Punjab-Haryana High Court
State Of Punjab And Ors. vs Banarsi Dass on 24 April, 1996
Equivalent citations: (1996)113PLR631
JUDGMENT G.C. Garg, J.
1. This revision is directed against the order dated 8.12.1994 of the executing court. By the impugned order the decree holder, respondent herein was held entitled to arrears of salary from 1.2.1969 onwards in the pay scale of Sub Inspector as revised from time to time, with increments till the date of his retirement i.e. 31.5.1984. The executing court also granted interest at the rate of 12% per annum from the date of order till payment.
2. The plaintiff-respondent filed the suit on 25.8.1981 with an application to sue as an indigent person. The application was granted and the suit was registered on 29.5.1984. The suit was filed for the recovery of Rs. 11482.80 as arrears of three years preceeding the date of suit by treating order dated 1.6.1961 passed by the Deputy Registrar, Co-operative Societies Patiala removing the plaintiff from service, as nonest, with a further prayer that he continues to be in service as if the order of removal was never passed. The suit was decreed on 17.5.1985 and the operative part of the relief granted reads as under:-
"In view of my findings on the issues discussed above, plaintiff succeeds and his suit is decreed against the defendants with costs for the recovery of Rs. 11482.80 and it is declared that order No. 111 dated 1.6.1961 passed by the Deputy Registrar, Co-operative Societies, Patiala, removing him from service is non-existent in the eyes of law and he continues in service as if this order of removal has never been passed and that he is entitled to all rights, benefits and previleges, which have accrued or likely to accrue."
3. Appeal preferred by the State of Punjab against the judgment and decree of the trial court was dismissed by learned Additinal District Judge, Patiala vide judgment and decree date 24.1.1989. Objection that the suit was barred by time was also rejected.
4. In para 8 of the plaint, it was stated thus :-
"that every month when the plaintiff does not receive his salary, cause of action accrues to him. Therefore, he is entitled to Rs. 11482.80 Ps. treating the aforesaid order of removal as non-existent in the eyes of law as arrears of pay and allowances precedings the suit."
5. Further appeal of the State was dismissed by the High Court.
6. Some amounts were paid to the plaintiff, but he did not feel satisfy. He consequently filed execution application out of which this revision has arisen.
7. In the execution, the plaintiff claimed arrears of his salary from the date of his removal from service till the date of retirement on 31.5.1984. He also claimed promotion to the post of Inspector from the date one Kapoor Singh a person junior to him, was promoted as Inspector. Claim for arrears of salary was contested. It was also stated that the case of the plaintiff for promotion was considered but he was not found fit vide order dated 3.9.1991. The execution court framed various issues and the decree holder was held entitled to arrears of salary from 1.2.1969 onwards in the pay scale of Sub Inspector as revised from time to time increments which he would have earned had he not been out of service due to the illegal order of the department. Apart from the above, the decree holder was also held entitled to interest on the arrears of salary from 1.2.1969 to 31.5.1984 at the rate of 12% per annum from the date of the order viz. 8.12.1994 till payment. Hence this revision by the State.
8. During the pendency of the revision petition, Civil Misc. 13526/C. II of 1995 was moved by the decree holder-respondent. This application has been moved perhaps to scuttle the right of the State Government to get the order dated 8.12.1994 set aside, by which order the executing court had held that respondent entitled to some reliefs under the decree. In this behalf it may be noticed that the decree holder after the passing of the order dated 8.12.1994 by the executing court made a statement before it on 4.3.1995 that execution application may be dismissed as withdrawn being partly satisfied with liberty to the decree holder to take out execution in case the amount is not paid in accordance with the order dated 8.12.1994. Accordingly the execution application was consigned to the record room.
9. On that very day or immediately thereafter the decree holder moved another execution application seeking execution of the order dated 8.12.1994 passed by the executing court in the earlier execution application. The State has a right to challenge the order and get it set aside in revision as there is no other' forum available to it to challenge the order under revision. Simply because of the dismissal/consignment of the execution application, revision petition cannot be dismissed as has been prayed in the Civil Misc. application. Civil Misc. in hand is consequently dismissed.
10. On merits, it may be noticed that the court passing the decree did not grant interest at all. In State of Punjab and Ors. v. Krishan Dayal Sharma, AIR 1990 SC 2177, the decree did not contain any order or direction for the payment of interest on the amount which was payable to the decree holder consequent to the declaration made by the court in a suit by a Government employee claiming promotion and consequent benefits. Interest was also not claimed in the suit. It was held by the Supreme Court that it was not open to the executing court to award interest, it being bound by the terms of the decree. It could not add or alter the decree on its notion of fairness or justice. It thus took the view that the executing court acted in excess of jurisdiction in awarding interest to the decree holder and set aside the order of the executing court while allowing the appeal of the State. To the same effect is the view of the Division Bench of this Court in The State of Punjab v. Inspector Sham Nath, (1992-2)102 P.L.R. 654. Reliance placed on Abhinash Chandra Gautam, (since deceased) through its L.Rs.) 1983(3) S.L.R. 284 and Special Leave Petition 11389 of 1986 decided on 6.2.1990 (State of Punjab v. Ram Swarup Safat), to support the view of the executing court in the matter of allowing interest is of no assistance to the learned counsel for the respondent. In Abhinash Chandra Gautam's case (supra), interest was granted in main proceedings and in the Special Leave Petition, the Supreme Court refused to interfere in exercise of jurisdiction under Article 136 of the Constitution of India. The order granting interest in execution is thus clearly in excess of jurisdiction.
11. After the execution application was consigned to the record room by order dated 4.3.1995, the decree holder filed another execution application seeking execution of the order dated 8.12.1994 passed by the executing court, Learned counsel for the decree holder to support the action of the decree holder to execute an order of the executing court placed reliance on State of Punjab v. Krishan Mohan Sarvia, 1980 (1) SLR 222. It is indeed always open to the decree holder to take out execution of a decree or revive the execution application which had been consigned to the record room. It is the decree which is executable and not an order of the executing court. There is no dispute with the proposition of law laid down in Krishan Mohan Sarvia's case (supra) wherein it was held that the only way to implement a declaratory decree for reinstatement is to execute the decree and the executing court could direct the State to pay the arrears of salary to the decree holder. It was no where held that the order of the executing court is independently executable by moving an execution application to the executing court. The mode adopted by the decree holder is not known to law and the executing court is proceeding, with that application illegally and in excess of its jurisdiction and any order passed therein cannot but be termed as without jurisdiction.
12. Learned counsel for the respondent placing reliance on State of Punjab v. Krishan Mohan Sarvia, 1980(1) S.L.R. 222. Maimoona Khatun and Anr. v. State of U.P. and Anr., 1980(3) S.L.R. 455, Ram Labaya v. Municipal Corporation. Amritsar, (1993-3)105 P.L.R. 362 and Sadhu Singh v. State of Pb. and Anr., 1993(1) R.S.J. 455, submitted that once an order of termination is set aside, the only way to implement the said order is to grant wages to the employee from the date of his termination to the date of his reinstatement, learned executing court in this case has done nothing except that it has ordered the payment of salary to the employee from 1969 to the date of his reinstatement and, therefore, it cannot be said that the order of the executing court is in excess of jurisdiction or without jurisdiction. The respondent only claimed arrears of salary in the execution application after the order of dismissal had been set aside, from the date of his dismissal till the date of his reinstatement. There is no dispute with the proposition of law sought to be pressed by learned counsel for the respondent. However, in the facts and circumstances of this case, I am of the opinion that the respondent-employee was not entitled to salary for the past period and the executing court exceeded its jurisdiction by ordering that the plaintiff-decree holder was entitled to arrears of salary from 1.2.1969 to 31.5.1984 along with interest at the rate of 12% per annum. As regards interest, the matter has already been dealt with and no further discussion in necessary. As regards arrears of salary, it may be noticed that the respondent filed a suit in August 1981 for the recovery of Rs. 11482.80 as arrears of salary of three years proceeding the date of the suit by Deputy Registrar, Cooperative Societies, Patiala removing him from service as nonest. The said suit was decreed as it is. It may be seen that the plaintiff restricted his claim to the arrears of salary for the period prior to the date of the suit, to an amount of Rs. 11482.80 only. Once that is so, it is too late in the date for the plaintiff to contend in the execution application that this part of the decree be totally ignored and by ignoring that part he be now granted salary from 1.6.1961 or w.e.f 1.2.1969 as directed by the executing court in the order under revision. The plaintiff having quantified the arrears of salary prior to the date of the suit and having claimed that amount is now precluded and estopped by his act and conduct to claim anything more than what was claimed and granted under the decree. Though order of dismissal has been held to be illegal and the order of the trial Court passed in the suit has been maintained upto the High Court, yet the plaintiff cannot, in my opinion, be permitted to claim arrears of salary right from 1961 or 1969 as has been granted by the executing court. Things might have been entirely different had the plaintiff not made a specific claim and the trial court decreeing the suit had not granted the same. The trial court while decreeing the suit specifically granted an amount of Rs. 11482.80 as arrears of salary for a period of three years prior to the date of the suit. In the terms of the decree, I am clearly of the opinion that the plaintiff is not entitled to the grant of this amount i.e. for the period prior to 25.8.1981, the date of the suit and' he would be entitled to salary as may be worked out w.e.f. 25.8.1981 to the date of his retirement. Plaintiff-decree holder by the impugned order passed by the executing court was granted arrears of salary from 1.2.1969 till the date of his retirement with interest. Plaintiff is now seeking execution of the order passed by the executing court on 8.12.1994 and in that execution application he has not only claimed arrears of salary w.e.f. 1.2.1969 the date from which the executing court had granted the amount but has claimed arrears from the year 1961 i.e. the date of his dismissal. Faced with the above situation, learned counsel for the respondent submitted that the respondent was treated on duty by order dated 10.6.1991 passed by the departmental authorities after the grant of the decree by the trial court and therefore, the employee became entitled to salary from the date of his dismissal to the date of his reinstatement and till the date of his retirement. This submission of the learned counsel for the respondent again in my opinion is devoid of merit. Order dated 10.6.1991 is nothing but an order passed by the com- petent authority with a view to give effect to the decree passed by the trial court. He could be paid arrears of salary as decreed and salary for the period thereafter, only after an order of reinstatement into service is passed. This is precisely what has been done by order dated 10.6.1991. In any case the respondent is not claiming salary in execution of the order dated 10.6.1991 and he in fact cannot seek execution of that order. He is only seeking execution of the decree which never granted arrears of salary from the date of dismissal. In this view of the matter, I am clearly of the view that in the facts and circumstances of this case, the respondent was not entitled to the amount beyond Rs. 11482.80 for the period prior to 25.8.1981 and the executing court exceeded its jurisdiction in ordering payment of salary to him w.e.f. 1.2.1969 and also by ordering payment of interest at the rate 12% per annum on the arrears of salary which amounts had not been granted by the decree under execution.
13. For the reasons recorded above this revision is allowed and the order dated 8.12.1994 passed by the executing court is set aside. Execution application filed by the respondent herein seeking execution of the order dated 8.12.1994 passed by the executing court, now set aside by this order, is ordered to be dismissed. Execution application 132-T of 3.9.1994 is revived and the executing court is directed to proceed with the matter afresh in accordance with law.