1. This appeal is by the defendant No. 1. The Jorhat Local Board, of which the Deputy Commissioner, Sibsagar, Jorhat, is at present in charge, and the Deputy Commissioner, as per petition filed by him, has been substituted in place of the Jorhat Local Board.
2. The facts briefly are that the plaintiff was the Headmaster of the Titabar Middle English School, having been appointed in 1918. He retired from service on 30-6-1951, but was re-employed and went out of office on 30-9-53. Under the rules of the Board, out of the plaintiffs salary, he had to deposit annas two in the rupee by way of Provident Fund subscription, and one anna per rupee was to be contributed by the employer, the Local Board. The amount of the Provident Fund used to be deposited by the Board in the Post Office Savings Bank till sometime in 1946, when a part of it was transferred and deposited in the Jorhat branch of the Calcutta Commercial Bank Limited at the instance of the Chairman of the Board. When the National Savings Certificates Scheme was introduced, the plaintiff showed his willingness to have his Provident Fund money invested in those Certificates, and with that end in view the plaintiff wrote a letter, dated 26-4-48, to the then Chairman) (defendant No. 2) requesting him to withdraw the money from the Post Office Savings Bank and the Calcutta Commercial Bank Limited, and to invest the same in National Savings Certificates. The Calcutta Commercial Bank went into liquidation sometime in September, 1948, and the plaintiff came to know that the money deposited therein, including the money belonging to the Provident Fund of the plaintiff, had not been withdrawn from the said bank. The defendants paid the plaintiff the money which was in deposit in the Post Office Savings Bank but the balance, namely, a sum of Rs. 3044/2/- which, with interest came to Rs. 3099/-, was not paid to the plaintiff, and hence the present suit.
3. The defendant No. 1, the Board, contested the suit, as well as the defendant No. 2. The defence of the defendant No. 1 is that the Board, by a resolution dated 27-11-40, had accepted the revised rules in regard to the Provident Fund, which enabled the Board to invest the Provident Fund money in a scheduled bank, and the money was accordingly deposited in the Calcutta Commercial Bank Limited, which was a scheduled bank. The defendant No. 1 further denies the receipt of any letter dated 26-4-48, from the plaintiff, and adds that even if the letter had been received by it, if could not have withdrawn the money from the aforesaid bank because the money was kept there under the Fixed Deposit account, and the deposit had not matured.
4. It was further alleged that the Provident Fund money became due to the plaintiff on 1-7-51, the plaintiff having retired from service on 30-6-51, and, therefore, the claim of the plaintiff was barred by limitation. The defence of the defendant No. 2 was that the money in question was deposited on 12-8-41 when he was neither the Chairman nor even a member of the Board, and he has repeated the same defence which was taken by the defendant No. 1. We are not concerned with the defence of defendant No. 2. In any greater detail for the reason that the suit has not been decreed against him.
5. The trial Court decreed the suit for the amount claimed, with mterest at 2 per cent per annum, from the date of the decree till realisation against the defendant No. 1, the Board, and dismissed the suit against the defendant No. 2. On an appeal by the defendant No. 1, the decree of the first Court has been affirmed, and hence this appeal.
6. The lower appellate Court has found—
(i) that, according to the rules framed by the Board, the individual consent of a subscriber was to be taken for investment of his Provident Fund money in a particular Bank:
(ii) that the Board insisted on the individual consent of the teachers concerned regarding the investment of their Provident Fund money, and, in fact, the consent of the members of the Teachers Association was taken: — (It must be mentioned that the plaintiff was not a member of such an Association)
(iii) that no consent of the plaintiff was taken for investment of his money in the Calcutta Commercial Bank Limited:
(iv) that the plaintiff did write to the Chairman of the Board on 26-4-48 to withdraw the money from the Calcutta Commercial Bank Limited;
(v) that the Provident Fund money was kept in two deposits in the said Bank, one of which amounted to Rs. 16,000/- and was to mature on 30-6-48; and that the other amount of Rs. 60,000/- was to mature on 12-8-48;
(vi) that, on 30-6-48, the Bank was functioning normally, and, therefore, the Board could have easily withdrawn the amount of the plaintiff on that date from the Bank, but that was not done; and
(vii) that the suit was not barred by limitation either under Section 103 of the Assam Local Self-Government Act or under Article 2 or 36 of the limitation Act.
7. The learned counsel. Mr. Goswami, appearing on behalf of the appellant has submitted, that the Court below is wrong in holding that the suit is not barred by limitation, and he has repeated the submissions made in the Court below on behalf of his client, namely, that the suit is barred under Section 103 of the Assam Local Self-Government Act (Assam Act XXV of 1953) and under Articles 2 and 36 of the Limitation Act. Before the question of limitation under a particular section of the aforesaid Act XXV of 1953 or under a particular Article of the Limitation Act is considered, it has to be borne in mind that the money, for the recovery of which the suit has been brought, belonged to the plaintiff, and that he has merely sued for recovery of the amount due to him by the Board. The relevant portion of Section 103 of the Assam Local Self-Government Act runs as follows:
“103.(1).—A suit shall not be instituted against any Local Board or against any member of the Board or against any officer or servant of the Board, or any person acting under its direction, ‘for anything done under this Act’ …… and also, where it is intended to institute the suit against any officer or servant of the Board or any person, acting under its direction…………….
(3) Every suit of the nature referred to in sub-section (1) shall be instituted within a period of three months from the date on which the cause of action arose …………….”
8. The important words in by opinion, have been underlined (here into ???) by me.
9. In my judgment, the present suit is not ‘for any thing done under this Act’. As I have said, the suit as merely for recovery of the money belonging to the plaintiff, and it cannot by any stretch of imagination be said that the suit is ‘for anything done under this Act’. The money which belonged to the plaintiff, has been withheld by the Board, and there is no provision anywhere which has been brought to my notice to the effect that the Board was entitled to withhold the said money of the Provident Fund of the plaintiff. Article 2 of the Limitation Act prescribes ninety days' limitation from the date when the act or omission takes place, ‘for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment in force for the time being in India.’
10. I cannot possibly persuade myself to accept the submission of Mr. Goswami to the effect that this Article applies. On the language of the Article itself, it appears that it is intended to apply for the protection, under certain circumstances, of acts which are not legal or justifiable, and for protection in all cases where the defendant did, or neglected what is complained of, while honestly intending to act in accordance with his statutory powers and, whether reasonably or not, believing in the existence of such facts or state of things as would, if really existing, have justified his conduct; in other words, the defendant should have a bona fide belief in facts which, if they had existed, would have afforded a justification under the statute.
11. This Article, on the very language of it, can possibly have no application to the facts of the present case. Article 36 likewise, in my opinion, has no application. It prescribes a period of one year from the date or time when the malfeasance, misfeasance or non-feasance takes place, ‘for compensation for any malfeasance, misfeasance or non-feasance independent of contract and not herein specially provided for.’ In my judgment, it is not possible to hold, upon the facts of this case, that the action has been brought for compensation for any malfeasance, misfeasance or non-feasance. The suit, as I said, is merely for recovery of money due to the plaintiff from the defendant.
12. Mr. Goswami has relied upon certain authorities, namely, upon the cases of (i) Amar Singh v. Deputy Commissioner, Gujranwala, AIR 1937 Lab 748, (ii) Pt. Shiam Lal v. Abdul Raof, AIR 1935 All 538, (iii) Secretary of State v. Lodna Colliery Co. Ltd., AIR 1936 Pat 513, (iv) Shariful Hasan v. Lachmi Narain, AIR 1932 All. 16, and (v) Kripa Ram v. Kunwar Bahadur, AIR 1932 All 256. In my judgment, none of these cases has any resemblance to the facts of the present case. In the Lahore case, the suit was instituted for recovery of compensation by the pound-keeper for the reason that a certain number of sheep and goats which had been impounded were ordered to be released by the Deputy Commissioner acting as the Chairman of the District Board concerned AIR 1935 All 538 is a case which arose out of a suit for damages on the ground that the defendant, a Police constable, who cherished a grudge against the plaintiff, made a false report on a certain date at the Police Station concerned stating that the plaintiff was leading a riotous mob. The facts of AIR 1936 Patna 513 are also entirely different. Their Lordships of that Court observed as follows:
“The object of the article is the protection of public officials who, bona fide purporting to act in the exercise of a statutory power, have exceeded that power and have committed a tortious act; it resembles in this respect the English Public Authorities Protection Act if the act complained of is within the terms of the statute, no protection is needed, for the plaintiff has suffered no legal wrong. The protection is needed when an actionable wrong has been committed, and to secure the protection, there must be, in the first place, a bona fide belief by the official that the act complained of was justified by the statute, secondly, the ct must have been performed under colour of a ??? duty, and thirdly, the act must be in ??? in order to give rise to the cause of action, ??? is against such actions for tort that the statute ??? protection. Article 2 has no application to suits to recover statutory compensation independently of any question of tort.”
13. I have taken this observation from the ??? which correctly deals out the decision. The two cases in AIR 1932 All 16 are likewise quite different from the facts of the present case. On the other land, the learned counsel for the respondent has referred to certain cases to which a reference, in my opinion, is necessary. The case of Jatindra Nath Pal v. Corporation of Calcutta, AIR 1945 Cal 44 was a case for recovery of Provident Fund money from the Calcutta Corporation. In that case, the dismissal of the plaintiff from service had taken place on 29-5-36, and the suit was filed on 20-1-42 claiming the Provident Fund money standing to the ??? of the plaintiff in the Calcutta Corporation. The argument on behalf of the Corporation was that three years' limitation under Article 115 of the imitation Act applied, and the suit was barred by ??? The learned Judge negatived the contention and held that Article 120, the residuary article, applied, and not Article 115.
14. With all respect, I entirely agree with the decision arrived at in that case. The case of Corporation of Calcutta v. Asoke Kumar De, AIR 1928 Cal. 43 is again a case for recovery of Provident Fund money. In that case, the subscriber to the Provident Fund had died on 27-11-20 and the plaintiff, his son, brought a suit for recovery of the amount to the credit of the deceased, in 1926, much more than three years after the death of his father. In that case, it was sought to be argued that under the provisions of section 538 of the Calcutta Municipal Act the suit should be held to be barred by time.
15. Section 538 of the Calcutta Municipal Act was held to apply to suits against the Corporation in respect of an act purporting to be done under the Calcutta Municipal Act or under any rule or bye law made thereunder, and it was held that the suit for recovery of Provident Fund money could not ??? be covered by Section 538 of the Calcutta Municipal Act, and that the suit was not time-barred. The case of Tinsukia Municipal Board v. Bankim Chandra Ghose, AIR 1950 Assam 101 was also laced before me; but, in my opinion, the facts of that case are not similar.
16. In my judgment, therefore, the Court below was correct in holding that no specific article of the limitation Act applied, and that, therefore, the ??? Article, namely, Article 120 of the Act applied, and also that Section 103 of the Assam Local Self-Government Act had no application. Mr. Goswami also referred to the payment of Rs. 2000/- to the plaintiff, and I had thought that ??? Rs. 2000/- was paid by the Board to the plaintiff, that amount of money was paid out of the money ??? to the plaintiff from the Board on account of the provident Fund Amount; but this being a question of fact and it being not at all agitated in any of the Courts below as to whether this amount was aid or, if paid, was paid towards the dues of the plaintiff on account of his Provident Fund deposits, ad no issue having been struck, it is now too late ??? take up this question of fact.
17. The result is that the appeal fails and it is dismissed with costs.
D/V.B.B
18. Appeal dismissed.