Darshan Singh Vs. State of Punjab

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Date of judgment:
13/02/2007
Hon'ble Judges:
AR. Lakshmanan, ALTAMAS KABIR

JUDGMENT:
J U D G M E N T
[Arising out of SLP(C) No. 20477 of 2005]

Dr. AR. LAKSHMANAN, J.

Leave granted.

The present appeal is directed against the judgment and order dated
8.4.2005 passed by the High Court of Punjab and Haryana in Civil
Revision No. 2569 of 1996 whereby the High Court allowed the Civil
Revision filed by the respondent-State of Punjab. The appellant joined
the PWD Department of State of Punjab as Clerk on 2.2.1953. He was
promoted as a Sub-Divisional Clerk in the year 1957 and thereafter as
Accounts Clerk in April 1965.

A case of embezzlement and misappropriation of Government
funds was made against him and the department filed an appeal against
the Respondent and he was put under suspension vide office order No.
57/E dated 24.5.1965. A criminal case was initiated against the
Appellant which ultimately resulted in the acquittal of the Appellant vide
judgment and order dated 9.8.1973 passed by the Additional Sessions
Judge, Amritsar. No departmental action was taken against the Appellant
and he was merely kept under suspension. The Appellant was reinstated
vide order dated 12.4.1978 and it was ordered that period of his
suspension be treated on duty for all intents and purposes. The Appellant
was given proforma promotion as Officiating Head Clerk w.e.f.
24.9.1972 vide office order No. 55/E dated 27.4.1978. The Appellant
retired after attaining the age of superannuation as Superintendent
Grade-IV on 28.2.1989.

The Appellant filed Suit No. 898 of 14.5.1990 for declaration and
mandatory injunction seeking full pay and allowances for the period
25.5.1965 to 28.4.1978 and also claimed that he was entitled to cross
efficiency bar w.e.f. 1.9.1981 and consequential relief thereof i.e.
proficiency step up increments, increase in leave encashment, pension
and gratuity etc. with interest at 18% per annum. The Appellant sought
mandatory injunction for payment of the aforementioned dues with
interest.

The suit of the Appellant was partly allowed by the trial court
holding him entitled for an amount of Rs.60,586.75 along with interest at
12% per annum from the date the amount became due till its actual
payment. The claim for crossing the efficiency bar was, however,
rejected by the Trial Court being time barred.

An appeal was filed by the Appellant which was allowed by the
First Appellate Court vide judgment dated 17.11.1993 and the appeal
filed by the Respondent/State was dismissed. The Appellant was held to
be entitled for consideration of crossing the efficiency bar.

Two second appeals which were filed by the Respondent against
the common judgment of the Appellate Court were dismissed by the
High Court on 12.9.1994. Thereafter the Appellant filed execution
petition in the Court of Additional Civil Judge, Amritsar on 31.10.1994.
The Respondent/State filed its objections. The Respondent/State
thereupon filed Special Leave Petition Nos. 1527-1528 of 1995 in this
Court and the same was dismissed vide order dated 3.2.1995. The
Appellant replied to the objections of the State in the execution
proceedings. Office Order No. 100 dated 24.3.1995 was issued by the
Respondent whereby the Appellant was allowed to cross the efficiency
bar. Vide Office Order No. 103/95 dated 30.3.1995, the Appellant was
also granted one additional increment on consolidation of 8 years' service
in the form of proficiency step up w.e.f. 1.1.1986. The Executing Court
dismissed the objections filed by the Respondent/State and held that the
Appellant is entitled for interest at 12% per annum with yearly rest. The
Civil Revision Petition filed by the State against the order dated
15.5.1996 of the Executing Court was allowed holding that the Appellant
is entitled to an amount of Rs.60,586.75 from 9.12.1992, namely, the date
of decree upto the date of actual payment.

Mr. Satinder S. Gulati, the learned counsel for the Appellant
submitted that in terms of the decree which has attained finality, the High
Court in exercise of its revisional jurisdiction passed an order, could not
have ordered/varied the terms of the decree in view of the law laid down
by this Court in various judgments. The learned counsel further
submitted that the High Court was under an apparent error in granting
interest from 9.12.1992 though the decree specifically stated that the
interest is liable to be paid by the Respondent from the date of the
amount became due and payable to the Appellant. The learned counsel
also addressed on the question that the Executing Court cannot go behind
the terms of a decree passed by a Court of a competent jurisdiction. He
has further submitted that the Respondent has already held Appellant
entitled for crossing the efficiency bar and had made payment against the
same to the Appellant, but the High Court had passed the impugned
judgment as if the Appellant is yet to be considered for crossing the
efficiency bar.

It was submitted that the Appellant had made a representation to
the department for his reinstatement to Superintending Engineer
(Construction Cell), Amritsar which was kept under consideration for
two years, thereafter the Appellant was reinstated vide Order No.
17/F& amp;K dated 12.4.1978 issued by the Chief Engineer, PWD. It was
ordered by the Chief Engineer for his reinstatement and the period of
suspension was ordered to be treated on duty for all intents and purposes.
It was further submitted that in pursuance and in continuation of the
aforesaid order dated 12.4.1978 passed by the Chief Engineer, the
Appellant was given proforma promotion as Officiating Head Clerk
w.e.f. 24.9.1972 on the orders issued by the Superintending Engineer,
Amritsar, PWD dated 27.4.1978 and that the Appellant was posted as
Officiating Head Clerk in Bridge Investigating Division and where the
Appellant joined the duty on 28.4.1978. Thus, it is seen that in view of
the aforementioned facts and circumstances the whole suspension period
of the Appellant was regularized by the department as duty period for all
intents and purposes, therefore, the Appellant became entitled for whole
arrears of pay and emoluments and the suspension period stood
condoned. But the High Court vide order dated 8.4.2005 allowed the
Civil Revision filed by the Respondent setting aside the order dated
15.5.1996 passed by the Executing Court. It is submitted that the
impugned order is apparently erroneous for the reasons that the High
Court held in it that the amount of Rs.60,586.75 is payable to the
Appellant along with interest @ 12% per annum from 9.12.1992 till the
date of payment, instead from the date the amounts became due and
payable to the Appellant.

The learned counsel for the Appellant submitted that the
Respondent did not lead any evidence to their objections but on behalf of
the Appellant two witnesses were examined and the Respondent did not
lead any evidence to show that the Appellant was not entitled to the
interest @ 12% per annum with yearly rest as Appellant raised in the
execution.

It was also brought to our notice that an Office Order No. 100
dated 24.3.1995 was passed by the Superintending Engineer, Central
Works Circle, PWD allowing the Appellant to cross the efficiency bar
w.e.f. 1.9.1981 at the stage of Rs.850/- in the pay scale of Rs.620-20-
700/25-850/30-1000/40-1200 and his pay was raised from Rs.850/- to
Rs.880/- per month. The Respondent vide Office Order No. 103 dated
30.3.1995 granted the Appellant one additional increment on
consolidation of 8 years' in the form of proficiency step-up w.e.f.
1.1.1986 in the pay scale of Rs.2000-3500 raising his pay from Rs.2100
to Rs.2150 per month. Thus, it is seen that the Respondent has already
held that the Appellant to be entitled for crossing the efficiency bar and
had made the payment to him for the same and the High Court in the
impugned judgment has said that the Respondent should consider the
Appellant's case for crossing the efficiency bar.

In support of his contention that the Executing Court cannot go
behind the terms of the decree passed by a Court of competent
jurisdiction, the learned counsel for the Appellant placed strong reliance
on the judgments in Vasudev Dhanjibhai Modi v. Rajabhai Abdul
Rehman & amp; Ors. 1970 (1) SCC 670; C. Gangacharan v. C. Narayanan
reported in 2000 (1) SCC 459 and Bhawarlal Bhandari v. Universal
Heavy Mechanical Lifting Enterprises 1999 (1) SCC 558.

We shall now consider the above three judgments.
Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & amp; Ors.(supra), this
Court in para 6 held the following:-
& quot;A court executing a decree cannot go behind
the decree : between the parties or their
representatives it must take the decree
according to its tenor, and cannot entertain
any objection that the decree was incorrect in
law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a
decree even if it be erroneous is still binding
between the parties.& quot;

This Court held that the Executing Court cannot go behind the
decree unless it is shown that it was passed by a Court inherently lacking
jurisdiction and thus was a nullity. The aforesaid decision of this Court
squarely applies to the facts of the present case. This is not a case in
which the decree on the face of it was shown to be without jurisdiction.
It is not the case of the Respondent that the Court which passed the
decree was lacking inherent jurisdiction to pass such a decree.

This Court in the judgment reported in Bhawarlal Bhandari v.
Universal Heavy Mechanical Lifting Enterprises(supra) and in C.
Gangacharan vs. C. Narayanan (supra) has also taken the same view that
the Executing Court cannot go behind the decree of a Court of competent
jurisdiction except in the decrees void ab initio without jurisdiction.

Mr. Kuldip Singh, learned counsel for the Respondent, in reply to
the arguments advanced by the learned counsel for the Appellant,
submitted that this Court had issued notice to the Respondent limited to
the question of efficiency bar and also regarding the due date from which
the payments are to be made. According to him, the High Court has
decided the case after due consideration of all aspects on the due dates for
awarding the interest i.e. 9.12.1992 is quite justified and are well within
the provisions of the settled law. It is further submitted as follows:-
& quot;Due date from which the payments are to be
made.

i) That Hon'ble High Court orders dated
8.4.2005 are in order and as per law.
ii) That the Trial Court decreed the suit filed
on 9.12.1992 for the 60586.75 with
interest @ 12% per annum from the date,
the amount become due till the date of
realization.
iii) That the amount of Rs.60586.75 was
clearly quantified by the Trial Court in his
orders dated 9.12.1992.
iv) That there is no provision in the decree
that the amount become due in the year
1965 when the plaintiff was suspended or
that this amount become due on the date of
his reinstatement on 12.4.1978.
v) That there is no provision of any specific
date in the decree and the award is clearly
quantified to Rs.60586.75 paisa and was
declared on the date of decree i.e.
9.12.1992 and thus interest become due
only after that date.

In the light of the above background, the following substantial
questions of law of public importance arose for consideration of this
Court:-
A. Whether in terms of the decree which has attained finality,
the High Court in exercise of its revisional jurisdiction
against the order passed in execution would have
added/varied terms of decree?
B. Whether the High Court was under an apparent error in
granting interest from 9.12.1992 though the decree
specifically stated that the interest would be paid along with
interest @ 12% per annum from the date the amount became
due and payable to the Appellant?
C. Whether the impugned directions by the High Court in
regard to crossing of efficiency bar by the Appellant are
erroneous for the reasons that the Respondent/State has
already allowed the Appellant to cross the efficiency bar
w.e.f. 1.9.1981 by passing an office order No. 100 dated
24.3.1995?

We have carefully considered all the orders passed by the Trial
Court, Appellate Court and the High Court and also the order passed by
the Executing Court. We have also perused the annexures and the
records filed along with the SLP. Our attention was drawn to the relevant
passages in the judgments. Both the learned counsel argued the case at
length. In our opinion, the order of the High Court is absolutely
incorrect. In the instant case, the Respondent/State has taken the stand in
their counter-affidavit before this Court totally contrary to the stand taken
before the High Court and the courts below. The Trial Court passed the
decree dated 9.12.1992 in favour of the Appellant holding him entitled to
interest @ 12% per annum from the date the amount became due and
payable till realization. The decree simply meant that the Appellant is
entitled for dues and the allowances for the period 25.5.1965 to
28.4.1978, thus Appellant became entitled for the interest on due
amounts from 25.5.1965 untill the date of realization. The State of
Punjab in their objections to the Execution Petition of the Appellant took
erroneous ground that the Appellant became entitled for payment from
the date i.e. 24.4.1978, but before this Court the State of Punjab has taken
the stand in para 5(v) of the counter-affidavit that the Appellant is
entitled for interest from the date of decree i.e. 9.12.1992. It is totally
contrary to the earlier stand taken by them. Therefore, contradictory
stand taken by the State cannot at all be countenanced.

In the instant case, the Respondent/State has already held the
Appellant entitled to cross the efficiency bar w.e.f. 1.1.1981 and his pay
was raised from Rs.850/- to Rs.880/- per month vide their office order
No. 100 dated 24.3.1985. The Respondent/State even granted one
additional increment w.e.f. 1.1.1986 raising his pay from Rs.2100/- to
Rs.2150/- per month vide their office order No. 103 dated 30.3.1995.
The Appellant has been paid the due amounts by the Respondent/State
according to their aforementioned office orders. Now, before this Court
for the first time the State has taken the stand in paragraphs (vii) and
(viii) that the order of the High Court for considering the case of the
Appellant for crossing the stage of efficiency bar is justified. This is the
case where the decree passed by the Trial Court and further leave granted
by the First Appellate Court in favour of the Appellant were approved by
all the Courts up-till this Court. This Court vide order dated 3.2.1995
dismissed the Special Leave Petition (C) Nos. 1527-1528 of 1995 filed
against the judgment dated 12.9.1994 in RSA Nos. 1915-1916 of 1994
and thus the decree passed in favour of the Appellant attained finality. In
such a case, the stand taken by the State in their counter-affidavit is really
unfortunate. We have already noticed that the High Court in exercise of
its revisional jurisdiction cannot vary the terms of the decree in execution
in view of the ruling by this Court in 1970 (1) SCC 670 and 1999 (1)
SCC 558 and 2000(1) SCC 459. In our opinion, the High Court has
committed an apparent error in granting interest from 9.12.1992 though
the interest is liable to be paid by the Respondent to the Appellant. Thus,
we hold that the Appellant is entitled for an amount of Rs.60,586.75
along with interest @ 12% per annum from the date the amount became
due and payable, namely, from 25.6.1965. We have already pointed out
that the contradictory statements made and taken in the counter affidavit
by the State.
In our view, the impugned order dated 8.4.2005 passed by the High
Court is totally erroneous and thus not sustainable in law. We, therefore,
direct the Respondent/State to pay the said sum of Rs.60,586.75 with
simple interest @ 12% per annum from 25.5.1965 till its realization. The
entire amount due shall be paid within two months from this date failing
which the Appellant will be entitled for payment with 18% simple
interest per annum.
The Civil Appeal stands allowed. However, there will be no order
as to costs.
ENDSHERE