R.S.A.No. 3800 of 2008(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3800 of 2008(O&M) Date of Decision:July 22, 2009 Vijay Kumar ---Appellant versus Haryana Roadways and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. Parminder Singh,Advocate, for the appellant. *** SABINA, J. Plaintiff –Vijay Kumar had filed a suit for mandatory injunction directing the defendants to reinstate him as the order of termination dated 6.2.1990 was illegal otherwise he was entitled to receive his arrears of Leave Encashment, Gross Provident Fund, Gratuity etc. Civil Judge ( Junior Division), Ambala City, vide judgment and decree dated 12.6.2007 dismissed the suit of the plaintiff. Aggrieved by the same, R.S.A.No. 3800 of 2008(O&M) {2} plaintiff preferred an appeal and the same was dismissed by District Judge, Ambala vide judgment and decree dated 18.10.2007. Hence, the present appeal. The facts of the case as noticed by the learned District Judge, in paras 2 and 3 of its judgment read as under:- “In brief, plaintiff filed suit with the allegations that plaintiff was employed in the year 1970 as helper and later promoted as Assistant Fitter. While serving the department, his services were terminated with the allegations of absence from duty from 1984 to 1988 on different occasions. Plaintiff was never heard and no opportunity of hearing was ever given to him before termination of his services. No notice was given to him before proceeding against him nor any procedure was adopted. Plaintiff served a demand notice and accordingly, reference being made, plaintiff could not conduct his case properly, the reference was answered against plaintiff. Plaintiff was submitted to have been terminated vide orders dated 16.12.1990 on account of absence on different dates as mentioned in plaint. No inquiry was stated to have been conducted and no cause of action was stated to have arisen, however, due to ill luck he could not pursue before the Labour Court and accordingly the reference sent to Labour Court, was decided holding the termination to be valid. It has R.S.A.No. 3800 of 2008(O&M) {3} further been submitted that plaintiff was not at fault, however, there was no order for non-payment of emoluments and his emoluments in the shape of Gratuity, G.P.Fund, arrears of salary and increments have not been paid. Thus, a notice dated 6.8.1997 was served upon defendants as salary and other emoluments were his fundamental right which defendants were bound to pay. Plaintiff was also entitled to interest on delayed payment. Plaintiff filed a civil suit claiming all these benefits, however, vide judgment dated 9.4.2003, case was dismissed for want of evidence. Plaintiff again served notice dated 9.4.2004, however, nothing being paid, again came up with a suit seeking mandatory injunction directing defendants to reinstate plaintiff as the order dated 6.2.1990 was illegal and otherwise also plaintiff being entitled for salary, leave encashment, G.P.Fund, Gratuity and other amounts with interest thereon. On notice being issued, defendants appeared and filed written statement raising preliminary objections regarding limitation and res judicata, submitting that plaintiff earlier filed a civil suit which was dismissed by the Court of Mrs. Rity Y.K.Behl, Addl. Civil Judge, Jagadhari vide judgment and decree dated 9.4.2003; the suit was also submitted to have been barred as reference no. 213 of 1991 before Labour Court R.S.A.No. 3800 of 2008(O&M) {4} was also decided against the plaintiff. Preliminary objections were also raised regarding proper valuation of suit as well as locus-standi. On merits, the facts of the plaintiff having remained in employment of defendants and his services being terminated have been admitted. It was submitted that plaintiff remaining absent from duty without leave on different occasions and being a habitual absentee was charge-sheeted. Enquiry Officer was appointed to hold enquiry. Plaintiff was afforded full opportunity to defend enquiry proceedings and opportunity of personal hearing was also afforded before his services were terminated vide orders dated 6.2.1990. It was submitted that termination was legal and valid. The demand notice being served, reference being made to Labour Court, Labour Court turned down reference and decided against the plaintiff. Plaintiff also filed a civil suit No. 1064 dated 27.2.1998 which was also dismissed on merits vide judgment dated 9.4.2003. It was denied that opportunity was not granted or that rules were not followed. Plaintiff was not stated to have moved any application for payment of GP Fund, therefore, it could not be forwarded to the Accountant General, Haryana, for necessary action. Thus, denying cause of action and other allegations, including entitlement of plaintiff to all R.S.A.No. 3800 of 2008(O&M) {5} benefits, dismissal of the suit was prayed.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiff is entitled for the decree to the effect that the order dated 6.2.1990 is illegal, null and void and against the principle of natural justice? OPP (2)Whether the plaintiff is entitled for all the consequential benefits if issue No. 1 is decided in his favour? OPP (3)Whether in alternative, the plaintiff is entitled for all the benefits already accrued to him ? OPP (4)Whether suit of the plaintiff is time barred? OPD (5)Whether suit of the plaintiff is hit by principle of res- judicata? OPD (6)Whether proper court fee has not been affixed? OPD (7)Whether the plaintiff has no locus standi to file the suit? OPD (8)Relief After hearing learned counsel for the appellant, I am of the opinion that no interference by this Court is called for in this appeal. Services of the plaintiff were terminated on 6.2.1990. However, he filed the present suit on 18.8.2005 i.e. after a gap of 14 ½ years. Moreover, it has been noticed by the courts below that the plaintiff had also sought a reference to the Labour Court challenging his termination order and the same was dismissed vide award dated 3.2.1995. Plaintiff also filed a civil suit in the Court of Civil Judge (Senior Division) Jagadhari on R.S.A.No. 3800 of 2008(O&M) {6} the same cause of action and the same was dismissed on 9.4.2003. Hence, the courts below had rightly held that the suit of the plaintiff was barred by principle of res judicata. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 22, 2009 PARAMJIT