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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.465 OF 2002
APPELLANT: Ku. Vandana Vinayakrao Virkhede, aged
about 35 years, Occupation Service as
Junior College Lecturer in Adarsha
Junior College, Dhanora (Gurao) Tq.
Nandgaon Khandeshwar, Distt.
Amravati.
-VERSUS-
RESPONDENTS: 1. Shree Kalika Devi Shikshan Sanstha,
Dhanora (Gurao) Tq. Nandgaon
Khandeshwar, through it's Secretary, r/o
Dhanora (Gurao) Tq. Nandgaon
Khandeshwar, Distt. Amravati.
2. The Principal, Adarsha High School and
Junior College, Dhanora (Gurao) Tq.
Nandgaon Khandeshwar, Distt.
Amravati.
3.
The State of Maharashtra, through
Deputy Director of Education Amravati
Division, Amravati, Distt. Amravati.
Shri V. A. Kothale, Advocate for the appellant.
Shri Thakre, Advocate for respondent nos.1 and 2.
CORAM: A.S. CHANDURKAR, J.
DATED: 22 nd JUNE, 2017.
ORAL JUDGMENT :
1. This appeal filed under Section 100 of the Code of Civil Procedure has been admitted on the following substantial ::: Uploaded on - 28/06/2017 ::: Downloaded on - 29/06/2017 00:19:36 ::: sa465.02.odt 2/8 questions of law:
(1) Whether the finding of the lower appellate Court that respondent had paid the salary to the appellant upto October 1994 is based on evidence adduced on record and whether it is perverse?
(2) Whether Trial Court justified in interfering with the judgment given by Trial Court when it is a case of plaintiff that Respondent No.2 school was no grant-in-aid basis and false and fake documents are prepared to show that payment of salary is made to appellant?
2. The appellant is the original plaintiff. It is her case that she was appointed on the post of Junior College Lecturer in the High School run by respondent no.1. According to her, she was initially appointed on 6-7-1992. It is her case that though the salaries were to be deposited in her bank account, the same was not done despite obtaining her signatures. As she was not paid salary for the period from July 1993 to June 1995, she filed suit for recovery of amount of unpaid salary.
3. In the written statement filed by defendant nos.1 and 2, stand was taken that the suit was barred by limitation. It was pleaded that salary for the aforesaid period was already paid and that the pay roll for the relevant period had been duly signed. ::: Uploaded on - 28/06/2017 ::: Downloaded on - 29/06/2017 00:19:36 :::
sa465.02.odt 3/8 It was submitted that the services of the plaintiff came to an end at the conclusion of the Session 1994-1995. It was therefore pleaded that the suit was liable to be dismissed.
4. The plaintiff examined herself below Exhibit-19 and deposed that she was not paid salary for the period from July, 1993 to 1995. The amount due towards the salary was Rs.1,04,760/-. In her cross-examination she admitted that she had signed on the pay rolls which were jointly exhibited as Exhibit-25. She also admitted issuance of letter dated 9-8-1995 at Exhibit-26.
5. The defendants examined the Secretary of the Society. He stated that the salaries were paid in cash to the plaintiff. In his cross-examination he admitted that when the school does not receive any grants, the salaries were paid by the Education Officer by depositing it in the personal account of the concerned employee. He admitted that except the pay rolls at Exhibit-25, there was no other document to show payment of salary.
6. The trial Court on consideration of the entire evidence on record came to the conclusion that the plaintiff had not been paid salary for the aforesaid period. This conclusion was arrived at on the basis of the contradictory stand taken by the defendants witness and the document at Exhibit-25. After holding that there ::: Uploaded on - 28/06/2017 ::: Downloaded on - 29/06/2017 00:19:36 ::: sa465.02.odt 4/8 was no evidence to indicate salary being credited to the bank account of the plaintiff, the suit was decreed.
The appellate Court in the appeal preferred by the defendants held that as per pay rolls at Exhibit 25, the salary had been paid and, therefore, non-examination of the Principal was not material. The appellate Court also gave importance to the letter at Exhibit-26 issued by the plaintiff. On the concession made by the defendants, it was held that the plaintiff would be entitled for salary for the period from October, 1994 till June, 1995. The appellate Court, therefore, partly allowed the appeal and modified the decree of the trial Court to that extent.
7. Shri V. A. Kothale, learned Counsel for the appellant submitted that the appellate Court was not justified in interfering with the judgment of the trial Court. He submitted that in column 21 of the pay rolls at Exhibit-25, it had been clearly stated that the amount mentioned in column 21 was to be deposited in the bank account of the concerned employee. According to him, signatures made by the plaintiff at Exhibit-25 merely indicated that she was entitled for the said amount which was to be deposited in her bank account. In absence of any evidence to show deposit of said amount, the said pay rolls could not support the case of the defendants. He further submitted that the letter at Exhibit-26 ::: Uploaded on - 28/06/2017 ::: Downloaded on - 29/06/2017 00:19:36 ::: sa465.02.odt 5/8 dated 9-8-1995 had to be read as a whole and a stray sentence therein could not have relied upon. He, therefore, submitted that the appreciation of evidence by the appellate Court was perverse and that the decree of the trial Court was liable to be restored.
8. Shri P. P. Thakre, learned Counsel for the respondents supported the impugned judgment. According to him, the plaintiff having signed the pay rolls at Exhibit-25 she could not be permitted to urge that she had not received salary for the aforesaid period. From the deposition of DW-1, it was clear that the plaintiff had received the entire salary. He submitted that the plaintiff did not bring on record details of her bank account. In Exhibit-26, the plaintiff admitted that she had not received salary from October, 1994 and the same was rightly granted by the appellate Court. He, therefore, submitted that no interference was called for with the impugned judgment.
9. With the assistance of the learned Counsel for the parties, I have perused the records of the case and I have given due consideration to their respective submissions. The claim for unpaid salary is for the period from July 1993 to June 1995. The appellate Court has granted a decree same for the period from October, 1994 till June 1995. This decree passed by the appellate Court is not challenged by the defendants. Hence, the only ::: Uploaded on - 28/06/2017 ::: Downloaded on - 29/06/2017 00:19:36 ::: sa465.02.odt 6/8 question that remains is with regard to claim for salary from July 1993 till September, 1994. Exhibit-25 is the consolidated statement of pay rolls maintained by the defendants indicating payment of salary to employees. Column 21 thereof specifically mentions that the amount mentioned therein is to be deposited in the personal account of the employee. There is a counter signature by the concerned employee on such document. Taking this document at its face value and accepting whatever is stated therein, it can only be said that the entitlement of the concerned employee to have the relevant amount credited to his bank account has been recognized. Besides this, Exhibit-25 cannot be read to indicate actual deposit of salary in the bank account. Admittedly, the defendants did not bring on record any evidence to show the requisite amount being credited in the bank account of the plaintiff. This was a material piece of evidence in the custody of the defendants but it was not produced. On the contrary, it is deposed by the defendants witness that salary was paid to the plaintiff in cash. This stand in the light of the document at Exhibit- 25 cannot be accepted. The trial Court rightly noticed the contradictory stand taken by the defendants witness in relation to this document. The appellate Court, however, erred in interfering with the findings recorded by the trial Court. It is clear that ::: Uploaded on - 28/06/2017 ::: Downloaded on - 29/06/2017 00:19:36 ::: sa465.02.odt 7/8 Exhibit-25 cannot be treated as a document indicating actual receipt of salary by the plaintiff.
10. In so far as Exhibit-26 is concerned, it is a communication by the plaintiff to the Principal in which it is stated that she be taken back in the employment considering her past service. This communication has been issued after termination of her services at the end of academic session 1994-1995. Amongst other things, there is a reference of non-payment of salary from October, 1994 onwards. This communication when read as a whole cannot be treated as an admission that the plaintiff had received salary for the earlier period. The trial Court had rightly come to the conclusion that this communication was not an admission by the plaintiff that she had received salary prior to said period. The appellate Court, however, misconstrued this document and picked out only one sentence therefrom to come to the conclusion that the salary for the earlier period was received. On this point also, the judgment of the appellate Court cannot be sustained.
11. Accordingly, the substantial questions of law are answered in favour of the appellant and it is held that she is entitled to receive the salary for the period from July, 1993 to September, 1994.
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12. In the result, the following order is passed:
ORDER The judgment of the appellate Court dated 18-7-2002 in Regular Civil Appeal No.30/1999 is partly modified. It is held that the appellant is also entitled for salary for the period from July, 1993 till September, 1994. The said amount of arrears of salary be paid with interest @7.5% per annum from the date of filing of the suit till realization. The aforesaid amounts be paid within a period of four months from today failing which the entire arrears would be liable to be paid @9% per annum.
The appellant shall deposit deficit court fee in appeal within six weeks from today.
The Second appeal is allowed in aforesaid terms.
JUDGE /MULEY/ ::: Uploaded on - 28/06/2017 ::: Downloaded on - 29/06/2017 00:19:36 :::