Friday, 17 February 2017

Whether suit filed by employee for his wages is covered by provision of S 304 of Maharashtra municipalities Act?

A suit filed by an employee for his earned wages or salary is not covered by the provisions of section 304 of the 'Maharashtra Municipalities' Act also. Nonpayment of salary or earned wages of an employee could not be termed to be an act done in pursuance or execution or intended execution of the provisions of the Act or in respect of any alleged negligence or default in the execution of the Maharashtra Municipalities Act as such. In this view of the matter, in my opinion, there is no substance in this contention of Shri Rajkarne.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
C.R.A. No. 61 of 1970
Decided On: 28.03.1971
 Municipal Committee i.e. The Municipal Council, Washim
Vs.
Purushottam Dattatraya Pande
Hon'ble Judges/Coram:
C.S. Dharmadhikari, J.
Citation:1974 MHLJ 599

1. The non-applicant-plaintiff filed a suit against the Municipal Council, Washim for recovery of an amount of Rs. 584/- being the amount of arrears of his increments in salary and compensatory Cost of Living Allowance. The plaintiff was appointed as a teacher in a primary school run by the Municipal Council. He was confirmed on 1-3-1962 and he left the service of the Municipal Council on 30-9-1966. According to the plaintiff, though he was entitled to the increments as well as C. C. L. A. the defendant Municipality has not paid him the same and hence he filed the suit for recovery of the Said amount for a period from 6-6-1960 to 6-7-1966.
2. The Municipal Council resisted the claim of the plaintiff and contended that the plaintiff was not entitled to any such increments or C. C. L. A. It was also contended on behalf of the Municipal Council that the suit is barred by limitation and is not maintainable.
3. The learned Judge of the trial Court recorded a finding that the plaintiff was entitled to the increments as well as the C. C. L. A. and has proved his claim to the extent of Rs. 584/- as arrears of salary from 6-7-1960. The learned Judge negatived the technical objections raised on behalf of the Municipal Council and ultimately passed a decree for Rs. 584/- with interest in favour of the plaintiff and against the defendant.
4. It seems that as the said suit was registered as Regular Civil Suit No. 12 of 1967, the Municipal Council filed an appeal against the said judgment and decree before the District Court. However, by an order dated 24-1-1970 the Assistant Judge, Akola returned the memo of appeal to the appellant, Municipal Council, for presentation to the proper Court. Thereafter the present revision application was filed by the Municipal Council.
5. Shri Rajkarne, the learned counsel for the applicant, contended before me that the suit filed by the plaintiff was governed by the provisions of the Maharashtra Municipalities Act, and therefore, the plaintiff's suit was barred by limitation. According to him, the special provision made in the Act regarding limitation will apply to the claim made in the suit. He also contended that in any case the provisions of Article 102 of the old Limitation Act or Article 7 of the new Limitation Act will apply to the present case and hence in any case the claim made by the plaintiff beyond the period of limitation from the date of the suit is barred by limitation.
6. It is not possible for me to accept the contention of Shri Rajkarne that the present suit is governed by section 304 of the Maharashtra Municipalities Act, 1965. It is not necessary for me to deal with this aspect of the matter in detail in view of the decision of this Court in Dattatraya v. The Municipal Council, Patur Second Appeal No. 313 of 1964, decided on 24-1-1974. While dealing with somewhat analogous provisions of the C. P. and Berar Municipalities Act, it was observed by me in the said decision as under:
It is no doubt true that under section 25 of the Act the Municipal Council is authorised to employ such officers or servants as may be necessary and proper for efficient discharge of its duties. The running of the primary schools is one of the functions which is entrusted to the Municipal Council, and therefore, an employment of a teacher in a Municipal Council could be said to be a thing done or purported to be done under the Act. However, it cannot be said that the non-payment of a salary was a thing done or purported to be done under the provisions of the Act. When the services are rendered or deemed to be rendered by an employee he earns his salary. The non-payment of such earned wages or salary is not a thing which is authorised by the Act. As a matter of fact it could be said to be an act of the Municipality which is not only illegal and unauthorised, but is ultra vires of its powers.
Similar view has been taken by this Court in Namdeo v. Z.P. Bhandara 1973 Mh. L J Note 62 while construing the provisions of C. P. and Berar Local Government Act.
7. A suit filed by an employee for his earned wages or salary is not covered by the provisions of section 304 of the 'Maharashtra Municipalities' Act also. Nonpayment of salary or earned wages of an employee could not be termed to be an act done in pursuance or execution or intended execution of the provisions of the Act or in respect of any alleged negligence or default in the execution of the Maharashtra Municipalities Act as such. In this view of the matter, in my opinion, there is no substance in this contention of Shri Rajkarne.
8. However Shri Rajkarne is right when he contended that the learned Judge committed an error in holding that the suit filed by the plaintiff is governed by Article 55 of the new Limitation Act. Article 55 of the new Limitation Act reads as under:
Description of suitPeriod of limitationTime from which period begins to run.
55. For compensation for breach of any contract, express or implied not herein specially provided for.Three years.When the contract is broken or (Where there are successive breaches) when the breach in respect of which the suit is instituted occurs or (where the breach is continuing when) it ceases.
The present suit is not for claiming any compensation or damages for the breach of any contract as such. The claim made by the plaintiff in the present suit is a claim for wages as contemplated by Article 7 of the new Limitation Act. This aspect of the matter has also been considered by the Supreme Court in S. D. S. Shrivastava v. Union of India MANU/SC/0315/1973 : AIR 1974 SC 338 and after referring to Article 102 of the old Limitation Act and Article 7 of the new Limitation Act, in this context it was observed by the Supreme Court as under:
The only question of some difficulty raised before us is whether Article 102 or Article 120 of the Limitation Act of 1908 would apply to the case. After having heard the attractive arguments of Mr. Yogeshwar Prasad, we have no doubt that a good deal can be said in favour of the contention that a claim for arrears of salary is distinguishable from a claim for wages. But, our difficulty is that the question appears to us to be no longer open for consideration afresh by us, or, at any rate, it is not Advisable to review the authorities of this Court after such a lapse of time when, despite the view taken by this Court that Article 102 of the Limitation Act of 1908 was applicable to such cases, the Limitation Act of 1963 had been passed repeating the law, contained in Articles 102 and 120 of the Limitation Act of 1908, in identical terms without any modification. The Legislature must be presumed to be cognizant of the view of this Court that a claim of the nature before us, for arrears of salary falls within the purview of Article 102 of the Limitation Act of 1908. If Parliament, which is deemed to be aware of the declarations of law by this Court, did not alter the law, it must be deemed to have accepted the interpretation of this Court even though the correctness of it may be open to doubt. If doubts had arisen, it was for the Legislature to clear these doubts. When the Legislature has not done so, despite the repeal of the Limitation Act of 1908, and the enactment of the Limitation Act of 1963 after the decisions of this Court, embodying a possibly questionable view, we thing it is expedient and proper to overrule the submission made on behalf of the appellant that the correctness of the view adopted by this Court in its decisions on the question so far should be re-examined by a larger Bench.
This Court in Shri Madhav Laxman Vaikunthe v. State of Mysore MANU/SC/0323/1961 : AIR 1962 SC 8 = 1962 (1) SCR 886 at p. 894, following the case of Punjab Province v. Pandit Tarachand AIR 1947 F C 23 = MANU/FE/0010/1947 : 1947 F C R 89 at pp. 93, 108 load held that Article 102 of Limitation Act of 1908 will apply to such a case. It reiterated this view in Jai Chand Sawhney v. Union of India (1969) 2 SC C 642 and again in State of Andhra Pradesh v. Kutubuddin Civil Appeal No. 2284 of 1966, dated 8-10-1969 (S C).
In this view of the matter, in my opinion, the present suit is governed by Article 7 of the new Limitation Act.
9. In the result, therefore, the present revision application is partly allowed. The plaintiff's claim for arrears of increments of his salary and for C. C. L. A. for the period from 12-1-1964 to 6-7-1966 which is in limitation is allowed. Consequently the decree passed by the Civil Judge, Senior Division, Washim, is modified and it is directed that the plaintiff is entitled to recover an amount of Rs. 139.50 and the proportionate costs of the suit from the defendant. The plaintiff will also be entitled to get interest on the decretal amount at the rate of Rs. 6/- p. c. p. a. from the date of the suit till the date of realisation of the amount. However, in the circumstances of the case, there will be no order as to costs in this revision application.
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