Andhra HC (Pre-Telangana)
Osmania University Rep. By Its ... vs Mohammed Rahmat Ali Humayun on 20 June, 1996
Equivalent citations: 1997(2)ALT159
Author: B.S. Raikote
Bench: B.S. Raikote
ORDER Lingaraja Rath, J.
1. The defendant in the suit, Osmania University is the appellant against a confirming judgment decreeing the plaintiff-employee's suit for recovery of arrears. The respondent filed O.S. No. 2325 of 1974 in the IV Assistant Judge, City Civil Court at Hyderabad claiming relief of declaration of his date of birth being 9-12-1918 instead of 9-12-1914 as recorded in his Service Book and for mandatory injunction against retiring him on the basis of treating the earlier date as his date of birth. Though he lost the suit both in the trial Court and in the first appellate Court, yet he succeeded in this Court in S.A. No. 765 of 1976 with the Court decreeing the suit as prayed for. That judgment was delivered on 10-8-1978. Pursuant to the judgment a communication, Ex. A-8 was made by the University to the respondent showing him to have superannuated on 1-1-1979. The respondent was earlier treated as having retired on 1-1-1975 i.e. on the attaining of 60 years from 9-12-1914 rounded upto the the last date of the retiring month.
2. The respondent filed O.S. No. 1127 of 1979, the suit out of which the present appeal arises, in the Court of the I Additional Judge, City Civil Court, Hyderabad claiming arrears of pay from 1-4-1975 till 31-12-1978. That was so since in the earlier suit he had secured an order of injunction by virtue of which he had continued in service upto 31-3-1975 and had been paid till then. In the present suit he claimed the dues from 1-4-1975 to 31-12-1978 i.e., the date prior to his retirement. The suit was contested by the appellant substantially on the ground of it being not maintainable being hit by the provisions of Order II, Rule 2 of C.P.C. and also to be barred by limitation. The defence having been rejected by the trial Court as well as the learned single Judge, the present appeal has been preferred.
3. The main contention advanced before us is that on the basis of Order II, Rule 2 of C.P.C. which enjoins that the plaintiff in a suit is to include in it the whole of the claim to which he is entitled in respect of a cause of action. It is the argument that since the respondent could have claimed also for arrears of pay in the earlier suit, but did not do so, the suit has to be thrown out. It is also urged that the suit is governed by Article 7 of the First Schedule of the Limitation Act which prescribes the limitation as three years from the date the wages accrued due for which reason the respondent's claim for arrears of salary from 1-4-1975 is not maintainable.
4. The learned single Judge took the view, placing reliance on a decision in "State of M.P. v. State of Maharashtra", that the cause of action for the second suit did not arise until the superannuation was set at naught and hence that a part of the cause of action did not arise when the suit was instituted on the earlier occasion for which Order II, Rule 2 would have no application. He also held that the wages accrued due to the respondent only from 10-8-1978 when the judgment in the S.A. No. 765 of 1976 was delivered.
5. After hearing the learned counsel at length we are persuaded to agree with the views expressed by the learned single Judge. No doubt the respondent, in the earlier suit, did not seek the relief of setting aside of the superannuation, but, such a relief could not have been claimed by him as the suit was filed prior to the superannuation only seeking a mandatory injunction not to effect superannuation. The cause of action for the suit was refusal by the appellant to treat his date of birth as 9-12-1918. Hence, appropriately the suit was filed only claiming the relief that was then available to him i.e. declaration of his correct date of birth and an injunction not to superannuate him wrongly. Superannuation actually effected later on was a subsequent cause of action for which the respondent could have filed a separate suit to quash it. That relief did not form part of the claim of the earlier suit. Such a suit to set aside the superannuation was entitled to have been filed on any day till the last date of limitation of that cause of action. That being so, no fault can be found with the respondent for having not included such a relief in the earlier suit by way of amendment as the principle of Order II, Rule 2 would be applicable only to the whole of the claim as exists on the date the suit is filed. We must hence hold that the suit was not barred by Order II, Rule 2 of C.P.C.
6. The suit was also within limitation having been filed on 14-11-1979 i.e. within three years both of the judgment in the S.A. No. 765 of 1976 as also of the superannuation on 1-1-1979. No doubt the respondent never claimed specifically for the relief of setting aside of the superannuation which had taken place earlier on 1-1-1975, but we do not think that that affects the relief claimed now in any manner. It is well settled that superannuation of an employee is an automatic process on attaining the age of superannuation and takes place even without any express order being passed. That being so, once this court declared the correct date of birth of the respondent as 9-12-1918 and also granted the injunction not to retire him on the basis of his date of birth as 9-12-1914, it could not be said that the superannuation actually effected on 1-1-1975 was still subsisting for the simple reason that on 1-1-1975 the respondent had not reached the age of superannuation and hence his superannuation could not take place. A communication of an employee having superannuated is merely a formal affair of telling him that he has reached the age of superannuation for which he no longer continues in the cadre of employment. The severance of status as master and employee happens not because of the communication made but because of the reaching of the age of superannuation. We hence hold that the respondent never retired on 1-1-1975 and was retired only on 1-1-1979 as was indeed the communication made to him later on by the appellant-University.
7. Unanimity of opinion is that the provision of the Limitation Act as regards suits for recovery of arrears dues is governed by the Article 7 of the First Schedule of the Limitation Act, 1963, corresponding to Article 102 of the old Limitation Act. It is not necessary here to dilate upon the question. But the question is as to when can the wages of a person be said to have accrued due for the purpose of starting of the limitation. Whatever controversies might have been existing earlier, the question seems to have been clinched by the Apex Court in the decision in "State of M.P. v. State of Maharashtra" (1 supra) wherein their Lordships, referring to the facts of that case held.
"35. The original order of suspension on 16th September, 1943 as well as the original dismissal dated 7 November, 1945 was declared to be illegal by the decree dated 30 August, 1953. Therefore, when the plaintiff was reinstated on 12 December 1953 it is then that the plaintiff's claim for salary accrued due. This salary was again suspended from 19 January, 1954. Dismissal on 23 February, 1956 was at a time when the plaintiff was still under suspension. The order of suspension does not put an end to his service. Suspension merely suspends the claim to salary. During suspension there is suspension allowance. See Khem Chand v. Union of India where this Court said that the real effect of the order of suspension is that though he continues to be a member of the service he is not permitted to work and is paid only subsistence allowance which is less than his salary. Under Fundamental Rule 52 the pay and allowance of a Government Servant who is dismissed or removed from service, cease from the date of his dismissal or removal. Therefore, there would be no question of salary accruing or accruing due so long as orders of suspension and dismissal stand. The High Court was correct in the conclusion that the plaintiff's claim for salary accrued due only on the order of dismissal dated 23 February, 1956 being set aside."
The wages of the respondent hence accrued due only when the judgment was delivered on 10-8-1978. The pay due to him from 1-4-1975 did not accrue due until the decision came in the second appeal judgment. The limitation hence would start only from 10-8-1978 and the suit, having been filed on 14-11-1979, was competent from the point of view of limitation. The respondent thus is entitled to the wages from 1-4-1975 to 31-12-1978.
8. In the result, we do not find any merit in this appeal which is dismissed with costs throughout.