Punjab-Haryana High Court
Kamlesh Tuteja vs State Of Punjab And Others on 12 March, 2024
Neutral Citation No:=2024:PHHC:035022
CWP No.5671 of 2024 (O&M)
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2024:PHHC:035022
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.5671 of 2024 (O&M)
Date of decision: 12.03.2024
Kamlesh Tuteja
....Petitioner
Versus
State of Punjab and others
....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Varlin Garg, Advocate
for the petitioner.
Mr. Rajesh Sehgal, Addl. A.G., Punjab.
NAMIT KUMAR J. (Oral)
1. The instant petition has been filed by the petitioner seeking
a writ of mandamus for directing the respondents to release the amount
of Rs.75,720/-, which was deducted in the year 2011 from the service
benefits of the petitioner, alongwith interest with a further prayer to
direct respondents No.2 and 3 to decide the legal notice-cum-
representation dated 25.01.2024 sent by the petitioner.
2. Learned counsel for the petitioner submits that besides the
recovery of Rs.75,720/-, out of total Rs.6,50,000/- as gratuity amount in
terms of 5th Pay Commission implemented w.e.f. 01.01.2006, the
respondent has filed a suit for recovery of remaining amount of
Rs.5,74,280/- as principal and Rs.1,61,239/- as interest and the said suit
was dismissed on 29.09.2015 by the Court of learned Civil Judge (Jr.
Division), Chandigarh, against which an appeal was preferred by the
respondent/plaintiff, which was dismissed by the learned Additional
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District Judge, Chandigarh, vide order dated 15.05.2017 and thereafter,
he has submitted representation dated 11.05.2023 (Annexure P-6) for
the refund of amount of Rs.75,720/- along with interest. He further
submits that thereafter, a legal notice dated 25.01.2024 (Annexure P-8)
has also been issued, however, neither reply has been given by the
respondents to the said legal notice nor the said amount has been
released, therefore, the present writ petition has been filed.
3. I have heard learned counsel for the petitioner and perused
the record.
4. The petitioner is claiming the service benefit to the tune of
Rs.75,720/-, which was deducted way-back in the year 2011. The
petitioner retired on attaining the age of superannuation on 30.04.2010
and the present writ petition has been filed after a period of more than
13 years from the date of his retirement.
5. Once the relationship of master and servant has come to an
end on retirement of an employee, the petitioner cannot agitate the stale
issues after 13 years. If the claim of the petitioner for revised pay scale
was genuine, he could have agitated the same when he was in service.
The Division Bench of this Court in "H.S. Gill vs Union of India and
others", 2016(2) SCT 477, has held that an employee cannot claim the
revised pay scale after retirement once he has been receiving the pay
scale granted by the employer for the last 09 years. The relevant portion
from the said judgment, reads as under:-
"14. The petitioner is also not entitled to any relief
on account of principle of delay and laches. He has been
receiving the pay in the pay scale of Rs.6500-10500 right
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from his transfer to CSIO, Chandigarh i.e. 2.7.2002. For
the first time, he moved the representation on 29.8.2011,
so, he kept mum for about 9 years. Thus, the claim of the
petitioner is highly belated and stale."
6. In a recent judgment by the Division Bench of this Court in
"Ram Kumar vs State of Haryana and others", 2022 (3) SCT 346,
while rejecting the claim of the petitioner for counting of his ad hoc
service, for the purpose of seniority/pension and regularization in
service on completion of 02 years as per policy, held that the petition
filed by him suffered from gross, inordinate and unexplained delay in
approaching the High Court. In the said judgment, it has been held as
under:-
"10. What we wish to emphasize, in particular, is
that services of the appellant were regularized w.e.f.
01.04.1997. And, he was assigned a specific seniority
position in the cadre. Whereafter, he continued to serve the
department for nearly twenty five years, before attaining
the age of superannuation in January, 2022. Needless to
assert that during all these years, he availed all admissible
benefits, promotions, and retired as Inspector. Thus, it
rather appears that institution of the petition by the
appellant was speculative and an attempt to resurrect a
stale and dead claim. The Supreme Court, in New Delhi
Municipal Council v. Pan Singh & Ors., 2007(9) SCC
278, observed:
"15. There is another aspect of the matter
which cannot be lost sight of. Respondents herein
filed a Writ Petition after 17 years. They did not
agitate their grievances for a long time. They, as
noticed herein, did not claim parity with the 17
workmen at the earliest possible opportunity. They
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did not implead themselves as parties even in the
reference made by the State before the Industrial
Tribunal. It is not their case that after 1982, those
employees who were employed or who were
recruited after the cut-off date have been granted the
said scale of pay. After such a long time, therefore,
the Writ Petitions could not have been entertained
even if they are similarly situated. It is trite that the
discretionary jurisdiction may not be exercised in
favour of those who approach the Court after a long
time. Delay and laches are relevant factors for
exercise of equitable jurisdiction. See Govt. of W.B.
v. Tarun K. Roy And Others [(2004) 1 SCC 347],
Chairman, U.P. Jal Nigam & Anr. v. Jaswant
Singh And Anr. [2006 (12) SCALE 347] and
Karnataka Power Corpn. Ltd. through its
Chairman & Managing Director and Another v. K.
Thangappan and Another [(2006) 4 SCC 322]"
11. Similarly, in Jagdish Lal & Ors. v. State of
Haryana & Ors., (1997) 6 SCC 538, it was held by the
Supreme Court:
"That apart, as this Court has repeatedly
held, the delay disentitles the party to the
discretionary relief under Article 226 or 32 of the
Constitution. It is not necessary to reiterate all
catena of precedents in this behalf. Suffice it to state
that the appellant kept sleeping over their rights for
long and elected to wake up when they had the
impetus from Vir Pal Chauhan and Ajit Singh's
ratios..................... Therefore, desperate attempts of
the appellants to re-do the seniority had by them in
various cadres/grades though in the same services
according to 1974 Rules or 1980 Rule, are not
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amenable to judicial review at this belated stage...."
12. In the wake of the position as sketched out
above, we are dissuaded to interfere with the impugned
order and judgment rendered by the learned single Judge.
The appeal being bereft of merit is, accordingly,
dismissed."
7. The Co-ordinate Bench of this Court in "Prem Nath and
others vs State of Punjab and others", 2018(2) SCT 687, while
rejecting the claim of additional increments of acquisition of higher
qualifications has held as under:-
"3. It is the case set up on behalf of the petitioners
that they had all been appointed before 19.02.1979 and
had even improved/acquired higher qualifications before
19.02.1979 and as such there would be no difference
between the employees working with the Punjab
Government, holding corresponding post and the
employees like the petitioners who have worked for Punjab
Privately Managed Recognised Aided Schools. It is also
the assertion made by counsel representing the petitioners
that their claim would be covered in terms of decision
dated 02.07.2013 rendered by this Court in a bunch of writ
petitions including CWP No.8083 of 1989 titled as Radha
Krishan Narang and others vs. State of Punjab and
others.
4. Having heard counsel for the petitioners at length,
this Court is of the considered view that the claim of the
petitioners would not require any consideration on merits
and the writ petition deserves to be dismissed on the sole
ground of delay and laches.
5. Placed on record and appended at Annexure P-1
are the particulars of the petitioners. The tabulation at
Annexure P-1 would show that all the petitioners stand
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retired on various dates between the years 1995 to 2012.
Out of 32 petitioners in all, 22 petitioners superannuated
more than 10 years back.
6. There is no justification coming forth as regards
the inordinate delay in having approached the Writ Court.
There is also no explanation put forth by the petitioners as
to why the claim raised in the instant petition was not
agitated by the petitioners while they were in service. The
entire thrust of the submissions advanced by counsel is that
similarly situated employees had approached this Court
and have been granted releif.
7. The issue regarding delay in invoking the
extraordinary writ jurisdiction under Article 226 of the
Constitution of India was considered by the Hon'ble
Supreme Court in Chairman, U.P. Jal Nigam and another
v. Jaswant Singh and another (2006)11 SCC 464. In such
case, certain employees raised the issue that they were not
liable to be retired at the age of 58 years but should be
permitted to continue in service till they attain the age of
60 years. Such employees were still in service when the
writ petitions were filed. The writ petitions were ultimately
allowed. Placing reliance upon such judgment, some of the
employees, who had already superannuated, filed writ
petitions seeking the same benefit. Even such petitions
were allowed by the High Court in terms of following the
earlier judgment. The judgment of the High Court was
challenged before the Apex Court and wherein while
referring to earlier judgments in Rup Diamonds v. Union
of India, (1989)2 SCC 356; "Jagdish Lal v. State of
Haryana, (1997)6 SCC 538 and Government of West
Bengal v. Tarun K. Roy, (2004)1 SCC 347, it was opined
that persons who approached the Court at a belated stage
placing reliance upon the order passed in some other case
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earlier, can be denied the discretionary relief on the
ground of delay and laches. The relevant observations
made by the Supreme Court are contained in Paras 5, 6
and 16 of the judgment and are extracted here under:-
"5. So far as the principal issue is
concerned, that has been settled by this court.
Therefore, there is no quarrel over the legal
proposition. But the only question is grant of
relief to such other persons who were not
vigilant and did not wake up to challenge
their reitrement and accepted the same but
filed writ petitions after the judgment of this
court in Harwindra Kumar v. Chief
Engineer, Karmik, (2005) 13 SCC 300.
Whether they are entitled to same relief or
not? Therefore, a serious question that arises
for consideration is whether the employees
who did not wake up to challenge their
retirement and accepted the same, collected
their post-retirement benefits, can such
persons be given the relief in the light of the
subsequent decision delivered by this court?
6. The question of delay and laches has
been examined by this court in a series of
decisions and laches and delay has been
considered to be an important factor in
exercise of the discretionary relief under
Article 226 of the Constitution. When a person
who is not vigilant of his rights and
acquiesces with the situation, can his writ
petition be heard after a couple of years on
the ground that same relief should be granted
to him as was granted to person similarly
situated who was vigilant about his rights and
challenged his retirement which was said to
be made on attaining the age of 58 years. A
chart has been supplied to us in which it has
been pointed out that about 9 writ petitions
were filed by the employees of the Nigam
before their reitrement wherein their
retirement was somewhere between 30.6.2005
and 31.7.2005. Two writ petitions were filed
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wherein no relief of interim order was passed.
They were granted interim order. Thereafter a
spate of writ petitions followed in which
employees who retired in the years 2001,
2002, 2003, 2004 and 2005, woke up to file
writ petitions in 2005 and 2006 much after
their retirement. Whether such persons should
be granted the same relief or not?
xx xx xx
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." [Emphasis
supplied]
8. The issue of delay was also dealt with by this
Court in Tarsem Pal vs. Punjab State Power Corporation
Limited and others, 2013 (3)SLR 314. In the case of
Tarsem Pal(supra), the petitioner was serving as a Clerk
with the respondent-Corporation and had retired on
31.03.2005. Claim in the writ petition was to grant to him
the benefit of proficiency set up in the pay scale on
completion of 23 years of service from the due date as per
policy of the Corporation. During the service career, he
had not agitated the claim for increments. For the first
time, such claim had been made on 28.02.2005 i.e. just one
month prior to superannuation. While non-suiting the
petitioner on account of delay and laches it was held as
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follows:-
"11. In the aforesaid judgments, it has
been clearly laid down that discretionary
relief in a writ jurisdiction is available to a
party who is alive of his rights and enforces
the same in court within reasonable time. The
judgment in another case does not give a
cause of action to file a writ petition at a
belated stage seeking the same relief. Such
petitions can be dismissed on account of delay
and laches. As has already been noticed above
in the present case as well, the petitioner
joined service in the year 1965 and retired in
the year 2005, but raised the issue regarding
benefit of proficiency step up in the pay scale
on completion of 23 years of service from the
due date more than five years after his
retirement referring to a judgment of this
court and filed the petition claiming the same
relief.
12. The petitioner retired from service
on 31.3.2005 and the claim pertaining to the
benefit of proficiency step up, which may be
admissible to the petitioner during his service
career, was sought to be raised more than five
years after his retirement, the claim made at
such a late stage deserves to be dismissed on
account of delay and laches only. The
petitioner could raise a grievance about the
pay scales admissible to him or the last pay
drawn by him within a reasonable time after
his retirement. He cannot be permitted to
raise the same at any time on the plea that the
same is recurring cause of action.
13. Considering the enunciation of law,
as referred to above, in my opinion, the
petitioner herein is not entitled to the relief
prayed for and the petition deserves to be
dismissed merely on account of delay and
laches."
9. At this stage, counsel appearing for the
petitioners would make an attempt to overcome the
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obstacle of delay by placing reliance upon a Full Bench
Judgment of this Court in Saroj Kumar vs. State of
Punjab, 1998(3) SCT 664. Counsel would argue that as
per dictum laid down in Saroj Kumar's case(supra),
matters of pay fixation involve a recurring cause of action
and as such, writ petitions for such claim cannot be
dismissed on the ground of delay and laches and the Court
at the most, may restrict the arrears upto 38 months from
the date of filing of the petition and disallow the arrears
for the period for which even a suit had become time
barred.
10. The reliance placed by counsel upon the
judgment in Saroj Kumar's case, is wholly misplaced. The
observations and aspect of delay in Saroj Kumar's case,
were in the light of the judgment of the Supreme Court in
M.R. Gupta vs. Union of India and others, 1995(4) RSJ
502. In M.R. Gupta's case(supra), it had been categorically
held that so long as an employee "is in service" a fresh
cause of action arises every month when he is getting his
monthly salary on the basis of a wrong calculation made
contrary to rules. It was further held that the claim to be
awarded the correct salary on the basis of a proper pay
fixation "is a right which subsists during the entire tenure
of service".
11. In the present case, however the petitioners
choose not to agitate their claim while in service. It is
much subsequent to their superannuation that they have
woken up and seek to gain impetus from certain decisions
that may have been rendered in the case of similarly
situated employees.
12. Considering the dictum of law as laid down in
Chariman, U.P. Jal Nigam's case (supra), the petitioners
herein are not entitled to any releif as prayed for and the
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petition deserves to be dismissed on the sole ground of
delay and laches.
13. Ordered accordingly."
8. The Hon'ble Supreme Court in State of Uttaranchal and
another v. Sri Shiv Charan Singh Bhandari and others, 2013(6) SLR
629, while considering the issue regarding delay and laches and
referring to earlier judgments on the issue, opined that repeated
representations made will not keep the issues alive. A stale or a dead
issue/dispute cannot be got revived even if such a representation has
either been decided by the authority or got decided by getting a
direction from the court as the issue regarding delay and laches is to be
decided with reference to original cause of action and not with reference
to any such order passed. Delay and laches on the part of a government
servant may deprive him of the benefit which had been given to others.
Article 14 of the Constitution of India, in a situation of that nature, will
not be attracted as it is well known that law leans in favour of those who
are alert and vigilant. Even equality has to be claimed at the right
juncture and not on expiry of reasonable time. Even if there is no period
prescribed for filing the writ petition under Article 226 of the
Constitution of India, yet it should be filed within a reasonable time. An
order permitting a junior should normally be challenged within a period
of six months or at the most in a year of such promotion. Though it is
not a strict rule, the courts can always interfere even subsequent thereto,
but relief to a person, who allows things to happen and then approach
the court and puts forward a stale claim and try to unsettle settled
matters, can certainly be refused on account of delay and laches. Any
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one who sleeps over his rights is bound to suffer. An employee who
sleeps like Rip Van Winkle and got up from slumber at his own leisure,
deserves to be denied the relief on account of delay and laches. Relevant
paragraphs from the aforesaid judgment are extracted below:
"13. We have no trace of doubt that the respondents
could have challenged the ad hoc promotion conferred on
the junior employee at the relevant time. They chose not to
do so for six years and the junior employee held the
promotional post for six years till regular promotion took
place. The submission of the learned counsel for the
respondents is that they had given representations at the
relevant time but the same fell in deaf ears. It is interesting
to note that when the regular selection took place, they
accepted the position solely because the seniority was
maintained and, thereafter, they knocked at the doors of the
tribunal only in 2003. It is clear as noon day that the cause
of action had arisen for assailing the order when the junior
employee was promoted on ad hoc basis on 15.11.1983. In
C. Jacob v. Director of Geology and Mining and another,
(2008) 10 SCC 115, a two-Judge Bench was dealing with
the concept of representations and the directions issued by
the court or tribunal to consider the representations and
the challenge to the said rejection thereafter. In that
context, the court has expressed thus:-
"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
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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."
9. In Union of India and others v. M. K. Sarkar, (2010) 2
SCC 59, the Hon'ble Supreme Court, after referring to C. Jacob (supra)
has ruled that when a belated representation in regard to a "stale" or
"dead" issue/dispute is considered and decided, in compliance with a
direction by the court/tribunal to do so, the date of such decision cannot
be considered as furnishing a fresh cause of action for reviving the
"dead" issue or time-barred dispute. The issue of limitation or delay and
laches should be considered with reference to the original cause of
action and not with reference to the date on which an order is passed in
compliance with a Court's direction. Neither a court's direction to
consider a representation issued without examining the merits, nor a
decision given in compliance with such direction, will extend the
limitation, or erase the delay and laches.
10. From the aforesaid authorities, it is clear as crystal that
even if the court or tribunal directs for consideration of representations
relating to a stale claim or dead grievance it does not give rise to a fresh
cause of action. The dead cause of action cannot rise like a phoenix.
Similarly, a mere submission of representation to the competent
authority does not arrest time. In Karnataka Power Corpn. Ltd.
through its Chairman & Managing Director v. K. Thangappan and
another, (2006) 4 SCC 322, the Court took note of the factual position
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and laid down that when nearly for two decades the respondent-
workmen therein had remained silent mere making of representations
could not justify a belated approach.
11. In State of Orissa v. Pyarimohan Samantaray, (1977) 3
SCC 396, it has been opined that making of repeated representations is
not a satisfactory explanation of delay. To the same effect is the
judgment in State of Orissa v. Arun Kumar Patnaik, (1976) 3 SCC
579.
12. In Bharat Sanchar Nigam Limited v. Ghanshyam Dass
(2) and others, (2011) 4 SCC 374, a three-Judge Bench of the Hon'ble
Supreme Court reiterated the principle stated in Jagdish Lal v. State of
Haryana, (1977) 6 SCC 538 and proceeded to observe that as the
respondents therein preferred to sleep over their rights and approached
the tribunal in 1997, they would not get the benefit of the order dated
7.7.1992.
13. In State of T. N. v. Seshachalam, (2007) 10 SCC 137, the
Hon'ble Supreme Court, testing the equality clause on the bedrock of
delay and laches pertaining to grant of service benefit, has ruled thus:-
"... filing of representations alone would not save
the period of limitation. Delay or laches is a relevant
factor for a court of law to determine the question as to
whether the claim made by an applicant deserves
consideration. Delay and/or laches on the part of a
government servant may deprive him of the benefit which
had been given to others. Article 14 of the Constitution of
India would not, in a situation of that nature, be attracted
as it is well known that law leans in favour of those who
are alert and vigilant."
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14. In New Delhi Municipal Council v. Pan Singh and others,
(2007) 9 SCC 278, the Court has opined that though there is no period
of limitation provided for filing a writ petition under Article 226 of the
Constitution of India, yet ordinarily a writ petition should be filed
within a reasonable time. In the said case the respondents had filed the
writ petition after seventeen years and the court, as stated earlier, took
note of the delay and laches as relevant factors and set aside the order
passed by the High Court which had exercised the discretionary
jurisdiction.
15. In "Union of India & Anr vs Manpreet Singh Poonam
Etc.", 2022(4) SCT 550, the Hon'ble Supreme Court, has held as
under:-
"16. It is trite law that once an officer retires
voluntarily, there is cessation of jural relationship
resorting to a "golden handshake" between the employer
and employee. Such a former employee cannot seek to
agitate his past, as well as future rights, if any, sans the
prescription of rules. This would include the enhanced pay
scale. The Respondent in Civil Appeal No.517 of 2017 was
rightly not considered in the DPC in 2012 since he was no
longer in service at the relevant point of time. The High
Court has committed an error in relying upon a circular,
which has got no application at all, particularly in the light
of our finding that we are dealing with a case of promotion
simpliciter as against upgradation of any nature."
16. To the same effect is the judgment of this Court in "Suraj
Mal vs The State of Haryana and others", 2015(1) SCT 31, wherein
the petitioner was claiming the benefit of ACP scale, after completion of
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10 years of regular service, revised pension and other retiral benefits,
after nearly 05 years, after his retirement and the said claims were
rejected on the ground of delay and latches.
17. In view of the above authoritative enunciation of law by
Hon'ble the Supreme Court and this Court, the aforesaid issue as raised
in the present writ petition filed by the petitioner after more than 13
years of his retirement, cannot be allowed to be agitated, at this stage
and consequently, the present petition is liable to be dismissed on the
ground of delay and latches.
18. For the reasons stated hereinabove, the present writ petition
is dismissed in limine.
(NAMIT KUMAR)
JUDGE
12.03.2024
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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