R.S.A.No. 1149 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1149 of 2008 Date of decision: 15.7.2009 Gurdev Singh ......Appellant Versus District Red Cross Society and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Bhupeshwar Singh Jaswal, Advocate with Mr.G.S.Jaswal, Advocate, for the appellant. **** SABINA, J. Plaintiff Gurdev Singh filed a suit for declaration and the same was dismissed by the Civil Judge (Jr.Divn.) Patiala vide judgment and decree dated 6.1.2006. In appeal, the said judgment and decree were upheld by the Additional District Judge, (Adhoc), Patiala vide judgment and decree dated 29.9.2007. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 3 and 4 of its judgment, are as under:- “Succinctly stated the facts of the case are that on 6.11.1974, the plaintiff joined the medical store, Read Cross-Society, Patiala and filed suit for a declaration that he is entitled to join his duty in terms of the joining report dated 17.4.1991 and is entitled to the slary from 1.7.1987 R.S.A.No. 1149 of 2008 2 to 31.7.1988 along with all the consequential benefits. It is further pleaded that Sh.S.K.Arora, PCS, the then Addl.Civil Judge, Senior Division, Patiala decided the suit vide judgment and decree dated 24.5.1999 by holding that the plaintiff was entitled to recover the salary w.e.f. 1.7.1987 to 31.7.1988. It is further pleaded that the plaintiff preferred an appeal against the judgment and decree dated 24.5.1999 and the Appellate Court of Sh.Inderjit Kaushik, vide its judgment and decree dated 5.4.2002 decided the appeal by holding that the plaintiff had not resigned from service. It was further held by the Court that the plaintiff was entitled to join his duty in terms of joining report dated 17.4.1991 and consequence of declaration granted through judgment and decree dated 5.4.2002 that plaintiff continued in service for all intends and purposes. It is further pleaded that vide order dated 7.7.2002, the plaintiff has been retired with retrospective effect from 31.5.1997 by granting Ex-Post Factor Sanction and the plaintiff having been retired from service is entitled to gratuity on account of the service rendered by him as well as contributory funds, leave encashent along with other retiral benefits. It has been averred that the defendants did not pay to the plaintiff his dues on account of his retirement, the plaintiff made R.S.A.No. 1149 of 2008 3 representations dated 29.4.2002, 26.7.2002 and 28.8.2002 to the defendants for the release of retiral benefits but to no effect. Thereafter, the plaintiff served legal notice dated 17.10.2002 upon the defendants by registered post but the defendants even did not respond to it. On the basis of the aforesaid facts, the plaintiff prayed for a decree as mentioned above. 4. Upon notice, defendants appeared and filed written statement in which they have admitted that the plaintiff was in the services of the defendants and had filed the earlier suit, it is also admitted that the plaintiff has retired from service w.e.f. 31.5.1997 vide order dated 7.7.2002. It has been asserted that the plaintiff has already received his retiral benefits. The defendants denied having received any representation and legal notice as alleged by the plaintiff. The defendants also raised objections that the suit is barred by time, that the Read Cross Society is not a State and is not instrumentality of the State, that the suit does not lie for declaration and that the contract of personal service cannot be specifically enforced. It has also been objected that the jurisdiction of the Civil Court is barred under the Industrial Dispute Act.” R.S.A.No. 1149 of 2008 4 On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled for decree of declaration to the effect that he is entitled to gratuity as per 4th Pay Commission report and other consequential benefits with interest as prayed for? OPP 2. Whether the suit is within time? OPP 3. Whether the suit is not maintainable as Red Cross Society is not State? OPD 4. Whether the Civil Court has no jurisdiction? OPD 5. Relief. ” After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for declaration to the effect that he was entitled to gratuity as per 4th Pay Commission report, leave encashment, proceeds of contributory funds, difference of balance of salary w.e.f.1.7.1987 to 31.7.1988 and the retiral benefits alongwith interest @ 18% per annum from 31.5.1997. The plaintiff had joined the medical store, Red Cross Society, Patiala on 6.11.1974. The plaintiff had submitted his resignation on 29.7.1988 but before its acceptance he withdrew it on 17.4.1991. The plaintiff filed a civil suit seeking declaration that he was entitled to join his duty in terms of joining report dated 17.4.1991 R.S.A.No. 1149 of 2008 5 and was entitled to salary from 1.7.1988 to 31.7.1988. Vide judgment and decree dated 24.5.1999, the plaintiff was held entitled to recover the salary for the said period. In appeal, decided on 5.4.2002, it was held that the plaintiff was entitled to join his duty in terms of joining report dated 17.4.1991 as if he had never resigned from service but he was not held entitled to recover any back wages on the principle of “No Work No Pay”. Vide order dated 7.7.2002, plaintiff was retired from service with retrospective effect from 31.5.1997. The case of the plaintiff was that despite representations, he was not paid his retiral benefits. On the other hand, the case of the defendants was that the plaintiff had already received the benefits of provident fund and gratuity till he worked with the society i.e. up to 31.7.1988, as per the Society Rules. Thus, the plaintiff had never worked with the society after 31.7.1988 and he had failed to establish that the 4th Pay Commission report had been adopted by the society. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiff. I do not find any illegality or irregularity in the impugned judgments which may give rise to any substantial question of law for consideration of this Court in second appeal. Accordingly, the present appeal stands dismissed. (SABINA) JUDGE July , 2009 anita