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Allahbad High Court
G.D.SAHGAL,LAKSHMIPRASAD
Shyam Lal - Appellant
Versus
State of U.P., Lucknow - Respondent
Decided On : 03/23/1966
COMPULSORY RETIREMENT - EFFECT OF INTERIM STAY ORDER - REFUND OF SALARY - QUASI CONTRACT - INTEREST.
Fact of the Case:
The plaintiff, an Indian Service of Engineers officer, was compulsorily retired on 17th April 1953. He challenged the order in the High Court and obtained an interim stay order restraining the State from removing him from his post. The stay order was made absolute on 8th May 1953. The plaintiff continued to receive his salary till the writ petition was dismissed on 1st October 1953. He filed an appeal in the Supreme Court and obtained another interim stay order, which was made absolute on 25th November 1953. The Supreme Court dismissed the appeal on 30th March 1954. The State Government directed the Accountant General to recover the salary paid to the plaintiff from 15th May 1953 to 28th February 1954. The plaintiff filed a suit for the recovery of the amount deducted from his Provident Fund and other amounts.
Finding of the Court:
The court held that the plaintiff was compulsorily retired on 15th May 1953, the date on which the stay order was vacated. The interim stay orders granted by the High Court and the Supreme Court were merely interim orders subject to the final result of the litigation and did not mean that the plaintiff continued in service during the period till the Supreme Court decided the appeal. The plaintiff was not entitled to recover any salary after 15th May 1953 and whatever was paid to him thereafter was refundable. However, the amount could not be lawfully deducted from the Provident Fund. The plaintiff was entitled to interest on the Provident Fund amount at the rate of 4% per annum from 1st April 1954 to 31st September 1954 and at the rate of 6% per annum from 1st October 1954 to 15th March 1955. The defendants were entitled to a counter-claim for the amount of salary paid to the plaintiff from 15th May 1953 to 28th February 1954, less the pension paid to him for that period.
Issues: 1. Whether the plaintiff was compulsorily retired on 17th April 1953 or 15th May 1953? 2. Whether the plaintiff was entitled to recover the amount deducted from his Provident Fund? 3. Whether the defendants were entitled to a counter-claim for the amount of salary paid to the plaintiff from 15th May 1953 to 28th February 1954?
Ratio Decidendi: 1. An interim stay order does not mean that the plaintiff continued in service during the period till the final disposal of the case. The plaintiff was compulsorily retired on the date on which the stay order was vacated. 2. The amount deducted from the Provident Fund could not be lawfully deducted. The plaintiff was entitled to interest on the Provident Fund amount at the rate of 4% per annum from 1st April 1954 to 31st September 1954 and at the rate of 6% per annum from 1st October 1954 to 15th March 1955. 3. The defendants were entitled to a counter-claim for the amount of salary paid to the plaintiff from 15th May 1953 to 28th February 1954, less the pension paid to him for that period.
Final Decision: The appeal and cross-objection were dismissed with a slight modification that the cross-claim of the defendants should stand decreed only for an amount of Rs. 20, 529.06 - Rs. 5013/- Rs. 15,516.06 p. instead of Rs. 20,529.06. In the circumstances of the case parties were ordered to bear their own costs in the appeal as well as the cross objection.
SAHGAL, J. :-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
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