were terminated with effect from 5.10.1960. In such a situation, in view of my finding recorded above, bad the notice under section 80. C.P.C. not stood as a bar to this suit, the plaintiff would have been entitled to average pay far the period of earned leave from 15.6.1960 to 6.7.1960. In paragraph-25 of its JUDGMENT :, the trial Court has observed that even if the suit would have been decreed, obviously, after finding that the notice under section 80. C. P. C. was not invalid, the plaintiff would have been entitled to 36 month's pay at the rate of Rs. 148/- per month. The submission of Sri A. Ghose was that in view of the decision of the Supreme Court reported in A.I.R. 1980 SC 1773 (Maimoona Khatun and another v. State of U. P. and another), the starting point of limitation under Article 102 of the limitation Act of 1908 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. This contention has no force. Termination of the services of the plaintiff being in accordance with law, she cannot be held entitled to any remuneration for the period from 5.10.1960. She being on extraordinary leave without pay for the period from 7.7.1960 to 4.10.1960, she cannot claim arty pay for this period also. The plaintiff of the instant case not having been reinstated by the appointing authority nor she having obtained a decree of her reinstatement by a Court, the decision in the case of Maimoona Khatun and another v. State of U.P. and another (supra) can be of no help to her. This point is accordingly decided. 17. No other evidence, either oral or documentary, than those referred to above, was referred to by any of the parties nor do they take the case of the parties any further and; therefore, it is needless to discuss them. 18. This point is accordingly decided. 17. No other evidence, either oral or documentary, than those referred to above, was referred to by any of the parties nor do they take the case of the parties any further and; therefore, it is needless to discuss them. 18. In view of the finding recorded above regarding Point no.1, it must be held that there is no merit in this appeal which must fail and is accordingly dismissed. In the facts and circumstances of this case, however, there shall be no ORDER :for costs and the parties are directed to bear their own costs of this First Appeal. Let a copy of the decree be sent to the Collector, Hazaribagh-1 for realisation of Court fee payable on the plaint from the plaintiff who was allowed to sue in forma pauperis.