R.S.A. No. 3619 of 2006 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3619 of 2006 (O&M) Date of decision: 5-8-2010 State of Punjab and Others ......... Appellants Vs Darbara Singh .........Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Mr. P.C.Goyal, Additional Advocate General, Punjab, for the appellants Mr. Sandeep Kumar Sharma, Advocate, for the respondent HARBANS LAL, J. This appeal is directed against the judgment/decree dated 20.3.2006 passed by the court of learned Additional District Judge, Rupnagar whereby he accepted the appeal reversing the judgment/decree dated 29.7.2004 rendered by the learned trial Court and decreed the suit of the plaintiff to the effect that the basic pay of the plaintiff is to be considered as Rs.70/- plus Rs.35/- as dearness allowance per month with effect from 20.2.1962 and accordingly his pay is revised w.e.f. 20.2.1962 and he is entitled to get the consequential benefits in the shape of arrears for the period of only three years and two months prior to the filing of the suit. The minimal facts are that the plaintiff was appointed as driver in Patiala and East Punjab State Union (for short 'PEPSU') and he continued serving at Patiala. His basic pay was Rs.70/- plus Dearness Allowance of R.S.A. No. 3619 of 2006 (O&M) 2 Rs.35/-. On merger of PEPSU into the State of Punjab, he became the employee of the latter. On his being relieved from the office of Divisional Inspector, Local Bodies, Patiala, he joined at Hoshiarpur. As per entries in his service book, he was drawing basic pay as well as dearness allowance at the aforesaid rates. Subsequently, a cutting was made in that entry and his pay was fixed at Rs.60/- plus dearness allowance of Rs.40/-. Another entry was made in his service book, whereby his pay was fixed as Rs.130/-(basic pay Rs.90/- plus dearness allowance Rs.40/-) on the basis of the notification dated 1.3.1960 issued by Punjab Government. That he was entitled to get revised pay scale i.e. Rs.70/- as basic pay and Rs.30/- as dearness allowance w.e.f. 20.2.1962. He made representations to the defendants to revise his pay scale as stated above, but the defendants did not initiate any action. He remained working as driver in P.W.D. (B&R) Department and retired at the age of 60 years. Thereafter also, the defendants failed to revise his pay scale w.e.f. 20.2.1962. On these allegations, this suit has been filed for declaration to the effect that he is entitled for the benefit of revision of salary from time to time as well as grade of Rs.70/- as basic pay and Rs.35/- as dearness allowance w.e.f. 20.2.1962 and cutting of the entry in his service book showing Rs.60/- as basic pay and Rs.40/- as dearness allowance is illegal and he is entitled to interest at the rate of 18% per annum. The defendants in their joint written statement inter alia pleaded that the suit is time barred, that the plaintiff has no cause of action to file the present suit as he has retired from service in the year 1989 with all R.S.A. No. 3619 of 2006 (O&M) 3 benefits as per Punjab Civil Service Rules. However, it has been admitted that he was appointed as driver in the PEPSU which when merged in the State of Punjab, he became the employee of the Punjab State and that he was getting Rs.70/- as basic pay and Rs.35/- as dearness allowance on 27.8.1956 in the PEPSU as per entries in his service book. He had joined at Hoshiarpur on 17.2.1962 in the office of the Executive Engineer as a driver. That when he became the employe of the Punjab State in consequence of merger of PEPSU with the Punjab State, the pay scale for the post of driver was Rs.60/- as basic pay and Rs.40/- as dearness allowance as per Punjab Government Finance Department Notification dated 21.1.1969. That no pay scale was revised in the year 1960 and hence, no benefit can be given to the plaintiff. The entry in his service book as alleged fixing his salary was made inadvertently. On the pleadings of the parties, the following issues were framed by the learned trial Court:- 1. Whether plaintiff is entitled to declaration as prayed for?OPP 2. Whether suit is within time?OPP 3. Whether no notice under Section 80 CPC given by the plaintiff before filing the suit?If so, its effect?OPD 4. Relief After examining the evidence and hearing the learned counsel for the parties, the learned trial Court dismissed the suit as noticed at the outset. Feeling aggrieved therewith, the plaintiff went up in appeal, which was accepted by the court of learned Additional District Judge, Rupnagar in R.S.A. No. 3619 of 2006 (O&M) 4 the terms as noticed at the outset. Being dissatisfied therewith, the defendants have preferred this appeal. The following substantial questions of law arise for determination in this appeal:- 1. Whether the suit is barred by limitation? 2. Whether the plaintiff-respondent was entitled to the declaration as prayed for? I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Mr. P.C.Goyal, learned Additional Advocate General, Punjab strenuously urged that the suit of the plaintiff-respondent was time barred, which fact has been erroneously overlooked by the lower Appellate Court as the plaintiff had retired from the Government Service in the year 1991 though the suit was filed in the year 2002 which is obviously after long period of 11 years. On the date, when he retired from service, he had received all the retiral benefits which has also been admitted by him during his cross-examination when he appeared as PW-1. He could have sought the declaration regarding revision of salary within three years from the date of retirement. Thus, the suit is hopelessly time barred and it was rightly dismissed on this ground by the learned Additional Civil Judge(Senior Division) Ropar. When he became the employee of Punjab Government, the basic salary of drivers in the State of Punjab was Rs.60/- and it was because of this reason that his basic pay being a driver was fixed at Rs.60/- plus Rs.40/- as dearness allowance on the basis of Notification dated 21.1.1969. R.S.A. No. 3619 of 2006 (O&M) 5 As such, he was not entitled to get basic pay of Rs.70/- and Rs.35/- as dearness allowance from 20.2.1962. In response, Mr. Sandeep Kumar Sharma, Advocate on behalf of the respondent-plaintiff maintained that recurring cause of action accrues to the plaintiff every month as and when he draws his pension and that being so, it does not lie in the mouth of the defendants-appellants to contend that the suit is barred by limitation. He further puts that there is no gain- saying the fact that while in PEPSU the plaintiff was drawing Rs.70/- as basic pay plus Rs.35/- as dearness allowance. As per service rules, on merger of PEPSU with Punjab State, the salary of the erstwhile employees of PEPSU has to be protected but shockingly enough that the same has been reduced to Rs.60/- as basic pay. These contentions merit acceptance for the discussion to follow hereunder:- In paragraph No.7 of the plaint, it has been averred with specificity that the plaintiff has given representations to the defendants, but of no use. The examination-in-chief of the plaintiff as PW-1 has been tendered by way of affidavit Ex.PW-1/A. In paragraph No.6 of this affidavit, he has solemnly affirmed that he has given representations to the defendants, but of no avail and in the succeeding paragraph, it has been affirmed that the cause of action arose to the plaintiff on 28.8.2000 when the letter was received from the defendants and from the date of the notice dated 7.8.2002 served and received by the defendants. A meticulous perusal of his cross-examination would reveal that he has not been touched on these point at all by the adversaries. It is an accepted rule of law that in the R.S.A. No. 3619 of 2006 (O&M) 6 absence of cross-examination on any fact appearing in the examination-in- chief, such fact shall be deemed to have been admitted by the opponent. Thus, the above facts appearing in Ex.PW-1/A shall be deemed to have been admitted by the defendants-appellants. To add further to it, in view of the fact that the plaintiff has been drawing his pension every month, the cause of action accrues to him every month. Besides this, as ruled in Mangat Rai Vs. State of Punjab and Others 2000(2) Recent Services Judgments 293 (P&H) “the pensionary benefits are civil rights of an employee. These furnish a recurring cause of action to an employee. His genuine claim of pension etc. should not be declined by the government on technical grounds or under the garb of limitation.” Thus, from whichever angle the matter may be viewed, there can be no escape from the finding that the suit is not barred by limitation. Consequently, the first substantial question of law stands answered against the defendants-appellants and in favour of the plaintiff- respondent. Under the stress of cross-examination, DW-1 Mohinder Singh, Senior Assistant of the office of Executive Engineer, Construction Division PWD (B&R) Ropar has admitted that at the time of merger of PEPSU with Punjab State, the salary of Darbara Singh (referring to the plaintiff- respondent) was reduced from Rs.70/- to Rs.60/- regarding which no notification was issued. It surfaces in his further cross-examination that the department made the entry reducing the pay of the plaintiff from Rs.70/- to Rs.60/- for the reason that the grade of Punjab Government was Rs.60-3-90. In his next breath, he has admitted that at that time, the PEPSU grade was R.S.A. No. 3619 of 2006 (O&M) 7 Rs.70/- on the basis of the entries in the service book. This own evidence of the defendants-appellants goes in favour of the plaintiff. The pay which the plaintiff-respondent was already drawing has to be protected. Thus, the second substantial question of law is also decided against the defendants- appellants and in favour of the plaintiff-respondent. As a sequel of the above discussion, the findings returned by the lower Appellate Court warrant no inference and are affirmed. Hence, this appeal is dismissed being devoid of any merit. In the peculiar facts and circumstances of the case, the parties are directed to bear their own costs. Since the main appeal has been decided, all Civil Miscellaneous, if any, also stand disposed of. (HARBANS LAL) JUDGE August 5, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No