RSA No.4709 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4709 of 2009 Date of decision: 19.7.2010 Madan Lal and others ......Appellant(s) Versus Punjab State Electricity Board ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. L.S. Bhangu, Advocate for the appellants. Rakesh Kumar Garg, J. (Oral) This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby their suit for declaration that they were entitled to the revised pay scale of Rs.6100-9400 w.e.f 1.1.1996 and also subsequent time bound promotional scale after 9 and 16 years of service in terms of pay scale, was dismissed. As per the averments made, the appellants were working as Charge-men in Thermal Plant Bhatinda. They were granted grade of Rs.430-800 from the date of their promotion as Charge-men whereas regular Charge-men discharging the same duties were getting grade of Rs.700-1200 w.e.f 1.1.78 and Rs.1640-3000 w.e.f. 1.1.86. They had filed a separate suit which was pending claiming the aforesaid relief. The Government further revised the pay scale w.e.f. 1.1.96 and had granted time bound promotional pay scale after 9 and 16 years of service. According to the appellants, they were entitled to the same on the principal of equal pay for equal work and the action of the respondents in not granting the same was illegal. RSA No.4709 of 2009 2 Upon notice, the respondent contested the suit by filing written statement raising various preliminary objections including that the in view of the earlier suit, the present suit was hit by the provisions of Order 2 Rule 2 CPC. On merits, it was submitted that the appellants were not entitled to the grade as claimed, as per rules and regulations of the Board. Instance of equal pay for equal work mentioned in para 4(i) to 4(xii) of the pay were denied to be applicable in the case of the appellant. Dismissal of the suit was prayed for. The plaintiffs filed replication controverting the allegations made in the written statement and reiterating the facts as stated in the plaint. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the plaintiffs are entitled to revised pay scale of Rs.6100-9400 w.e.f. 1.1.1996? OPP 2. Whether the plaintiffs are entitled to revised grade after 9 and 16 years of service? OPP 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Whether the previous suit on same cause of action is pending? 5. Whether the plaintiffs are estopped from filing the present suit due to their own act and conduct? OPD 6. Whether the plaintiffs have no cause of action to file the present suit? OPD 7. Whether the suit is bad for misjoinder of cause of action? OPD 8. Relief.” RSA No.4709 of 2009 3 While denying the claim of the appellants, the trial Court held that the plaintiffs were claiming benefit of the work-charge service on the basis of their regularization which was not permissible as the order to make regular work-charge was prospective and cannot be made effective from the back date. Not only this, the trial Court also found that the relief claimed vide instant suit was available to the appellants at the time of filing of the earlier suit and therefore, the present suit was hit by Order 2 Rule 2 CPC. Appeal preferred by the plaintiffs against the aforesaid judgment and decree of the trial Court was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 16.4.2009 holding that there was no infirmity or illegality in the judgment and decree of the trial Court. The relevant paragraph of the judgment of the Lower Appellate Court reads as follows:- “A perusal of the record does show that the appellants/plaintiffs Madan Lal Subodh Kumar and Piara Singh, while working as chargeman in Thermal Plant Bhatinda had filed earlier suit which was decreed to the effect that they were entitled to the grade of Chargeman at the scale of Rs.700-1200 from the date of their appointment as Chargeman by promotion and entitled to the revised grade w.e.f. 1.1.1986 and subsequent revised grade at the rate of Rs.1800-3200 as provided to the regular chargeman. However, the Court had made clear that they were only entitled to pay of chargemen from the date of their respective promotion as chargemen. In the instant suit also, the plaintiffs have prayed for grant of revised pay scale of Rs.6100-9400 RSA No.4709 of 2009 4 w.e.f. 1.1.96 and also subsequent revised grade after 9 and 16 years in terms of revision of their pay scales. Order 2 Rule 2 CPC provides that every suit must include the whole of the claim to which the plaintiff is entitled in respect of the cause of action and where the plaintiff omits to sue for or intentionally relinquishes any portion of his claim, he shall not afterwards be allowed to sue in respect of the portion so omitted or relinquished. It was the duty of the appellants/plaintiffs to add the relief claimed in this suit in the earlier suit filed by them, which was decreed vide judgment and decree dated 27.4.2002. Now when the plaintiffs have omitted not to add the claim in this suit the claim of the earlier suit to the effect that they are entitled to the revised time bound pay scale, then, they are specifically barred from adjudicating the same by way of present suit. So the present suit of the appellant/plaintiffs is not maintainable in the present form and, as such, they are not entitled to revised pay scale of Rs.6100-9400 w.e.f. 1.1.1996 and the revised grade after their completion of 9 and 16 years of service. In this way, the learned trial Court has rightly decided issues No.1, 2 and 3 against the plaintiffs and in favour of the defendants/respondents. Although the learned trial Court has decided issue No.4 against the defendants but in the course of this appeal, the judgment and decree dated 27.4.2002 has been placed on the record showing that the appellants/plaintiffs had filed earlier suit against the respondents/defendants RSA No.4709 of 2009 5 which was pending at the time of filing of the present suit on 16.5.2000, as the earlier suit was filed on 8.4.99 and was decided on 27.4.2002. So, this issue is decided against the appellants/plaintiffs and in favour of the respondents/defendants. The learned trial court has rightly decided issues No.6 and 7 as the plaintiffs have not no cause of action as they had already filed a suit on the same cause of action.” Still not satisfied, the appellants have approached this Court submitting that the following substantial question of law arises in this appeal: “ Whether the courts below were justified to deny the due benefits to appellants ignoring the view of the decision in RSA No.3479 of 1997 titled as Punjab State Electricity Board v. Balbir Singh and Jagtar Singh etc. and decision in RSA No.4663 of 2003 titled as Punjab State Electricity Board v. Krishan Kumar and Others?” At the outset, it may be mentioned that the learned counsel for the appellants could not challenge the findings of the Courts below with regard to question of present suit being hit by the provisions of Order 2 Rule 2 CPC. In RSA No.3479 of 1997 & 4663 of 2003 the claim of the employees was that they are entitled to pay scale of Rs.700-1200 from the date of their appointment as Chargemen. Whereas in the present case they are claiming revised pay scale w.e.f 1.1.1996 with time bound promotional scale after 9 years & 16 years of service and their claim for grant of pay scale of Rs.700-1200 is pending in earlier suit. RSA No.4709 of 2009 6 Moreover, a Division Bench of this Court in Hanumant Singh and Others v. State of Haryana and Others 2008 (4) SCT 427, has held that ad hoc/work-charge service followed by regular service shall not be counted for the purposes of grant of higher pay-scale/benefit of scheme of 8/18 years of service. Thus, no substantial question of law arises in this appeal. Appeal is devoid of any merit and the same is dismissed. July 19, 2010 (RAKESH KUMAR GARG) ps JUDGE