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1991 DIGILAW 926 (MAD)

Vasuki Ammal v. R. Joseph

1991-12-19

KANAKARAJ

body1991
Judgment :- The plaintiff is the appellant before me. She filed a suit for recovery of a Rs.6326.62 being the arrears of salary payable to her. The facts leading to the said suit as follows: The appellant/plaintiff was appointed as a Secondary Grade teacher 7.10.1968. On 21.1.1971 her services were terminated. Against the said termination service, the appellant filed an appeal to the District Educational Officer. By an order 1.6.1971, exhibited as A-1, the termination was set aside and there was a direction reinstate the appellant in service. Against the said order of the District Educational the respondent School filed an appeal to the Chief Educational Officer. By an order 17.11.1971 (Ex.A-2) the order of the District Educational Officer dated 1.6.1971 confirmed. Thereafter, there seems to have been some representations to the Director School Education which were rejected on the ground that no further appeal was maintainable before the Director of School Education. Therefore, in effect, the final order departmental proceedings was the order of the Chief Educational Officer dated 17.11.1971. Though the appellant was making representations ultimately she was reinstated only 7.8.1973. After adjusting certain payments, she laid a claim for Rs.6326.62 on 26.7.1976 being the arrears of salary for the period 21.1.1971 to 7.8.1973. The defence respondent was that three months salary was received in full quit of the claim of the and in any event, the suit was barred by limitation. The trial court decreed the prayed for. On appeal, the decree has been modified restricting the decree only for month of July, 1973 and for seven days in August, 1973. According to the appellate the claim for the earlier months was barred by limitation. The appellate court held that cause of action arises from the date of the order of reinstatement made by the Educational Officer on 1.6.1971. The salary for the month of July, 1973 being payable 1st of August 1973, the appellate court held that only the salary for July, 1973 and 1973 was in time. This is because the suit was filed on 26.7.1976. 2. Learned counsel for the petitioner argues that the Article under which the claim should considered in Art.7 of the Limitation Act. That Article is as follows: Learned counsel for the respondent says that a perusal of the plaint suggests that was one for damages and, therefore, Art.55 alone will apply. This is because the suit was filed on 26.7.1976. 2. Learned counsel for the petitioner argues that the Article under which the claim should considered in Art.7 of the Limitation Act. That Article is as follows: Learned counsel for the respondent says that a perusal of the plaint suggests that was one for damages and, therefore, Art.55 alone will apply. Art.55 is as follows: I am inclined to hold that only Art.7 is applicable to the facts of the case because though word damages” has been used in the plaint, in substance the suit is for arrears of reading of the entire plaint shows that it is a case of claim for arrears of salary. Further, not think that there is much difference between the two Articles. Under Art.7, the limitation starts running from the date when the wages accrue due. Under compensation for breach of contract, the period of limitation starts running from the the breach of contract. It has been held that in matters of employment, the employee file a suit unless and until the order of dismissal is set aside by a competent Otherwise, any suit will be dismissed in limine on the ground that his services terminated and therefore, the question of payment of salary would not arise. 3. The question therefore, is whether the limitation under Art.7 should be reckoned date of the order of the District Educational Officer dated 1.6.1971 or from the reinstatement, viz., on 7.8.1973. Though several decisions have been cited before think two decisions of the Supreme Court settle the issue. 3. The question therefore, is whether the limitation under Art.7 should be reckoned date of the order of the District Educational Officer dated 1.6.1971 or from the reinstatement, viz., on 7.8.1973. Though several decisions have been cited before think two decisions of the Supreme Court settle the issue. In Maimoon Khatun v. U.P., (1980)2 S.C.J. 455, the Supreme Court has laid down the law as follows: “For these reasons, therefore, we are clearly of the opinion that in cases where an is dismissed or removed from service and is reinstated either by the appointing authority by virtue of the order of dismissal or removal being set aside by a Civil Court the point of limitation would be not the date of the order of dismissal or removal but when the right actually accrues, that is to say, the date of the reinstatement, appointing authority where no suit is filed or the date of the decree where a suit is decreed.” In this case, instead of a civil court decree, there is an order of the statutory authority, the District Educational Officer holding that the order of termination is illegal appellant is liable to be reinstated. Therefore, it cannot be disputed that the right accrues from the date of the order of the District Educational Officer. There is elaboration on this question by a Constitution Bench of the Supreme Court comprising of seven Judges. That was in S.S.Rathors v. State of M.P., (1989)4 S.C.C. Though that case related to a suit for declaration that the order of dismissal was illegal, principles laid down there certainly apply to a case of a suit for arrears of salary. Supreme Court was concerned with Art.58 and the period of three years started running the date when the right to sue first accrues. Therefore, interpretation placed on the “right to sue first accrues” can certainly be applied to the Art.7 which also uses the when the right to sue accrues. Even in the case of Art.58 where the question was as the right to sue first accrues, the Apex Court has pointed out that in service matters, cause of action will arise only when the highest authority in the hierarchy of officers the order. Even in the case of Art.58 where the question was as the right to sue first accrues, the Apex Court has pointed out that in service matters, cause of action will arise only when the highest authority in the hierarchy of officers the order. It would be appropriate to notice the rationale of the judgment of the Court, which reads thus: “We are of the view the cause of action shall be taken to arise not from the date original adverse order but on the date when the order of the higher authority statutory remedy is provided entertaining the appeal or representation is made and such order is made, though the remedy has been availed of, a six months period date of preferring of the appeal or making of the presentation shall be taken to be when cause of action shall be taken to have first arisen. So, however make it clear principle may. not be applicable when the remedy availed of has not been provided Repeated unsuccessful representations not provided by law are not governed principle.” 4. Applying the said Judgment of the Supreme Court, I am of the opinion that the sue accrues only when the appellate authority passed the order on 17.11.1971 as per Ex.A-2. But this does not result in any benefit appellant because the suit was filed only on 26.7.1976. As pointed out by the appellate only the salary for July 1973 and seven days in August 1973 are saved because they within the period of three years anterior to the suit. In the result, though my finding the cause of action arose on 17.11.1971, the judgment and decree of the lower court does not need any correction. Consequently, the second appeal fails and is However, there will be no order as to costs. Appeal dismissed.