Delhi District Court
At Present vs Resident Commissioner on 21 January, 2015
IN THE COURT OF MS. CHARU AGGARWAL
SCJ/RC (CENTRAL), THC/DELHI
RCA No. 54/13
Abdul Rahim
S/o Abdul Rauf Khan
R/o 2, Kotla Lane, New Delhi - 2
At present :
H.No. 395, Block20
Trilok Puri, Delhi91 ..... Appellant
Vs.
1. Resident Commissioner
J&K Government
5, Prithvi Raj Road,
New Delhi1
2. Government of Jammu & Kashmir
Through its Chief Secretary
Civil Secretariat Jammu
...... Respondents
Date of institution : 01.10.2013
Date of decision : 21.01.2015
JUDGMENT
1. This is a regular civil appeal filed by the appellant challenging the order dt. 7.9.2013 of Ld. Trial Court whereby civil suit bearing no. 63/13 filed by appellant for mandatory injunction was dismissed.
2. The appellant hereinafter shall be referred as plaintiff and respondent shall be referred as defendant.
Page 1 of 93. The plaintiff had filed a civil suit for mandatory injunction against defendants. The case of the plaintiff was that he was appointed as Farash in the pay scale of Rs.630 - 940/ in J&K Guest House, 5, Prithvi Raj Road, New Delhi on 12.5.1981 but since the day of his appointment, the plaintiff was assigned the duty of waiter/table boy in the guest house. It is stated that plaintiff also has sufficient documentary proof to show that he since the day of his appointment was doing the work of waiter/table boy. The plaintiff has placed on record various appreciation letters by the guests who visited the J&K Guest House and duty roster of the Guest House. The case of the plaintiff is that since the day of his appointment he was doing the work of waiter/table boy whose pay scale is Rs. 8001500/, however, defendants did not make payment to the plaintiff as per the work assigned to him by defendants. It is also alleged that plaintiff was also not given seniority as per the entitlement of the plaintiff.
4. It is stated that the plaintiff was promoted to the post of table boy w.e.f. 18.5.1991 vide office order no. 145 KRC of 91 instead of treating him waiter/table boy since 12.5.1981 i.e. the date of his appointment.
5. It is also alleged that various persons appointed with the plaintiff in May 1981 were promoted to the post of waiter/table boy and shown senior to the plaintiff. It is further stated that plaintiff is well qualified person despite that he was given step motherly treatment by the defendants. Regarding all of his grievances the plaintiff made several representations to the Page 2 of 9 defendants and finally issued legal notice dt. 23.1.2007 to defendant requesting for making payment of all the arrears in the scale of waiter/table boy and give him seniority but the said notice was not replied by the defendants, hence, civil suit was filed by plaintiff before Ld. Trial Court by making a prayer that defendants be directed to pay all the arrears to the plaintiff in the pay scale of waiter since the date of his appointment i.e. on 12.5.1981 and also to give him seniority from the date of appointment of plaintiff.
6. In the written statement filed by defendants, the defendants raised objection regarding maintainability of the present suit in the Civil Court alleging that only a Labour Court has jurisdiction to try this matter. The defendants also raised objections regarding limitation.
7. On merits, the contention of the defendants is that plaintiff was never appointed as waiter/table boy but he was appointed as Farash by defendants on 12.5.1981 and that too as a temporary employee only for a month, however, his appointment was extended time to time. The plaintiff became regular employee vide order no HP/TA5/89 dt. 24.4.1989 with retrospective effect from 12.5.1981. It is stated that in terms of office order no. 145 KRC of 91 the plaintiff was promoted to the post of waiter/table boy on 19.6.1991. Hence, defendants had prayed for dismissal of the civil suit.
8. Replication was filed by the plaintiff before Ld. Trial Court reiterating and reaffirming the same facts as mentioned by him in his civil suit.
Page 3 of 99. The following issues were framed by Ld. Trial Court vide order dt. 21.5.2009.
(i) Whether the plaintiff is entitled to the arrears as claimed ? OPP
(ii) Whether the plaintiff is entitled to the seniority as claimed ? OPP
(iii) Whether the suit is not maintainable in present form ?
OPD
(iv) Relief.
10. In order to prove their case/defence both the parties have examined one witness each. The plaintiff examined himself as PW1 and defendant examined one Sh. Mehraj Ahmed, Sr. Asstt. in the office of defendants as DW1. Witnesses of both the parties were crossexamined by each others Counsels. Witnesses of both the parties reiterated and reaffirmed the same contentions as stated in the respective pleadings of the parties.
11. The plaintiff (PW1) has proved the following documents in his evidence :
(i) Duty rosters as Ex.PW1/1 to Ex.PW1/7
(ii) Appreciation certificates dt. 2.8.1986 and 17.11.1986 Ex.PW1/8 and Ex.PW1/9
(iii) Office order dt. 18.6.1991 whereby he was promoted at the post of waiter/table boy as Ex.PW1/10
(iv) Office order dt. 30.7.1991 Ex.PW1/11
(v) Various representations made by plaintiff w.e.f. May 1986 to 9.8.1991 Ex.PW1/12 to Ex.PW1/18.
Page 4 of 9(vi) Legal notice dt. 23.1.2007 Ex.PW1/19
(vii) Proof of delivery of legal notice dt. 23.1.07 as Ex.PW1/20 and Ex.PW1/21.
(viii) Representations sent by plaintiff to defendants dt.30.5.2007 as Ex.PW1/22
12. The defendants have also relied upon the same documents as of plaintiff i.e. a letter whereby plaintiff was regularized, letter dt. 19.6.1991 whereby he was promoted and joining report dt. 19.6.1991 of the plaintiff as Ex.DW1/2. After considering the entire evidence and pleadings of the parties, Ld. Trial Court vide impugned order dt. 7.9.2013 dismissed the suit of the plaintiff holding that the suit of the plaintiff is barred by law of limitation.
13. I have heard Ld. Counsels for both the parties and perused the entire trial court record as well as the impugned judgment and decree of the trial court.
14. The trial court vide impugned order dt. 7.9.2013 has decided only issue no.3. The impugned order dt.7.9.2013 shows that the issue no.3 was regarding the maintainability of the suit in its present form in which the Ld. Trial Court dealt two points first regarding jurisdiction of the civil court and second regarding limitation. The issue of jurisdiction was decided by Ld. Trial Court in favour of plaintiff, however, issue of limitation was decided against the plaintiff. The Ld. Trial Court vide impugned order dt. 7.9.2013 held that the suit of the plaintiff is barred by law of limitation.
Page 5 of 915. The case of the plaintiff is that he was appointed with the defendants as Farash w.e.f. 12.5.1981 in the pay scale of Rs. 630940/, however, since the date of his appointment, he was assigned duties of waiter/table boy whose pay scale is Rs. 8001500/. It is further stated that since the date of his appointment the plaintiff had been assigned the work of waiter/table boy despite that the defendants always paid him salary and benefits of Farash. The plaintiff regarding his grievances also gave various representations to the defendants which are Ex.PW1/12 to Ex.PW1/18. It is further stated by plaintiff that he was promoted at the post of waiter/table boy in the June 1991 and only thereafter the defendants paid him benefits and salary of waiter/table boy but plaintiff was entitle for the same w.e.f 12.5.1981 i.e. date of his appointment. The plaintiff has also stated that during the period from 1981 to 1991 he also received various appreciation letters from the guests who visited the guest house. The said appreciation letters are proved by plaintiff as Ex.PW1/8 to Ex.PW1/9. The plaintiff has alleged that he was not even given seniority as per his entitlement, therefore, the case of the plaintiff is that he is entitled for the salary and benefits of waiter/table boy w.e.f. 1981 and accordingly promotions should also be given to him as per his entitlement. The contention of the defendants is that plaintiff was appointed as Farash on temporary basis. Thereafter he was regularised vide letter Ex.PW1/10. Plaintiff was promoted as waiter/table boy in June 1991 vide Office order dt. Ex.PW1/10 and Page 6 of 9 thereafter only he was entitle for the pay scale of waiter/table boy which was also given to him.
16. Admittedly, plaintiff was appointed on 12.5.1981 with the defendants on the post of Farash in the pay scale of Rs.630940/. The plaintiff has alleged that since the date of his appointment he was assigned services of waiter/table boy but he was not given benefits according to services taken from him from defendants. Regarding his grievances the plaintiff also sent various representations to the defendants which are Ex.PW1/12 to Ex.PW1/18. Finally on 18.6.1991 he was promoted at the post of waiter/table boy. The plaintiff in order to substantiate his contention has placed on record 6 representations Ex.PW1/12 to Ex.PW1/18 in which he has made the request from the defendants to promote him at the post of waiter/table boy. All the 6 representations Ex.PW1/12 to Ex.PW1/18 placed on record by the plaintiff show that the same pertains to the year 1986 to 1991. Admittedly the plaintiff was promoted in June 1991, thereafter, the plaintiff did not give any representations to the defendants regarding his grievances for the pay scale of waiter/table boy for the period w.e.f. 12.5.1981 till 1991. It is evident that plaintiff after his promotion in 1991 has acquised into the acts and omissions, if any, on the part of either of the parties, therefore only he did not pursue his representations made by him vide Ex.PW1/12 to Ex.PW1/18 and remained silent till January 2007 when he sent legal notice to defendants.
Page 7 of 917. In the civil suit the plaintiff had prayed that defendants be directed to give him benefits and pay scale of waiter for the period w.e.f. 12.5.1981 till 1991. Article 113 of Limitation Act lays down the period of limitation for the suits where no period for limitation is provided. As per Article 113 the period of limitation for those suits for which no limitation is provided is 3 years from the date of right to sue occurs. The plaintiff is claiming benefits for the period w.e.f. 1981. Hence, the right to sue to file present suit occurs to the plaintiff on 12.5.1981 and again on June 1991, however, the present suit has been filed by the plaintiff in the year 2013. As per Article 113 of Limitation Act, the present suit is hopelessly time barred. The Ld. Trial Court has rightly observed that issuing of legal notice does not give rise to cause of action particularly for the purpose of limitation as legal notice should be issued within a period of limitation provided under Limitation Act and if legal notice is not so issued within the said period then a party cannot extend limitation by serving a legal notice.
18. In view of aforesaid discussion, I hereby hold that Ld. Trial Court has rightly dismissed the suit of the plaintiff and I find no infirmity in the order of Ld. Trial Court. Hence, the present appeal is dismissed.
19. TCR be sent back.
20. Appeal file be consigned to Record Room.
Announced in open court. (Charu Aggarwal) 21.01.2015 SCJ/RC (Central),THC/Delhi Page 8 of 9 Page 9 of 9