R.S.A.No. 2421 of 1996` 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2421 of 1996 Date of decision: 10.11.2009 Dhiraj Singh ......Appellant Versus Haryana State Electricity Board .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. P.S.RanaAdvocate, for the appellant. Mr.Manohar Lall, Advocate, for the respondent. **** SABINA, J. Plaintiff-Dheeraj Singh filed a suit for declaration, which was decreed by the Sub Judge III Class, Karnal vide judgment and decree dated 30.1.1993. In appeal, the said judgment and decree were set aside aside by the Additional District Judge, Karnal vide judgment and decree dated 6.5.1996 and the suit of the plaintiff was dismissed. Hence, the present appeal by the plaintiff. The case of the parties, as noticed by the learned District Judge, in para Nos. 2 and 3 of its judgment reads as under:- R.S.A.No. 2421 of 1996` 2 “ 2. The plaintiff had filed a suit for declaration alleging that he joined the services of the defendants board as Cook-cum-Chowkidar with effect from 31.12.1970. The plaintiff was brought on regular establishment with effect from 21.10.1977. The services of the plaintiff were terminated and the matter was then raised as an industrial dispute before the Labour Officer, Panipat, vide demand notice dated 30.4.1979. The defendant management agreed to reinstate the plaintiff as per the agreement before the Labour Officer on 4.7.1979. The pay of the plaintiff was protected which he was drawing as work charge. The pay was refixed and recovery was effected. Since the required relief was not given by the defendants despite various requests, hence this suit. 3. The defendants contested the suit and filed their written statement alleging that this court has no jurisdiction and that the plaintiff has not come with clean hands before this court. It has been submitted that the plaintiff was appointed as Cook-cum-chowkidar on 31.12.1976 and not on 31.12.1970 as alleged. The plaintiff was reverted to the post of work charge Chowkidar and again appointed as Chowkidar on regular basis on 25.9.79. The pay of the plaintiff was provisionally fixed at Rs.345/- with effect from 1.4.79 subject to verification by the Chief R.S.A.No. 2421 of 1996` 3 Accounts Officer. The Chief Accounts Officer fixed the pay of the plaintiff at Rs.330/- with effect from 26.7.1979 with next increment on 1.7.1980. So, the case of defendants is that the pay of the plaintiff was rightly fixed and he has no case in his favour. Rest of the pleas of the plaintiff were denied. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to pay protection with all consequential relief?OPP 2. Whether this court has got no jurisdiction to adjudicate the matter in dispute ?OPD 3. Whether the plaintiff has not come to the court with clean hands ?OPD 4. Whether the plaintiff has no cause of action against the defendants?OPD 5. Relief.” The lis involved in the present case is as to whether the pay of the plaintiff could be re-fixed without following due procedure of law. The substantial question of law involved in this case is “whether the impugned judgment and decree of the learned Additional District Judge are illegal ?” Admittedly, the plaintiff was brought on regular R.S.A.No. 2421 of 1996` 4 establishment of the defendants w.e.f. 21.10.1977 as Cook-cum- Chowkidar. His services were terminated and before the Labour- cum-Conciliation Officer, an agreement took place between the plaintiff and the defendants. The plaintiff was taken back in service as Work Charge Chowkidar. Vide order dated 25.7.1979 Ex.P-2, plaintiff was brought on regular post of Chowkidar with immediate effect and the said order reads as under:- “In view of compromise made on 4.7.1979 in Labour Court, Panipat Sh.Dheeraj Singh, Cook-cum-Chowkidar reverted to the post of W/C Chowkidar vide this office order No.406 dated 5.10.1978 is hereby brought on the regular post of Chowkidar with immediate effect and posted in (S) Division, Panipat. The period of absence shall be treated leave of the kind due to him.” A perusal of letter Ex.P-3 written by Executive Engineer, City Division HSEB, Panipat to Chief Accounts Officer, Pay Fixation, HSEB, Chandigarh reveals that when the plaintiff was taken on duty as regular Chowkidar w.e.f. 26.7.1979, the pay of the plaintiff was protected. The pay of the plaintiff was admittedly fixed at Rs.345/- w.e.f. 26.7.1979 and the date of next increment was to be w.e.f. 1.1.1979. However, the Accounts Branch re-fixed the pay of the plaintiff as Rs. 330/- w.e.f. 26.7.1979 with the date of next increment as 1.7.1980. No order in this regard was passed and communicated R.S.A.No. 2421 of 1996` 5 to the plaintiff. The pay of the plaintiff could not be re-fixed without following the due process of law. Learned counsel for the appellant has submitted that the suit of the plaintiff was not time barred. It was a case of recurring cause of action as the plaintiff was getting less salary each month. Moreover, no order had been passed and communicated to the plaintiff, whereby his pay was re-fixed. Learned counsel for the respondent, on the other hand, has submitted that the suit filed by the plaintiff was time barred. In support of his arguments, learned counsel has placed reliance on the decision of the Apex Court in State of Punjab and others vs. Gudev Singh , AIR 1991 Supreme Court 2219, wherein, it was held as under:- “A suit for declaration that an order of dismissal or termination from service passed against the plaintiff dismissed employee is wrongful, illegal or ultra vires is governed by Article 113. It cannot be said that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that the dismissal or discharge was void or inoperative. If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article. The purpose of the residuary article is to provide for cases which could not be covered by any other provision R.S.A.No. 2421 of 1996` 6 in the Limitation Act. The party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court with the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be allowed. In the present case, no order with regard to the re-fixation of pay was ever communicated to the plaintiff. There is no dispute that where an order has been passed and a declaration has to be sought challenging the legality of the order, the suit has to be filed within a period of three years of the passing of the impugned order. However, the decision of the Apex Court in Gurdev Singh’s case supra is not applicable to the facts of the present case as in the present case, no order was passed and communicated to the plaintiff regarding re-fixation of pay. In fact, in the present case, the plaintiff has a recurring cause of action because every month he got less salary on account of his wrong fixation of pay. Although at the time of regularization of the services of the plaintiff, his pay was protected yet the Accounts department re-fixed the pay of the plaintiff from Rs.345/- to Rs.330/-. The claim to be paid the correct salary computed on the basis of proper fixation, is a right which subsists R.S.A.No. 2421 of 1996` 7 during the entire tenure of service and can be exercised at any time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. The pay of the plaintiff should have been re-fixed in terms of the protection granted to him at the time of regularization of his services. The same could not have been unilaterally re-fixed by the defendants without affording any opportunity to the plaintiff. The defendants even did not communicate any order passed by them regarding re-fixation of pay to the plaintiff. In these circumstances, the Additional District Judge has erred in holding that the suit of the plaintiff was time barred or that the plaintiff was not entitled to pay as fixed by the defendants initially @ Rs.345/-. Hence, the substantial question of law that arises in this case stands answered accordingly. Consequently, this appeal is allowed. The impugned judgment and decree passed by the lower Appellate Court are set aside and the judgment and decree passed by the trial Court are upheld. (SABINA) JUDGE November 10, 2009 anita