IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 671 of 2009 Date of Decision : September 24, 2009 Ali Mohd. Conductor No. 308 ....Appellant Versus State of Haryana, etc. .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Satish Chaudhary, Advocate T.P.S. MANN, J. Suit for declaration filed by the plaintiff/appellant that he was entitled to full pay and allowances for the suspension period from 19.2.1990 to 2.5.1990 alongwith its arrears and interest, was dismissed by the learned Civil Judge (Junior Division), Gurgaon, on 5.3.2008, which judgment and decree was upheld by the learned Additional District Judge, Gurgaon, on 25.8.2008 when the first appeal filed by the plaintiff was dismissed. He is now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure. The services of the plaintiff were terminated by General Manager, Haryana Roadways, Gurgaon for the reason that he had to take Bus No. 1896 from Nuh to Uttawar but he always used to take his bus before time and also quarrelled and misbehaved with the Inspector, who made the complaint against him. On the basis of which an enquiry was conducted against him and the Enquiry Officer held him guilty of the R.S.A. No. 671 of 2009 -2- charge. However, he filed an appeal which was decided by the State Transport Commissioner, Haryana, by reinstating him in service but the period for which he remained out of service was ordered to be treated as leave without pay and his two increments were stopped with cumulative effect. The plaintiff then filed a suit wherein he challenged the aforesaid action of the defendants in treating the period for which he remained out of service as leave without pay and stopping his two increments with cumulative effect. That suit was decreed by the learned Sub Judge Ist Class, Gurgaon, on 23.8.1994. The cause of action in the present suit was available to the plaintiff when he filed the earlier suit. The judgment dated 23.8.1994 (Ex.DW1/A) which has been taken on record in the present appeal vide order dated 15.9.2009 was silent about the relief of pay and allowances for the suspension period from 19.2.1990 to 2.5.1990. In view of the provisions of Order II Rule 2 of the Code, the plaintiff shall be deemed to have relinquished the said relief. Under these circumstances, the present suit was not maintainable. Moreover, the cause of action had arisen on 24.4.1991 when the departmental appeal filed by the plaintiff against the termination of his services was disposed of by the State Transport Commissioner. The relief in the present suit could be claimed within a period of three years. However, the present suit was filed in the year 2006. It was hopelessly time barred. R.S.A. No. 671 of 2009 -3- In view of the above, the concurrent findings arrived at by the learned Courts below are not open to challenge in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as formulated by the appellant, arises for determination. The appeal is, therefore, dismissed in limine. ( T.P.S. MANN ) September 24, 2009 JUDGE ajay-1