V D ANGAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is by the original plaintiff who has failed substantially in the District Court. The appeal arises under the following circumstances. The plaintiff was appointed on March 24, 1955 as Medical Officer in charge of Infirmary Dispensary at Dhulia. Over and above his scheduled salary he was entitled to get Rs. 10 per month on account of the loss of private practice. A Departmental inquiry was held against him by the Collector and he dismissed him from service with effect from November 1, 1955, on 31-10-1955. He raised suit No. 10 of 1957 on 2-1-1957 contending that the order was illegal and ineffective and he continued to be in service. This suit was decreed on January 4, 1958. The appeal to the District Court, being Appeal No. 63 of 1958, was dismissed and a second appeal to this High Court, being Second Appeal No. 1126 of 1959, was dismissed on December 4, 1959, was dismissed on December 4, 1959. The plaintiff was reinstated by an order date July 13, 1960. The plaintiff has not even cared to produce the reinstatement order. On September 1, 1960 the plaintiff resigned. Thereafter the plaintiff gave notice, Ex. 21, on September 22, 1960, demanding arrears of his pay. He gave a second notice Ex. 23, on March 7, 1961 in connection with the same. On June 23, 1961, Government passed a resolution at Ex. 33 sanctioning his pay from November 1, 1957 minus such amounts as he was earning during the period in question. Eventually, he was paid a sum of Rs. 2,351. 29 np. for that period which as the receipt Ex. 31 passed by him shows, he accepted under protest. Thereafter he filed the present suit, for arrears of salary upto November 7, 1955. He claimed his salary as on November 7, 1955 until date minus the payment made by the Government.

(2.) IN the trial Court he also made a claim for damages on the ground of mental and bodily suffering, because of the dismissed order and also on the ground of expenses incurred by him in the prosecution of earlier suit. The trial Court decreed his claim to the extent of Rs. 4, 917. 16 np. which included the claim for mental and bodily suffering and towards legal expenses towards prior suit. The State appealed to the District Court. The District Court applied Art. 102 of the Limitation Act and awarded only such part of salary or allowance as fell within three years prior to the date of the suit. It rejected the claim of the plaintiff regarding mental and bodily suffering and also regarding the expenses of the previous trial. The plaintiff appeals and limits his claim now to a sum of Rs. 3, 000/- which Mr. Lalit says, is the arrears claimable by him in respect of the period in question i. e. from November 1, 1955 to the date of reinstatement.

(3.) MR. Vaidya relies on two decisions of this Court. In Smt. Mandodaribai v. State of Bombay, First Appeal No. 430 of 1958, Dt. 17-12-1962 (Bom), a Division Bench, in which I was a member, decided that to a suit Article 102 of the Limitation Act applies and the salary accrues from month to month as and when it became payable. In another case, Laxman Shridhar v. State of Bombay, First Appeal No. 648 of 1957, D/- 31-10-1963 (Bom), again a Division Bench of this Court, where I was a party, decided that such a suit as the present was governed by the provisions of Order 2, Rule 2 of the Civil, Procedure Code. A plaintiff who challenges the order of dismissal as being illegal and void is also bound to ask for arrears of the salary to the date of the suit, and if he has not so asked, the provisions of Order 2, R. 2 of the C. P. C. applied and a second suit for arrears prior to that date would not be competent. We also applied Article 102 and held that salary was recoverable from month to month and only such portion of salary after the earlier suit could be awarded as fell within three years before the date of the second suit.