Atul Kumar Srivastava And 2 Others vs State Of U.P. And 3 Others
2015 Latest Caselaw 1768 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 

 
Case :- WRIT - A No. - 45021 of 2015
 

 
Petitioner :- Atul Kumar Srivastava And 2 Others
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Shamimul Hasnain,Mohd. Azam
 
Counsel for Respondent :- C.S.C.,Ayank Mishra
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Sri Shamimul Hasnain, learned counsel for the petitioner, Sri Ayank Mishra, learned counsel for respondents no. 2, 3 and 4 and Sri Mata Prasad, learned Additional Chief Counsel for the respondent no.1.

The petitioner in this writ petition is seeking quashing of the order dated 27.4.2015 whereby his claim for arrears of salary and other allowances from 25.11.1992 has been rejected. It is being contended by the learned counsel for the petitioner that certain employees at the relevant point of time had approached the Labour court through adjudication Case No. 167 of 1992 in which there was an award on 30.7.1994. The said award was challenged in the High Court by the respondent-department in writ petition no. 2099 of 1995 which was dismissed by order dated 31.8.2001 and therefore the award has become final. The petitioner was not a party to proceedings before the Labour Court. After the award was given he filed writ petition no. 9170 of 2015 in respect of his claim and the said writ petition was disposed of by order dated 16.2.2015 with the direction to the respondents to consider the petitioner's representation and it is in pursuance of the order of the court that the impugned order dated 27.4.2015 has been passed.

In my opinion the claim for arrears of salary and allowances for the period from 25.11.1992 is clearly barred by laches and merely because there was an adjudication by the Labour Court on 30.7.1994 in respect of other persons and the writ petition was dismissed by the High Court on 31.8.2001 will not give fresh cause of action to the petitioner to maintain this writ petition. The claim of the petitioner is a stale claim and the writ petition is clearly barred by laches.

In (2007) 2 SCC 725, A.P. Steel Re-Rolling Mill Ltd. vs. State of Kerala & others, the Supreme Court in para 40 has held as under:-

"40. The benefit of a judgement is not extended to a case automatically. While granting relief in a writ petition, the High Court is entitled to consider the fact situation obtaining in each case including the conduct of the petitioner. In doing so, the Court is entitled to take into consideration the fact as to whether the writ petitioner had chosen to sit over the matter and then wake up after the decision of this Court. If it is found that the appellant approached the Court after a long delay, the same may disentitle him to obtain a discretionary relief. (See Chairman, U.P. Jal Nigam v. Jaswant Singh.)"

In (2006) 11 SCC 464, Chairman, U.P. Jal Nigam vs. Jaswant Singh, it has been held by the Supreme Court in Para 12 and Para 16 as under:-

"12. The statement of law has also been summarized in Halsbury's Laws of England, para 911, p. 395 as follows:

"In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

(i) acquiescence on the claimant's part; and

(ii) any change of position that has occurred on the defendant's part.

Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."

"16. Therefore, in case at this belated stage if similar relief is to be given to the persons who have not approached the Court that will unnecessarily overburden the Nigam and the Nigam will completely collapse with the liability of payment to these persons in terms of two years' salary and increased benefit of pension and other consequential benefits. Therefore, we are not inclined to grant any relief to the persons who have approached the Court after their retirement. Only those persons who have filed the writ petitions when they were in service or who have obtained interim order for their retirement, those persons should be allowed to stand to benefit and not others."

In (1989) 2 SCC 541, Paluru Ramkrishnaiah and others vs. Union of India and another, it has been held by the Supreme Court in Paras 16, 17 and 18, as follows:-

"16. It may also be noticed that even though the petitioners on their completion of 2 years' service as Supervisor ' A' were not promoted as Chargeman II in or about the year 1966 they chose to wait for about 17 years to file these writ petitions which were filed in 1983, and nearly 2 years even after the decision dated February 2, 1981 in Civil Appeal No. 441 of 1981, which indicates that but for the decision in Civil Appeal No. 441 of 1981 they would perhaps not have even thought of filing these writ petitions inasmuch as in the meantime they had not only been promoted in the normal course as Chargeman II but some of them had been promoted even to higher posts in the hierarchy.

17. For aught we know if the effect of the order dated December 28, 1965 and the circular dated January 20, 1966 had been properly emphasised at the time of hearing of Civil Appeal No. 441 of 1981 its result may have been different. In this connection, reference may also be made to the counter-affidavit of Sobha Ramanand, Deputy Director, Ordnance Factory Cells G. Block, Ministry of Defence, filed in Writ Petition (Civil) Nos. 3812-19 of 1983 with regard to a matter relevant for promotion. In paragraph 2(i) it has been stated that during 1962-63 due to sudden expansion of Ordinance Factories Organisation in the wake of Chinese aggression a large number of posts of Chargeman II and other posts were created and as a result thereof persons already in service as Supervisors 'A' were promoted to the posts of Chargeman II on completion of 2 years' service. It has further been stated therein that after the newly created posts were thus filled by promotion, chances of promotion of those who were appointed subsequently diminished and for want of sufficient number of vacancies as Chargeman II they could not be promoted to that post soon after the completion of 2 years' service. There is a further averment in the said counter affidavit that petitioners were duly considered in their turn and their names were brought on the approved panel. They were thereafter promoted as soon as vacancies became available and that during the period that they were on the approved panel no person junior to them or of equal seniority superseded them. Nothing substantial has been brought to our notice on behalf of the petitioners on the basis of which the aforesaid statements made in the counter affidavit may be doubted.

18. In view of the foregoing discussion, we find it difficult to grant the reliefs prayed for in the aforesaid writ petitions simply on the basis of the judgment of this Court dated February 2, 1981 in Civil Appeal No. 441 of 1981. These writ petitions, therefore, deserve to be dismissed."

Merely because the impugned order has been passed by the respondents in pursuance of the direction of the High Court would also not give a fresh cause of action to the petitioners.

In the case of C. Jacob V. Director of Geology and Mining and another (2008) 10 SCC 115 wherein the Supreme Court has held that for the purposes of limitation the Court has to see as to when the original cause arose and in any case no fresh cause of action arise on the decision of the representation. The Supreme Court in paragraphs 9, 10, 11 and 14 held as under:-

"9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any `decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to `consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to `consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.

10. Every representation to the government for relief, may not be replied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the department, the reply may be only to inform that the matter did not concern the department or to inform the appropriate department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.

11. When a direction is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits, being under the impression that failure to do may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of acknowledgment of a jural relationship' to give rise to a fresh cause of action.

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14. We are constrained to refer to the several facets of the issue only to emphasise the need for circumspection and care in issuing directions for "consideration". If the representation on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing "consideration" of such claims."

The writ petition is therefore dismissed on the ground of laches.

Order Date :- 12.8.2015

Akram