V K SAYAL Vs. BHARAT HEAVY ELECTRICAL LTD

JUDGEMENT

(1.) THE defendant has filed this application under Order 7 Rule 11 CPC for rejection of the plaint primarily on two grounds. The first is that the suit is barred by law of limitation and the second is that the suit is barred by the principles of res-judicata. The reliefs prayed in the suit are as follows:

(2.) ACCORDING to the plaintiff, he was employed with the Defendant No. 1 vide recruitment letter dated 8. 7. 1975 initially as Senior Engineer (Material management ). He was promoted to the post of DGM (Administration) w. e. f. 25. 6. 1991. The plaintiff applied for voluntary retirement in the year 2000 while in the service of the defendant. This application was rejected on 28th august 2000 on the ground that disciplinary proceedings for absence without leave were contemplated against the plaintiff. The plaintiff preferred Civil writ Petition No. 5359/2000 to challenge the rejection his application for voluntary retirement. On 14th September 2000, the court while entertaining the aforesaid Writ Petition passed an order, inter-alia, observing "any action in the direction of holding departmental inquiry by the Respondent shall be without prejudice to the rights and contention of the parties in the Writ Petition. " eventually, the Writ Petition was dismissed by a detailed judgment by a learned Single Judge of this Court 4th May 2001. The plaintiff preferred an LPA bearing No. 289/2001. The said appeal came up before the Hon'ble Division Bench on 11th June 2001. While issuing notice in the LPA, the court, inter alia, observed "in the meantime, any action taken by the Respondent in the departmental proceedings adjudicated against the appellants, will be subject to further orders in the application. Dasti. " Ultimately, the aforesaid LPA was dismissed by the Hon'ble Division Bench on 9th December 2004 as having become infructuous. The SLP against the order in LPA, preferred by the plaintiff herein was also dismissed by the Hon'ble Supreme Court on 7th July 2006.

(3.) LEARNED Counsel for the applicant/defendant submits that the cause of action for challenging the order passed by disciplinary authority as well as appellate authority dismissing the departmental appeal first accrued on 6. 7. 2001 and 18. 09. 2001 respectively when the said orders were passed. The suit has been filed only in the year 2006. Period of limitation for filing a suit seeking relief of declaration under Article 58 to the schedule of the Limitation Act is 3 years and the time begins to run when the right to sue first accrues. It is contended that the right of sue first accrued when the aforesaid orders were passed. Similarly, the order rejecting the application for voluntary retirement was passed on 28. 08. 2000 and the same could have been challenged within a period of 3 years from the date of passing of the said order since the right to sue in respect of the said order first accrued on 28. 08. 2000. Even if the case is treated as covered by the residuary of Article 113 of the Schedule to the limitation Act, the period of limitation prescribed is 3 years, and the time begins to run when the right to sue accrues. The right to sue accrued in respect of the order or dismissal and the appellate orders when they were passed, since they were given effect to immediately upon their being passed. Similarly, the order rejecting the application seeking voluntary retirement was given effect immediately on it being passed, since the plaintiff was continued to be treated as in service and was not relieved from his services. It is further argued that the challenge to the rejection of the application for voluntary retirement has been adjudicated on merits by the writ court and consequently that decision would operate as res judicata so far as second relief, as prayed in the suit, is concerned.