Mahesh Chand Sharma vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 704 Del

JUDGMENT

Hima Kohli, J.

1. The present petition has been filed by the petitioner praying inter alia for a writ, order or direction in the nature of mandamus directing the respondents to release to the petitioner, all benefits including arrears of pay for the period of September 1996 to 10th August, 2000 and to treat this period as on duty.

2. Before proceeding to deal with the petition on merits, it is desirable to mention brief facts leading up to the present petition. The petitioner joined the Department of Telecommunication on 19th November, 1977 as a technician. Respondent No. 2, Mahanagar Telephone Nigam Limited (MTNL) was constituted in the year 1986 and the petitioner was transferred to MTNL on deemed deputation. In September 1996, the petitioner was transferred from Karol Bagh Exchange to Delhi Cantt. Telephone Exchange. However, the petitioner joined service only on 10th August, 2000 at Delhi Cantt. and was not paid the salary and other benefits for a period of four years, i.e. with effect from September, 1996 to August, 2000.

3. Learned Counsel for the petitioner submitted that the petitioner could not join service at Delhi Cantt pursuant to his transfer order because the Divisional Engineer Telephone at Delhi Cantt. Exchange refused to take him in service on the ground that there was no post/vacancy of Technical Supervisor available in the said telephone exchange. It is further alleged by the counsel that thereafter the petitioner again reported for duty at Karol Bagh, but there also the then SDE refused to take him in service and demanded Rs. 5000/- to let him join in service. It was stated that after having exhausted all his remedies, and making a number of representations, the petitioner submitted a complaint to the Vigilance Cell and it was only upon intervention of the Vigilance Cell that the petitioner was allowed to join on 19th August, 2000 at Delhi Cantt. However, no dues were paid to him for the intervening period and the period from September 1996 to 10th August, 2000 was declared as dies non. It was argued that since the petitioner was kept out of work for no fault of his, the said dues and other benefits cannot be denied to him by the respondents.

4. Without prejudice to his argument that the petitioner was not allowed to join service, counsel for the petitioner submitted that assuming that the respondents proposed to take some action against the petitioner for being absent without leave, still respondent No. 2 failed to give any notice or to initiate any enquiry proceedings against the petitioner before taking any adverse action against him. Reliance was placed on Government Instructions issued by the D.G., P. & T. vide letter No. 6/28/70-Disc. I (SPB-I), dated 5th October, 1975, to state that the question whether the break should be condoned or not and treated as dies non should be considered only after conclusion of the disciplinary proceedings and that too after the Government servant represents in this regard.

5. Per contra, the counsel for respondents No. 2 to 4 took a preliminary objection to the maintainability of the writ petition and stated that the petition should not be entertained as it is barred by delay and laches for the reason that the petitioner had failed to explain as to why did he not approach the court from September, 1996 to the year 2004, when this petition was finally filed.

6. On merits, counsel for respondents No. 2 to 4 disputed the stand of the petitioner as wrong insofar as he claimed that he was not allowed to join at Delhi Cantt. Telephone Exchange or that the Divisional Engineer at Karol Bagh had asked for any unlawful gratification for allowing him to join services. On the other hand, it was submitted, that the petitioner had remained absent unauthorizedly from September 1996 to August 2000 and as such is not entitled to any relief. It was also stated that the petitioner had miserably failed to discharge the burden to prove the facts alleged by him, inasmuch as nothing was placed on record by him to show that he had reported for duty, but was not allowed to join. It was also vehemently denied that respondent No. 2 received any representation from the petitioner, as claimed by him.

7. It was submitted that the petitioner was an employee of the Union of India, respondent No. 1 herein, and was only on deputation with the MTNL and that the Department of Telecommunications had introduced a scheme in the year 2000, by which all the employees who desired to be absorbed in MTNL were required to give an option as per the said scheme, but the petitioner having failed to exercise the said option within the due date, his name was struck off from the strength of MTNL with effect from 17th August, 2000 and he was directed to report to the AGM (Administration) office of Chief General Manager (NTR), Union of India, Kidwai Bhawan for further duties and as such, the petitioner ceased to be an employee of the MTNL with effect from 17th August, 2000. Reliance in this regard was placed on the transfer order dated 17th August, 2000 issued to the petitioner by MTNL. It was argued that in view of the fact that the petitioner was only on deputation with respondent No. 2, and was not even in the employment of respondent No. 2 as on the date of filing of this petition, any disciplinary action against the petitioner could be initiated and/or conducted by respondent No. 1, his parent department and not by MTNL.

8. Learned Counsel for respondents No. 2 to 4 contended that since the petitioner had remained absent without leave, the period of his absence was rightly declared as dies non, i.e., neither was the period to be counted as in service, nor as break in service; in fact it was a simple case of 'no work, no pay'. It was urged that when the workman deliberately abstains himself from work, the management is entitled to deduct, prorata or otherwise, wages of such workman. Reliance was placed on the judgment rendered by the Supreme Court in the case of Bank of India v. T.S. Kelawala and Ors. reported as .

9. I have heard the counsels for the parties and have perused the records. Ex facie, the petition suffers from gross delay and laches as no cogent reason whatsoever has been offered by the petitioner as to why did he not take any action for the redressal of his grievance for a considerable period of 8 years i.e. right from September, 1996, when he was not paid salaries etc. to the year 2004, when this petition was filed. The only explanation offered in this respect was that since the petitioner had not received any salary for four long years w.e.f. September 1996 to August 2000, he was not in a position to prosecute his matter. However, the said explanation is devoid of any force, and on the contrary, it appears to be a reason strong enough for the petitioner to have agitated his claim immediately and promptly. Instead he approached the Court after a gap of 4 years from August 2000, when the petitioner claims that he was permitted to joint back in duty.

10. The aforesaid explanation offered by the petitioner is also not tenable in view of the fact that the records reflect that the petitioner after being permitted to join duty in August, 2000, did not make any representation to the respondents No. 2 to 4 for release of all benefits, including arrears of pay for the period with effect from September, 1996 to 10th August, 2000. Hence, a mere bald allegation made by the petitioner to the effect that several representations were made to the respondents No. 2 to 4 for the said relief, is not borne out from the record. The representations that the petitioner has referred to and filed on the record are copies of the letters dated 24th January and 11th April, 2000, both of which were addressed to the respondents No. 2 to 4 prior to August, 2000. Hence the delay and laches on the part of the petitioner remain unexplained.

11. Even assuming that the petitioner made successive representations to the respondent Nos. 2 to 4 for a number of years, it does not necessarily mean that by merely making such representations it ought to be assumed that the petitioner has acted diligently inasmuch as the petitioner is expected to seek his remedy in law within a reasonable time and simply writing letters and making representations to the employer cannot extend the limitation indefinitely. A writ court is not bound to exercise its powers of judicial review to entertain a stale claim for adjudication, such powers being discretionary in nature. In a given case, the High Court may refuse to extend the benefit of a discretionary relief to the applicant, and one such ground for refusing the relief claimed is delay and laches, unless the same has been sufficiently explained to the satisfaction of the Court.

12. The petitioner in the present case has slept over his rights for about four years. In fact, as observed hereinabove, the delay is much more if the period from September, 1996 onwards is taken into consideration, since the cause of action even as per the petitioner, was available to him from September, 1996 onwards when he was not paid his dues by the respondents No. 2 to 4. However, even if the contention of the petitioner that he was not in a position to prosecute his matter on account of non-receipt of any salary for long four years, is accepted and the period from September 1996 to August 2000 is excluded, still the inaction of the petitioner from August, 2000 onwards till the filing of the present writ petition is unjustified.

13. It has been held in a number of cases by the Supreme Court as also this Court that stale claims should not be entertained by the courts and failure to make out grounds to condone the delay in seeking remedy in law is sufficient to oust the petitioner. In this connection, reference may be made to the following judgments:

(i) Rajalakshmiah v. State of Mysore AIR 1967 SC 993

(ii) J.N. Maltiar v. State of Bihar

(iii) C.B.S.E. v. B.R. Uppal and Ors.

(iv) Savitri Sahni v. Lt. Governor, NCT of Delhi and Ors.

14. In this view of the matter, this Court is not inclined to exercise its power of judicial review to entertain the present claim of the petitioner which is hopelessly barred by delay and laches and the writ petition is, therefore, dismissed. The parties are left to bear their own costs.