Punjab-Haryana High Court
Dinesh Kumar Sharma vs The Managing Director M/S Mobility ... on 15 January, 2013
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
R.S.A. No. 3489 of 2012
Date of decision: January 15, 2013
Dinesh Kumar Sharma
.. Appellant
Vs.
The Managing Director M/s Mobility Solutions Limited
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Jagdish Singh Tanwar, Advocate for the appellant.
A.N. Jindal, J
Dinesh Kumar Sharma appellant-plaintiff (herein referred as,
'the plaintiff') having resigned from the service of the private firm M/s
Mobility Solutions Limited (herein referred as the defendant), filed a suit
for declaration to the effect that the plaintiff is entitled to the following
amounts :-
Salary for the month of July, 2005 : Rs.35,000/-
LTAfrom April, 2005 to July 2005
@ Rs.1`,500/- : Rs.6,000/-
Bonus @ Rs.2129/- : Rs.29,806/-
Award/team reward for 2004-05 : Rs.13,500/-
Notice pay for three months : Rs.35,353/-
promised but paid only Rs.13,000/-
(Rs.48353-13000)
Expenses four times from Gurgaon : Rs.14,000/-
to Lalru Police station by taxi and incidentals
charges in addition to mental harassment and
loss of reputation.
_______________
Total Rs.1,33,659/-
The said suit was contested by the defendant and it was
submitted that no promise was made by the company to pay three months
notice pay to the previous employer. The plaintiff had served for more than
R.S.A. No. 3489 of 2012 -2-
***
one year and no such demand was raised by him during that period. He was also paid Rs.11,500/- as transportation charges for bringing his house hold goods from Baroda to Ambala. The plaintiff had submitted the forged consigner copy of Tushar Freight Carrier and had increased the amount of Rs.9,000/-. His services were regularized by the company by giving him annual increments. However, he abruptly absented from the work place w.e.f. 1.8.2005 without assigning any reason. The suit was a counter blast to the criminal case registered against him. A specific legal plea was also raised that the suit for recovery of the amount of Rs.1,33,659/- was not maintainable.
The trial court, vide judgment dated 3.5.2008, had decreed the suit for recovery of Rs.35,000/- as salary for the month of July, 2005. The defendant had appealed against the said judgment, whereupon the appellate court had directed the plaintiff to pay court fee on the amount allowed by the trial court on the plaint as well as memo of appeal within one month. Feeling dis-satisfied, the defendant preferred regular second appeal which was allowed and this court had accepted the appeal and remitted the case back to the first appellate court to decide the appeal on merits including the question with regard to the maintainability of the suit for declaration.
The first appellate court accepted the appeal and dismissed the suit of the plaintiff while holding that the suit for declaration as filed by the plaintiff was not maintainable and could not be converted into a suit for recovery and only suit for recovery is maintainable.
Having heard the learned counsel for the appellant, it transpires that the suit for recovery as well as suit for declaration are quite distinct and different in their nature and scope. The rights which accrued under some agreement or contract of service and in case of any right which had accrued for recovery of such specific amount, then only suit for recovery was maintainable and not suit for declaration. The suit for declaration could be filed only for declaring or recognizing a pre-existing right but suit for recovery is the enforcement of right created by him by virtue of any work, contract or service, but here in this case, there is no dispute that the R.S.A. No. 3489 of 2012 -3- *** plaintiff was the employee of the defendant and he claimed the amount which he earned due to service contract, therefore, suit for recovery and not for declaration, is maintainable.
No substantial question of law arises for determination. Dismissed.
January 15, 2013 (A.N. Jindal) deepak Judge