RSA No. 2304 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 2304 of 2011 (O&M) Date of decision : 19.9.2011 ... State of Haryana and others ................Appellants vs. Janak Raj .................Respondent Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Rajiv Malhotra, Additional Advocate General, Haryana. ... K.C. Puri, J. Challenge in the present appeal is to the judgment and decree dated 14.10.2010 passed by Sh. Ravi Kumar Sondhi, Additional District Judge, Karnal, vide which the appeal preferred by the defendant-appellants, against the judgment and decree dated 18.3.2010 passed by Sh. Surender Kumar, Civil Judge (Junior Division), Karnal, was dismissed. Briefly stated, plaintiff – Janak Raj filed suit for declaration alongwith consequential relief of mandatory injunction to seek salary RSA No. 2304 of 2011 -2- w.e.f. 1.9.2007 to 16.12.2007 i.e. compulsory waiting period for which he has not been disbursed the salary alongwith annual increments w.e.f. May 2000 alongwith arrears of pay, increments and the plaintiff is also entitled to salary w.e.f. 6.1.2001 to 11.1.2001 and further the plaintiff is to be treated in continuous service for the purpose of pay and calculation of pension and pensionary benefits, alongwith consequential relief of mandatory injunction directing the defendants to disburse the salary w.e.f. 1.9.2007 to 16.12.2007, 6.1.2001 to 11.1.2001 and grant of annual increment w.e.f. May 2000 till May 2008 alongwith penal interest. It was further prayed that defendant may be directed to treat the plaintiff in continuous service w.e.f. 23.5.1996 to the age of superannuation i.e. 28.2.2009. Briefly, the facts of the case are that plaintiff was appointed as Welfare Organiser on 23.5.1996 and was posted at Zila Sainik Board, Yamuna Nagar. The plaintiff was transferred to Zila Sainik Board, Karnal on 15.12.1996 where he remained posted up to 6.1.2001. It has been further pleaded that on account of personal enmity, the Head Clerk office of Zila Sainik Board, Karnal under a conspiracy forwarded the resignation of plaintiff to the Secretary, State Solider Board, Haryana, Sainik Board, Panchkula. When the plaintiff came to know about this fact, he immediately wrote a letter to the Secretary, District Sainik Board as well as to the Secretary, State Soldier Board, Panchkula, informing that the resignation so forwarded was managed under a conspiracy and the plaintiff had no intention to resign from his job. The Secretary, Solider Board, Haryana, visited the office of District Solider Board, Karnal and RSA No. 2304 of 2011 -3- inquired about the facts of resignation. However, before the plaintiff could join his duties at Rohtak, the plaintiff was informed that his resignation has been accepted on 11.1.2001. The plaintiff filed a Civil Suit at Civil Courts, Karnal and the same was dismissed vide judgment and decree dated 31.10.2006 passed by Sh. R.N. Bharti, Civil Judge, Karnal. The plaintiff filed an appeal against the said judgment dated 31.10.2006 and the appeal was accepted by the Court of Sh. P.L. Ahuja, District Judge, Karnal vide judgment and decree dated 17.8.2007. The defendants were directed to reinstate the services of the plaintiff and held that the order dated 11.1.2001 vide which the resignation was accepted, was illegal. The plaintiff was reinstated on 16.12.2007 as per judgment and decree dated 17.8.2007. The plaintiff was kept on compulsory waiting period w.e.f. 17.8.2007 to 16.12.2007 and has not been disbursed any salary for the said period. It has been further pleaded that as the order 11.1.2001 was held to be illegal, therefore, the plaintiff was entitled to the grant of annual increments fell due on 23.5.2000 and after granting due increment, the plaintiff was also entitled to fixation of pay at Rs.5150/- as on 23.5.2007. It has also been pleaded that since the plaintiff has been reinstated in service, so the entire services of the plaintiff w.e.f. 23.5.1996 to the age of superannuation i.e. 28.2.2009 is to be treated as continuous for the purpose of fixation of pay and calculation of pension and pensionary benefits. The defendants have not granted these benefits despite repeated requests made by the plaintiff. A legal notice dated 23.4.2008 was served upon the defendants, but no action has been taken. Hence, the suit. RSA No. 2304 of 2011 -4- Notice of the suit was issued to the defendants, who filed written statement taking preliminary objections that the suit is barred under Section 10 of the CPC. It is pleaded that plaintiff himself sent his resignation letter dated 5.10.2000 addressed to Secretary, Zila Sainik Board, Karnal, which was forwarded to Secretary, Rajya Sainik Board, Haryana, Panchkula. The resignation of the plaintiff was accepted by Secretary, Rajya Sainik Board, Haryana, Panchkula vide order dated 11.1.2001 as per request of the plaintiff. The suit filed by the plaintiff challenging the order dated 11.1.2001 was dismissed vide judgment and decree dated 31.10.2006 passed by Sh. R.N. Bharti, Civil Judge, Karnal. It is pleaded that plaintiff was reinstated in the service on 16.12.2007 after due completion of procedure in view of the judgment and decree dated 17.8.2007 passed in appeal by the Court of Sh. P.L. Ahuja, District Judge, Karnal. The judgment and decree dated 17.8.2007 clearly shows that the plaintiff was not held entitled to any pay and allowances, during the period for which he did not work. The plaintiff was not entitled to get pay fixation on 1.1.2003 as he was not in service on that day. The plaintiff was reinstated in service as per the said judgment and decree dated 17.8.2007 but he could not be treated in continuous service because the plaintiff was not held entitled for any pay and allowances for the period during which he did not work as per said judgment and decree. Replication to the written statement was filed denying the contents of the written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were RSA No. 2304 of 2011 -5- framed:- 1. Whether the plaintiff is entitled to a decree for declaration as prayed for? OPP. 2. If issue No.1 is proved whether the plaintiff is entitled for relief of mandatory injunction as prayed for? OPP. 3. Whether the plaintiff has no locus standi and cause of action to file the present suit? OPD. 4. Whether the suit of the plaintiff is not properly valued for the purpose of Court fee and jurisdiction? OPD. 5. Relief. The trial Court, after appraisal of the evidence, partly decreed the suit of the plaintiff. It was held that the plaintiff be treated in continuous service for the purpose of fixation of pay and calculation of pension and pensionary benefits w.e.f. from his date of appointment i.e. 23.5.1996 to the age of superannuation i.e. 28.2.2009. It was further held that the plaintiff is entitled to due annual increments w.e.f. May 2000 to May 2008 for the purpose of fixation of pay, calculation of pension and pensionary benefits. A decree for mandatory injunction directing the defendants to release the pensionary benefits of plaintiff within three months of passing of the judgment after fixation of pay and due increments from May 2000 to May 2008 was also passed. However, the plaintiff was held not entitled to any pay, allowances and arrears of said due increments for the period he did not work i.e. from 11.1.2001 to 16.12.2007 in view of ‘no pay no work’ decision passed in judgment and decree dated 17.8.2007. RSA No. 2304 of 2011 -6- Feeling dissatisfied with the said judgment, the defendants preferred the Ist Appeal. The same came up for hearing before Sh. Ravi Kumar Sondhi, Additional District Judge, Karnal and vide judgment dated 14.10.2010, the said appeal was dismissed. Still feeling dissatisfied with the judgment and decree dated 14.10.2010 passed by Sh. Ravi Kumar Sondhi, Additional District Judge, Karnal, and the judgment and decree dated 18.3.2010 passed by Sh. Surender Kumar, Civil Judge (Junior Division), Karnal, the present regular second appeal has been filed. The appellants in paragraph No. 7 of the grounds of appeal have mentioned that following substantial questions of law have arisen in the present appeal for consideration:- i)Whether the judgment and decree passed by the Ld. First Appellate Court is sustainable in the eyes of law? ii)Whether a plaintiff respondent is entitled to withdraw his resignation after it has already been accepted? Vide order dated 23.5.2011, the appellants were directed to place on record the copy of judgment and decree dated 17.8.2007. In compliance to the said direction, the appellants, vide C.M. No. 9234 C of 2011 have filed the application for placing on record a copy of the judgment dated 17.8.2007. The said judgment is taken on record. From the perusal of the above said judgment dated 17.8.2007, it is revealed that the appeal preferred by the plaintiff , now respondent, against the judgment dated 31.10.2006 passed by Sh. R.N. Bharti, Additional Civil Judge (Senior Division), Karnal, was accepted, and a decree for declaration to the effect that letter RSA No. 2304 of 2011 -7- dated 11.1.2001 is illegal, null and void, arbitrary, ineffective, inoperative and not binding on the rights of the plaintiff, was passed. A decree for mandatory injunction directing the defendants to reinstate the services of the plaintiff, as per his entitlement, was also passed. However, the plaintiff was held not entitled to any pay and allowances during the period he did not work. It was further observed that defendants shall be entitled to take departmental action against the plaintiff –appellant for misconduct/misbehavior during his duty. That judgment has become final between the parties. So, the resignation letter is held to be invalid. Both the Courts below have rightly held that consequence of withdrawal of this letter is that the plaintiff is entitled to increment, which would have been accrued on due dates to the plaintiff and shall be entitled to be given annual increments for the period of above service for purpose of fixation of pay, calculation of pension and pensionary benefits etc. So, the learned State counsel could not point out as to how the finding of fact recorded by both the Courts below in this regard is wrong. Otherwise also, the finding of fact recorded by both the Courts below cannot be interfered. The controversy of withdrawing the resignation has already been decided in the earlier litigation between the parties. There is nothing on the file that judgments of both the Courts below are not sustainable in the eyes of law. So, I have no hesitation in holding that no question of law, much less substantial question of law has arisen in the present appeal. Consequently, the appeal is without any merit and the same stands dismissed. RSA No. 2304 of 2011 -8- A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 19.9.2011 Judge chugh