Subhash Chand vs Bses Rajdhani Power Ltd. & Ors.
2014 Latest Caselaw 7134 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision: December 23, 2014

+     RSA 399/2014
      SUBHASH CHAND                                     ..... Appellant
                  Through:             Mr. A.Y Khan & Mr. Pankaj
                                       Aggarwal, Advocates

                         versus

      BSES RAJDHANI POWER LTD & ORS.      ..... Respondents
                   Through: Mr. Sandeep Prabhakar &
                            Mr. Vikas Mehta, Advocates for
                            respondent No.1-BSES
                            Mr. Sumit Chander, Advocate for
                            respondent No.2-GNCTD

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                        JUDGMENT

% (ORAL)

C.M.No.21189/2014 (u/S 5 of The Limitation Act r/w Section 151 CPC)

There is delay of 15 days in filing the accompanying appeal. Notice.

Mr. Sandeep Prabhakar, Advocate for respondent No.1-BSES and Mr. Sumit Chander, Advocate for respondent No.2-GNCTD accept notice of the application.

The averments made in paragraph No.2 of the instant application provide sufficient cause for the delay occasioned. The application is

RSA No. 399/2014 Page 1 allowed and delay is condoned.

Application is disposed of.

RSA 399/2014 Appellant has sought declaration that his voluntary retirement w.e.f. 31st December, 2003 from the post of Line Man is illegal and appellant's suit for declaration filed in the year 2011 has been held to be time barred by the trial court. The First Appellate Court in the impugned judgment has affirmed the findings of the trial court. The brief background of this case, as noticed in the impugned judgment, is as under:-

"3. The appellant/plaintiff had filed the suit for declaration and consequential relief stating therein that he was an employee with respondent No.1since 17.05.1982. On 18.12.2003, the scheme known as Special Voluntary Retirement Scheme-2003 was drawn up by the defendant no.1/ respondent no.1. The appellant/plaintiff in haste filled up the proforma and sent the same on 18.12.2003. This scheme was never circulated and known to the employees because the same was in English language. Thereafter on 24.12.2003, he immediately sent the application for withdrawal of this previous application seeking voluntary retirement. The respondent No.1 forcibly retired the appellant/plaintiff w.e.f. 31.12.2003. Thereafter, several representations and requests were made by the appellant/plaintiff w.e.f. 23.12.2003 to 27.05.2011 for cancellation of his SVR Scheme application. In his suit, the appellant/plaintiff had prayed for declaration to the effect that RSA No. 399/2014 Page 2 action of the defendants/respondents of retiring the plaintiff w.e.f. 31.12.2003 be declared as illegal and the appellant/plaintiff be restored with full back services."

At the hearing of this appeal, learned counsel for appellant had relied upon Apex Court decision in Hindustan Copper Ltd. & anr. AIR 2006 SC 3574 to submit that voluntary retirement could be withdrawn before it is accepted. Reliance was also placed upon Apex Court's decision in Bank of India & ors. Vs. O.P.Swarnakar & ors.(2003) 2 SCC 721 to assert that subject to certain just exceptions, even specific performance of contract by way of a direction for reinstatement of a dismissed employee is also permissible in law. Regarding the delay in filing the suit, learned counsel for appellant had relied upon Apex Court's decision in Collector, Land Acquisition Vs. Mst. Katiji & ors. AIR 1987 SC 1353 to submit that a liberal approach ought to be adopted in condoning the delay.

Lastly, it was submitted on behalf of appellant that appellant- plaintiff had filled up the proforma for voluntary retirement in haste and in view of ratio of decisions relied upon, the judgment of the courts below deserve to be set aside and appellant's suit ought to be decreed.

Learned counsel for respondents had supported the impugned judgment and the trial court decision and had submitted that at the time of relieving, appellant was paid all retirement benefits, which he had accepted without any protest and under the Special Voluntary Retirement Scheme-2003, appellant had received a sum of `7,00,000/- odd which he has not volunteered to return and in any case, the suit of appellant is RSA No. 399/2014 Page 3 hopelessly barred by time and both the courts below have rightly dismissed appellant's suit and there is no substance in the second appeal.

After having heard both the sides and on perusal of the judgment of the courts below and the decisions cited, I find that the decisions relied upon by the appellant are of no avail to the case of appellant because appellant's suit is hopelessly barred by time. The cause of action in favour of appellant arose in the year 2003 but the suit has been filed in the year 2011 i.e. much beyond the period of limitation. Even on merits, in terms of the Special Voluntary Retirement Scheme, appellant had retired on 31st December, 2003 and had received all his retirement dues without any prejudice and had also received the benefits under the Special Voluntary Retirement Scheme to the tune of `7,00,000/- and so, in the considered opinion of this Court, the concurrent findings returned against the appellant are not perverse and no substantial question of law arises in this second appeal.

Consequentially, this appeal and application are dismissed while leaving the parties to bear their own costs.

                                                        (SUNIL GAUR)
                                                          JUDGE

DECEMBER 23, 2014
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RSA No. 399/2014                                                    Page 4