Bombay High Court
Ku. Vandana Vinayakrao Virkhede vs Shree Kalika Devi Shikshan ... on 22 June, 2017
Bench: A.S. Chandurkar
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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
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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.
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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
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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
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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
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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
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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/
