Jai Bhagwan vs Pec Ltd
2014 Latest Caselaw 6730 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+    W.P.(C) 8835/2014 and CM APPL. 20271-20273/2014

                                                    Decided on: 12.12.2014

IN THE MATTER OF:
JAI BHAGWAN                                             ..... Petitioner
                       Through: Dr. Nirmal Chopra, Advocate

                       versus

PEC LTD                                                    ..... Respondent

Through: None

CORAM HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)

1. The petitioner herein seeks directions to the respondent/PECL to

restore the medical facilities to him in terms of the Voluntary Retirement

Scheme (in short 'VRS').

2. The present case has a chequered history. As per the averments

made in the writ petition, the petitioner was working on the post of

Office Manager in the respondent/PECL since the year 1992. On

07.07.2000, the petitioner submitted his resignation to the

respondent/PECL. As per the petitioner, the respondent/PECL had

refused to accept his resignation. However, the averments made in the

petition reveals that on 04.10.2000, while still in the service of the

respondent/PECL, the petitioner had joined the Excise and Taxation

Department, Government of Haryana, as a Taxation Inspector, under the

name, J.B. Parashar. On 03.01.2001, the respondent/PECL had

introduced VRS for its employees and the petitioner applied under the

said Scheme on 15.01.2001. On 17.01.2001, the petitioner was relieved

from the service of the respondent/PECL.

3. It is the case of the petitioner that all the employees, who were

granted VRS, were entitled to medical facilities for self and spouse under

the Scheme, but on 26.02.2002, the respondent/PECL had abruptly

stopped extending the benefit of medical facilities to him, and the same

was duly communicated by the respondent/PECL vide letter dated

01.04.2002, stating inter alia that as per the information received from

the Haryana Government, the petitioner had taken employment as

Taxation Inspector in the office of the Deputy Excise and Taxation

Commissioner, Haryana in October, 2000 when he was still in the

employment of the respondent/PECL and had remained so till January,

2001, thereby illegally getting employed with two different government

organizations in the same period.

4. Aggrieved by the aforesaid order, the petitioner had filed a writ

petition in this Court, registered as W.P.(C)4646/2003. As none had

appeared on behalf of the petitioner on 27.08.2003, the aforesaid

petition came to be dismissed. While passing the order dated

27.08.2003, the Court did not grant any liberty to the petitioner to file a

fresh petition on the same cause of action. Admittedly, in all these years,

the petitioner did not take any steps to have the aforesaid petition

restored to its original position by filing an application. As a result, the

said order has attained finality.

5. In the year 2002, the respondent/PECL instituted a civil suit for

recovery of money, injunction and declaration against the petitioner in

the District Court, registered as Suit No.193/2002 that was dismissed by

a speaking order on 06.09.2004. Aggrieved by the aforesaid decision,

the respondent/PECL preferred an appeal in the High Court, registered

as RFA No.553/2004, which was dismissed vide judgment dated

27.05.2009. The aforesaid dismissal order was challenged by the

respondent/PECL before the Supreme Court on 24.08.2009 and the

same came to be finally dismissed on 17.09.2014.

6. A perusal of the aforesaid decisions reveals that the same were

contested by the petitioner at every stage and therefore, it is not as if he

would have remained unaware of the order dated 27.08.2003 passed in

W.P.(C) 4646/2003, wherein he had laid a challenge to the order dated

01.04.2002 passed by the respondent/PECL, denying him medical

facilities under the Scheme.

7. Counsel for the petitioner states that the petitioner had

approached the Supreme Court directly for assailing the very same order

dated 1.4.2002 by filing W.P.(C) 998/2014, which was listed on

05.12.2014. On the said date, learned counsel for the petitioner had

sought leave to withdraw the said petition with liberty to approach the

High Court. Learned counsel explains that it is in these circumstances

that the present petition has been filed.

8. At the outset, it has been enquired from learned counsel for the

petitioner as to how would the present petition be maintainable, when

the earlier writ petition filed by the petitioner based on the very same

cause of action and asking for the same relief came to be dismissed on

27.08.2003, and no steps whatsoever were taken by the petitioner for

the past over one decade for seeking review of the said order or by filing

an application for restoration of the said petition.

9. Learned counsel for the petitioner submits that he has elected to

file the present petition in view of the order dated 05.12.2014 passed by

the Supreme Court, whereunder, while dismissing his petition, he had

been granted liberty to approach the High Court.

10. A perusal of the order dated 05.12.2014 does not bear testimony

to the aforesaid submission. The said order has only recorded the

submission as made by counsel for the petitioner that he be given liberty

to approach the High Court and the said liberty, as prayed for, was

granted. No observation has been made in the said order with respect

to the maintainability of the said petition.

11. It is next submitted by learned counsel for the petitioner that in all

these years, the petitioner has been waiting for a finality to be attached

to the decision rendered by the trial court in the civil suit instituted by

the respondent/PECL against him in the year 2002, for recovery of

money, injunction, declaration etc. and therefore, it must be construed

that the cause of action had arisen in his favour only after the order

dated 17.09.2014 was passed by the Supreme Court in the appeal filed

by the respondent/PECL.

12. The aforesaid submission is also found to be misconceived in view

of the fact that the civil suit was instituted by the respondent/PECL some

time in the year 2002 and in the very next year, i.e., in the year 2003,

the petitioner had taken steps to file a writ petition to assail the order

dated 01.04.2002, which is now sought to be impugned afresh in the

present proceedings. Therefore, it cannot be urged that the petitioner

was patiently waiting for the outcome of the suit for recovery instituted

by the respondent/PECL against him or that the cause of action would

have got deferred till a final decision was taken in the appeals against

the decision of the trial court. This is all the more apparent from the fact

that the petitioner had not waited for the outcome of the aforesaid suit

instituted by the respondent/PECL against him when he had elected to

approach the High Court in the year 2003 by filing W.P.(C) 4646/2003

for the very same relief as is being sought after over a decade, in the

present proceedings.

13. In view of the aforesaid facts and circumstances, this Court is not

inclined to exercise its discretion in favour of the petitioner by

entertaining the present petition, which would be barred by constructive

res judicata, apart from being hopelessly barred by limitation. The

petition is accordingly dismissed in limine alongwith the pending

applications.

14. Needless to state that this order shall not preclude the petitioner

from seeking restoration of W.P.(C) 4646/2003, that was dismissed in

default on 27.08.2003, as per law.

                                                   (HIMA KOHLI)
DECEMBER 12, 2014                                     JUDGE
rkb/mk