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2011 DIGILAW 189 (PNJ)

Balwinder Singh v. Punjab State Electricity Board

2011-01-18

M.M.KUMAR, T.P.S.MANN

body2011
Judgment M.M.Kumar, J. 1. The instant appeal under Clause X of the Letters Patent is directed against order dated 14.10.2009 rendered by the learned Single Judge of this Court holding that the writ petitioner-appellant was not entitled to raise the plea of non-grant of increments as in the earlier writ petition filed by him, namely, CWP No. 2402 of 2005, decided on 21.2.2005, the relief was available but no such relief was claimed. Therefore, the learned Single Judge applied the principle of Order II Rule 2 of the Code of Civil Procedure, 1908 (for brevity, the Code) and held that a relief which should have been claimed and having not been claimed would be deemed to have been claimed and rejected. 2. The learned Single Judge also referred to an award dated 31.1.1997 (P-1) passed by the Labour Court, Patiala, in which the aforesaid relief stand already granted to the writ petitioner-appellant. He had earlier filed an application under Section 33-C(2) of the Industrial Disputes Act, 1947 (for brevity, the Act) and benefit of annual grade increments w.e.f. 1.1.1981 till the date of filing of the application before the Labour Court stood granted. The award further directed payment of arrears of increments to the writ petitioner-appellant. The fixation of pay in the revised pay scale was also ordered by the Labour Court. Accordingly, the relief in that regard was declined. 3. The other prayer made by the writ petitioner-appellant was that he was entitled to be considered for promotion on the post of Assistant Executive Engineer with effect from 28.6.2002 when his junior Shri Manjit Singh was promoted. The learned Single Judge repelled the aforesaid contention of the writ petitioner-appellant by holding that there is delay and laches. A reference has been made to the direction issued on 21.2.2005 by a Division Bench of this Court while disposing of C.W.R No. 2402 of 2005. It is appropriate to mention that on 21.2.2005 the aforesaid writ petition was disposed of directing the respondents to treat the legal notice as representation and decide the same as per law by passing speaking order within a period of two months. Accordingly, the legal notice sent by the writ petitioner-appellant was decided on 19.5.2005 (P-3). However, the writ petitioner-appellant preferred to maintain a blissful silence and could challenge the aforesaid order only by filing C.W.R No. 14958 of 2009, decided on 14.10.2009. Accordingly, the legal notice sent by the writ petitioner-appellant was decided on 19.5.2005 (P-3). However, the writ petitioner-appellant preferred to maintain a blissful silence and could challenge the aforesaid order only by filing C.W.R No. 14958 of 2009, decided on 14.10.2009. It is from the aforesaid order that the instant appeal has been filed. Accordingly, the learned Single Judge has held that the writ petitioner-appellant had challenged order dated 19.5.2005 (P-3) almost after a period of four years as the writ petition was filed somewhere in August/September 2009. 4. We have heard learned counsel for the parties at a considerable length and find that there is no merit in the claim made by the writ petitioner-appellant. On the first issue, no legal infirmity could be surfaced from the order passed by the learned Single Judge because the writ petitioner-appellant has already obtained benefit with regard to grant of annual grade increments w.e.f. 1.1.1981 by filing an.application under Section 33-C(2) of the Act. Even otherwise, learned Single Judge has rightly held that in any case if any part of the cause of action in respect of non-grant of increments had survived then it should have been claimed in CWP No. 2402 of 2005, which was disposed of on 21.2.2005. It is well settled policy of law that multiplicity of the proceedings should be avoided and if the relief was available to the writ petitioner- appellant when he filed the writ petition in 2005 then Order II Rule 2 of the Code would come in his way and he cannot claim that the relief could not be denied to him. Even in the rules governing the writ jurisdiction framed by this Court under Article 226 of the Constitution, known as Writ Jurisdiction (Punjab and Haryana) Rules, 1976 (for brevity, the Writ Rules), it has been provided by Rule 32 that all matters for which no provision is made by the Writ Rules, the provisions of the Code shall apply mutatis mutandis, insofar as, they are not inconsistent with the Writ Rules. A 5-Judge Bench of this Court in the case of Teja Singh vs. U. T. Chandigarh, 1982 PLR 161, has held that the provisions of the Code would apply in respect of those matters which have not been specifically dealt with by the Writ Rules. Accordingly, the provisions of Order II Rule 2 of the Code would apply. A 5-Judge Bench of this Court in the case of Teja Singh vs. U. T. Chandigarh, 1982 PLR 161, has held that the provisions of the Code would apply in respect of those matters which have not been specifically dealt with by the Writ Rules. Accordingly, the provisions of Order II Rule 2 of the Code would apply. We also find that the view taken by the learned Single Judge is un-exceptionable and does not merit interference by this Court. 5. The other ground for dismissing the writ petition filed by the writ petitioner- appellant is that he had a cause of action on 19.5.2005 when in pursuance of the direction issued by this Court the respondents have decided his legal notice on that date (P-5). However, the writ petition challenging that order was filed after a period of four years in August/September 2009, which is obviously beyond the period of more than four years. It is well settled that if an order passed by the public authorities have not been challenged in a writ petition within a period prescribed for filing of suit then the principle of limitation would apply. The period prescribed for challenging such order is three years. For the aforesaid proposition, reliance may be placed on a Constitution Bench judgment of Honble the Supreme Court rendered in the case of State of M.P. vs. Bhailal Bhai, AIR 1964 SC 1006. On this score also, the writ petition has been rightly dismissed and the judgment passed by the learned Single Judge does not warrant interference of this Court. There is, thus, no merit in the instant appeal warranting admission. 6. As a sequel to the above discussion, the instant appeal fails and the same is accordingly dismissed. Appeal dismissed