1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5430 OF 1999 ALONGWITH WRIT PETITION NO.5437 OF 1999 India Government Mint .. Petitioner versus M.J.Jain & Ors. .. Respondents Ms.Jyostna Pandhi a/w Mr.N.D.Sharma i/by Mr.T.C.Kaushik for the petitioner. CORAM : A.S.OKA, J. DATE : 25th January 2010. JUDGMENT: . Though telephonic intimation was given to the concerned Court for transmitting the record of the garnishee notice, the record is not traceable and hence it is not forwarded to this Court. The learned counsel for the petitioner was placed on record, xerox copies of the salary slips of the 2nd respondent which were placed on record of the executing Court. 2. The challenge in Writ Petition No.5430 of 1999 is to the order dated 24th April 1997 in garnishee notice. The challenge is also to the judgment and order dated 26th March 1998 passed by the Appellate Bench of the Court of Small Causes in Full Court Application. 2 3. The 1st respondent had obtained a decree against he 2nd respondent. In execution, garnishee notice was taken out by the 1st respondent for recovering the decretal amount in the hands of the petitioner-garnishee (India Government Mint). A prohibitory order was issued against the petitioner requiring the petitioner to withhold his salary payable to the 2nd respondent (defendant-judgment debtor) in response to garnishee notice, an affidavit was filed by one Mr.T.Durairaj, Deputy Accountant of the petitioner stating that the 2nd respondent was suspended and he was compulsorily retired from service from 8th August 1994 and was no more in service. Evidence of the said witness was recorded by the Executing Court. While making the garnishee notice absolute by impugned order, the learned trial Court observed that the garnishee has not adduced evidence showing that the garnishee was not holding salary payable to the 2nd respondent defendant with effect from 1st March 1996. While deciding the Full Court Reference, the Appellate Bench observed that the 2nd respondent was paid his salary and allowances during the period of his suspension till the retirement. The Appellate Bench observed that no particulars such as date of payment and amount have been given by the petitioner-garnishee to show that they were not holding any salary payable to the 2nd respondent. 4. As far as Writ Petition No.5437 of 1999 is concerned, there is a challenge to similar orders which relate to another employee of the petitioner. 5. The learned counsel appearing for the petitioner submitted that the record shows that the petitioner examined one T.Durairaj, a Deputy Accountant who 3 stated that order of compulsory retirement was passed as regards the 2nd respondent as a result of which he is superannuated on 8th August 1994. The learned counsel submitted that the said evidence has been completely ignored by the Courts below. She submitted that garnishee notice could not have been made absolute. She has tendered on the record xerox copies of the salary slips of the 2nd respondent which were produced on the record of the Court of Small Causes. None appears for the respondent though notice has been served. 6. I have carefully considered the submissions. The stand taken by the petitioner-garnishee on oath was that there was an order of compulsory retirement passed against the 2nd respondent in Writ Petition No.5430 of 1999 on 8th August 1994. The stand taken by the petitioner is that the 2nd respondent in Writ Petition No.5437 of 1991 was compulsory retired effect from 26th August 1993. The Courts below have observed that prohibitory orders were served on the petitioner. In the first petition the prohibitory order was served on 1st March 1993 and in the second petition the prohibitory order was served on the same date. The trial Court observed that no evidence has been adduced by the petitioner to show that the petitioner was not holding salary of the 2nd respondent with effect from 1st March 1996. The Appellate Bench of the Court of Small Causes observed that the order dated 31st August 1994 produced by the petitioner shows that the 2nd respondent was paid his salary and allowances during the period of suspension. As stated earlier, the learned counsel appearing for the petitioner has placed on record the xerox copies of the salary slips of the 2nd respondent in both the petitions for the period between February 1993 till the 4 respective dates of their compulsory retirement. The salary slips contain remarks that the 2nd respondents were under suspension and pay and allowance was not drawn. 7. In any case there was a statement on oath made by the accountant of the petitioner that the 2nd respondent in both petitions were compulsorily retired. There is material on record to show that the 2nd respondent was suspended and no salary and pay was drawn from the date of suspension. 8. In the circumstances, the petitions must succeed and I pass the following order: : O R D E R : (a) Rule is made absolute in terms of prayer clause (a). (b) There will be no order as to costs. (A.S.OKA,J)