Mr. Raju vs Union Of India And Another
2022 Latest Caselaw 8024 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 36
 

 
Case :- WRIT - A No. - 10722 of 2022
 

 
Petitioner :- Mr. Raju
 
Respondent :- Union Of India And Another
 
Counsel for Petitioner :- Braj Mohan Singh
 
Counsel for Respondent :- A.S.G.I.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Braj Mohan Singh, learned counsel for petitioner and Sri Dinesh Chand Tripathi, Advocate for respondents.

2. Petitioner is agitating his claim for pensionary benefits after a period of more than 17 years. Petitioner was compulsorily retired in pursuance of departmental proceedings vide order dated 26.02.2005 and appeal thereagainst was also dismissed in 2006.

3. Learned counsel for petitioner submits that petitioner is a labour, therefore, he is not able to understand the contents of letter as well as his right and he was under impression that issue of pensionary benefits were under consideration. He further submits that on 23.02.2019 a letter was communicated whereby it was informed that Appellate Authority has rejected his appeal on 08.04.2006, however, petitioner was under impression that his claim was still under consideration as referred in letter dated 30.11.2006.

4. Right of pension is a continuing right, however, the issue, whether delay of about 17 years could be condoned in the light of submission that petitioner was a labour and he was under bona fide impression that his claim was under consideration, has to be considered in the light of averments made in writ petition. In this regard relevant averments are in paras 6 and 9 of the writ petition, which are reproduced as under:

"6. That it is further submitted that the petitioner is a labour class therefore he is not able to know English language and he was raising his grievance before the respondent no. 2 through representation in Hindi but respondent no. 2 issued a letter dated 23.02.2019 to the petitioner. The language of the letter was in English therefore petitioner was unable to know the contents of the letter while he was in a impression that the matter with regard to the pension of the petitioner is being proceeded but when he show the letter to some other English knowing person then he came to know the letter have no recital with regard to the pension of the petitioner in the month of May 2nd week 2022.

The true copy of the letter dated 23.02.2019 is being filed herewith and marked as annexure no. 2 of this writ petition."

"9. That is is further submitted that the matter is relating to the pension of the petitioner therefore request to decided the representation earliest because due to delay the petitioner is being faced so much financial crisis while under the law he is entitled of pension."

5. There is no letter or any communication on record to show that petitioner was vigilant towards his right after he was compulsorily retired in the year 2005 till he received a letter dated 23.02.2019. Even after aforesaid letter there is only one communication which is in the form of representation and 21.05.2022. The petition is absolutely silent on the aspect of delay and in this regard it is relevant to reproduce paras 9, 10, 11, 12 and 13 of a recent judgment of Apex Court in Rushibhai Jagdishbhai Pathak vs. Bhavnagar Municipal Corporation, 2022 SCC OnLine SC 641, as under:

"9. The doctrine of delay and laches, or for that matter statutes of limitation, are considered to be statutes of repose and statutes of peace, though some contrary opinions have been expressed. The courts have expressed the view that the law of limitation rests on the foundations of greater public interest for three reasons, namely, (a) that long dormant claims have more of cruelty than justice in them; (b) that a defendant might have lost the evidence to disapprove a stale claim; and (iii) that persons with good causes of action (who are able to enforce them) should pursue them with reasonable diligence. Equally, change in de facto position or character, creation of third party rights over a period of time, waiver, acquiesce, and need to ensure certitude in dealings, are equitable public policy considerations why period of limitation is prescribed by law. Law of limitation does not apply to writ See Nav Rattanmal and Others v. State of Rajasthan, AIR 1961 SC 1704 State of Kerala and Others v. V. R. Kalliyanikutty and Another, (1999) 3 SCC 657 relying on Halsbury's Laws of England, 4th Edn., Vol. 28, para 605; Halsbury's Laws of England, Vol. 68 (2021) para 1005 petitions, albeit the discretion vested with a constitutional court is exercised with caution as delay and laches principle is applied with the aim to secure the quiet of the community, suppress fraud and perjury, quicken diligence, and prevent oppression. Therefore, some decisions and judgments do not look upon pleas of delay and laches with favour, especially and rightly in cases where the persons suffer from adeptness, or incapacity to approach the courts for relief. However, other decisions, while accepting the rules of limitation as well as delay and laches, have observed that such rules are not meant to destroy the rights of the parties but serve a larger public interest and are founded on public policy. There must be a lifespan during which a person must approach the court for their remedy. Otherwise, there would be unending uncertainty as to the rights and obligations of the parties. Referring to the principle of delay and laches, this Court, way back in Moons Mills Ltd. v. M.R. Mehar, President, Industrial Court, Bombay and Others, had referred to the view expressed by Sir Barnes Peacock in The Lindsay Petroleum Company AND. Prosper Armstrong Hurd, Abram Farewell, and John Kemp, in the following words:

"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."

10. At the same time, the law recognises a ''continuing' cause of action which may give rise to a ''recurring' cause of action as in the case of salary or pension. This Court in M.R. Gupta v. Union of India and Others, has held that so long as the employee is in service, a fresh cause of action would arise every month when they are paid their salary on the basis of a wrong computation made contrary to the rules. If the employee's claim is found to be correct on merits, they would be entitled to be paid according to the properly fixed pay-scale in future and the question of limitation would arise for recovery of the arrears for the past period. The Court held that the arrears should be calculated and paid as long as they have not become time-barred. The entire claim for the past period should not be rejected.

11. Relying upon the aforesaid ratio, this Court in the case of Union of India and Others v. Tarsem Singh, while referring to the decision in Shiv Dass v. Union of India and Others, quoted the following passages from the latter decision:

"8...The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third- party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

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10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. ... If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years."

12. In Tarsem Singh (supra), reference was also made to Section 22 of the Limitation Act, 1963, and the following passage from Balakrishna Savalram Pujari Waghmare and Others v. Shree Dhyaneshwar Maharaj Sansthan and Others, which had explained the concept of continuing wrong in the context of Section 23 of the Limitation Act, 1908, corresponding to Section 22 of the Limitation Act, 1963, observing that:

"31...It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury."

13. Accordingly, in Tarsem Singh (supra) it has been held that principles underlying ''continuing wrongs' and ''recurring/successive wrongs' have been applied to service law disputes. A ''continuing wrong' refers to a single wrongful act which causes a continuing injury. ''Recurring/successive wrongs' are those which occur periodically, each wrong giving rise to a distinct and separate cause of action. Having held so, this Court in Tarsem Singh (supra) had further elucidated some exceptions to the aforesaid rule in the following words:

"To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."

(Emphasis added)

6. As held in Rushibhai Jagdishbhai Pathak (supra) though the relief sought may be a continuing wrong, however, considering the long unexplained delay of more than 17 years, the claim sought cannot be adjudicated.

7. In view of above, this Court does not find any ground to grant relief sought in writ petition. Therefore, the prayers are rejected on the ground of delay and laches.

8. Writ petition is accordingly dismissed.

Order Date :- 26.7.2022

AK