SHYAM LAL Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) THIS is a plaintiff's appeal whose claim for a sum of Rs. 31,931.06 P. has been decreed for a sum of Rs. 20,529.06 P, only and has been dismissed for the rest of the amount. But as a counter-claim has been decreed against him in favour of the defendants for a sum of Rs. 20,529.06 P. that is, the amount for which his suit had been decreed, this appeal has been valued at Rs. 31,931.06 P. that is the whole amount for which the original suit was filed. There is a cross objection also to the extent of Rs. 26,239.54 P. praying for the setting aside of the decree passed against the defendants respondents to the extent of Rs. 20,529.06 p. and for interest on the amount for which the counter-claim was decreed by the trial Court amounting to Rs. 5,710.48 P.

(2.) THE plaintiff appellant belonged to the Indian Service of Engineers and was posted in the State of Uttar Pradesh. By an order of the President dated the 17th of April, 1953 he was ordered to be compulsorily retired forthwith. On receiving the communication relating to the order of the retirement of the plaintiff, the Secretary to the Government of Uttar Pradesh directed the Chief Engineer, Irrigation Department under whom the plaintiff appellant was serving to relieve him of his duties immediately and for the communication of the date of relief to the Government and the Accountant General. The plaintiff coming to know about it filed a writ petition in the High Court challenging the order relating to his compulsory retirement. The writ petition was filed on the 24th of April, 1953 and on that very date an interim stay order was issued by the High Court restraining the State of Uttar Pradesh from removing the plaintiff from his post. This stay order was made absolute on the 8th of May, 1953. The copy of that order is Ext. 24 at page 71 of the printed paper book. Shri Kanhaiya Lal Misra, Advocate General who appeared on behalf of the State of Uttar Pradesh made a statement that the State was willing to pay the plaintiff his salary till the decision of the writ petition but was not prepared to take work from him or to allow him to work as Superintending Engineer, the post at which he was working at the time the order of his compulsory retirement was passed. In the circumstances the Court made it clear that the State was not bound to take work from him or to allow him to work as Superintending Engineer during the pendency of the petition but they will pay him the salary month by month as usual till the decision of the writ petition. The writ petition was. however, dismissed on the 1st of October, 1953. The plaintiff filed an appeal against the dismissal on the 13th of October, 1953. On that very day a stay order was obtained from the Supreme Court which was made absolute on the 25th of November, 1953. The order is in following terms: "On hearing the learned counsel on both sides we make the ad interim stay order absolute and direct that the payments made by the Government during the pendency of the appeal (?) in the High Court will continue to be made pending the disposal of this appeal. The petitioner gives his consent that if the appeal is decided against him the money that will be thus paid to him should be deducted from the Provident Fund amount which is due to him" (Vide Ext. A-3 at page 115-116 of the printed paper book). In the meantime, however, the plaintiff had to be continued to be paid his salary as Superintending Engineer in terms of the interim order of the High Court well as of the Supreme Court However the Accountant General would not allow any payment to be made unless the appellant held some post A notification had to be issued creating a temporary post of an Officer on Special Duty attached to the office of the Chief Engineer, Irrigation Department to which post the plaintiff was accredited. He accordingly continued to draw pay as an Officer on Special Duty from the 15th of May, 1953 to the 28th of February, 1954. After the Supreme Court decided the case and dismissed the appeal, further payment to the plaintiff for the post of the Officer on Special Duty was withheld. The plaintiff claims that he remained in service up to the 30th of March, 1954 the date of the dismissal of the appeal by the Supreme Court and as such should be allowed his salary at the rate of Rs. 21507- per mensem from the 1st of March, 1954 to the 30th of March, 1954 which comes to a sum of Rs. 2080.00. The General Provident Fund Account of the plaintiff before the period ending 31st March 1954 stood at Rs. 1,09, 623.00. After the order was passed by the Supreme Court the Government of Uttar Pradesh directed the Accountant General that the order contained in Ext. A-8 at page 132 of the printed paper book already referred to above compulsorily retiring the plaintiff was revived and the plaintiff retired from the 15th of May, 1953 the date on which he ceased to work as Superintending Engineer. It was accordingly ordered that the amount paid to him thereafter at the rate of Rs. 2150.00 under orders of the High Court and the Supreme Court be recovered from him. The plaintiff was accordingly not paid the whole amount of Rupees 1,09,623.00 which stood in his General Provident Fund Account on the 31st of March, 1954 but after deducting a sum of Rupees 21,881.06 P. he was allowed payment of a sum of Rs. 87,741.94 Paise only. He claimed in his suit the recovery of that amount also. In all a suit was filed for a sum of Rs. 31,931.06 Paise made up of the following items;

(3.) THE first point to be considered is as to whether the plaintiff appellant should be deemed to have been compulsorily retired from the 15th of May, 1953 as claimed by the defendants and held by the trial Court or from the 30th of March, 1954 when the appeal was dismissed by the Supreme Court.