K M SUBRAMANIAM Vs. STATE OF MADRAS

JUDGEMENT

(1.) THIS appeal comes before us under the Letters Patent from the judgment of Kailasam J. who dismissed the second appeal but granted leave.

(2.) THE appellant was a Senior Inspector in the Co-operative Department on a salary of Rs. 106/- per mensem. On 16th October 1952 certain charges were framed against him with the result, he reverted to the lower post of the Junior Inspector with effect from 24th November 1952 with a pay of Rs. 79 per mensem as a punishment. The appellant successfully contested the legality of this order in O. S. 153 of 1954 on the file of the court of the District Munsiff, Tiruchirapalli who gave a declaration that the order of punishment reverting the appellant was illegal. Thereafter the appellant brought the suit out of which this appeal before us arises for recovery of a sum of Rs. 5943. 01 as arrears of salary. The first two courts as well as Kailasam J. have all agreed that the claim was not well founded.

(3.) THE order of reversion was dated 24th November 1952. The appellant was granted leave with pay upto 28th December 1952. The period from 29th December 1952 to 24th April 1954 was also coveted by leave granted to the appellant but without pay. From 25th April 1954 till 11th October 1955 the date of the declaratory order decree, he stayed away from duty without leave. On 24th November 1955 he was asked to join duty which he did on 1st December 1955. The trial court made a distinction between suspension and reduction in rank and considered that in the case of the latter, there was no deprivation of the appellant's office so that he was not justified in wilfully slaying away from duty. The first appellate court, while agreeing with the trial court in denying the claim, expressed itself slightly differently, viz. , the appellant did not stay away from duty as a protest against the illegal order of reversion. Kailasam J. did not decide the question though he posited whether the appellant who had been illegally reverted to a lower post, was entitled to his pay on the ground that he had not been permitted to work in his post. In his view it was not necessary to decide that question because he found from the record that the appellant did not stay out as a protest against his reversion. The learned Judge also noted that the appellant was willing to join only if the authorities reviewed his case favourably, pending the suit, and his plea that he was illegally prevented from discharging his duties could not be accepted and his claim for remuneration during that period should be rejected.