Petitioner superannuated in 2006 claiming wrongful leave adjustment from 1994. The court held the claim was barred by laches as the petitioner was not vigilant before retirement and filed a belated representation to create a fresh cause of action.
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IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5260 of 2009 SURENDRA KUMAR SINHA Versus THE STATE BANK OF INDIA & ORS -----------
The claim relates to alleged wrongful adjustment of 88 days of leave fair concession by a written communication dated 3.3.2004 at Annexure-5.
The petitioner superannuated from service on 31.7.2006. Learned counsel for the petitioner is not in a position to demonstrate any legal remedy being pursued by the petitioner in that regard till the date of his superannuation. After his superannuation, the petitioner seems to have become serious about the matter when he claims to have met the authorities on 6.10.2007 who declined to accede to his request „at this stage‟ stating that it had been properly done based on various reports of the competent authority based on materials. Thereafter the petitioner filed a representation on 18.10.2007 followed by a reminder, reconsideration of which has been declined on 12/15.2.2008.
Learned counsel for the petitioner submits that in pursuance of the order dated 3.3.2004, the petitioner had filed certain representations while he was in service. It is next urged that the writ petition is not belated as the
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authority has finally declined to reconsider the matter on 12/15.2.2008 by a non-speaking order.
The issue relates to certain acts done in the year 1994. Even if the petitioner be correct, he filed a representation in 2004 and remained satisfied with nondisposal of the same.
The law stands settled that mere filing of representations shall not be sufficient explanation unless a legal remedy was being pursued. The petitioner appears to have woken up to become vigilant of his rights only after his retirement on 31.7.2006. The communication dated 6.10.2007 when he visited the office of the Respondents adequately states that the order of 3.3.2004 was passed on various reports of the competent authority. Despite the fact that his earlier representation evoked no response, the petitioner instead of availing a legal remedy before his superannuation, kept silent and chose to file a fresh representation on 18.10.2007. Assuming for the sake of argument, as urged, that he did submit representation while he was in service, there is nothing on the record to demonstrate in what manner, the representation was submitted and in what manner the acknowledgement in receipt of the same was given to him.
This Court is satisfied that the petitioner has woken up belatedly. He was not vigilant about the
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protection of his own rights and interest. Even if he had given any representation in his service tenure, he never pursued it. It is only after his superannuation that he seeks to revive the issue and now claims that in pursuance of the representation dated 18.10.2007 justice was not being done to him as a non-speaking order disposing his representation has been passed. This was the position on 6.10.2007 also when the Respondents told him that from the report of the competent authority of the year 1994 they were not in a position to accede to his request.
The Supreme Court in (2008) 10 SCC 115 (C. Jacob v. Director of Geology and Mining and another) has taken note of what has been described as „modus of representation‟. The Supreme Court noticed that in such matters where the issue was sought to be raised belatedly, the petitioner was aware that any such outright challenge before the Court would be rejected at the threshold on the ground of delay and laches. Therefore, instead of an outright challenge to the impugned order, he first files a representation requesting for consideration. Where matters are old, there is bound to be delay in consideration of the representation. In a case like the present obviously the issue of consideration of old records arises. Taking advantage of this position, a writ petition is then filed seeking a limited relief for a direction to consider and
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dispose of the representation. The Courts routinely do so on the assumption that every citizen deserves reply to his representation. The Court‟s then assume that a mere direction to consider and dispose of representation does not involve any decision or rights and obligations. The Supreme Court then cautioned, “Little do they realize the consequences of such a direction to „consider‟ ”. If the representation was considered and accepted, an employee gets a relief, which he would not have got on account of long delay but for the direction to consider. But if the representation is rejected then a writ petition is filed seeking to revive an original claim, much belated. The cause of action for the writ petition is based on any orders passed on such a belated representation where the Court passed, what it thought was an innocuous order for a direction to dispose representation. Making out a fresh cause of action after the representation is disposed, the writ petition is filed. The Supreme Court again cautioned “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.”
In the judgment under consideration at paragraph 8 a delay of about eight years was being considered. In this
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case the claim relates to a cause of action of 2004 in which the writ petition has been filed in 2009.
This Court can do no better than to quote paragraph 11 of the judgment which reads as follows :
“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 so 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 “acknowledgement of a jural relationship” to give rise to afresh cause of action”
By quoting the words of the Supreme Court, in this writ application of the modus of “representation and relief”, this Court is satisfied that the petitioner has only himself to blame if he was not vigilant in pursuing a legal remedy.
This Court declines to entertain a belated claim seeking to make out a fresh cause of action a belated representation to urge a fresh cause of action on disposal of the same by the respondents.
The writ application is dismissed.
AKS/
(Navin Sinha, J.)
3 issues framed by the court
Whether a writ petition becomes barred by laches when the petitioner sleeps on his rights after superannuation and seeks to revive an old claim via a belated representation.
Whether merely filing a representation can waive the limitation period for subsequent litigation.
Whether the disposal of a belated representation creates a fresh cause of action to bypass the limitation bar.
Colour shows how this judgement treated each authority
C. Jacob v. Director of Geology and Mining and anotherApplied¶13
(2008) 10 SCC 115 · Who else cites this
Surendra Kumar Sinha
The State Bank of India
Navin Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
