Karnataka High Court
V.G. Yerrappa vs The Secretary on 20 September, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO.105802/2016 (L-RES)
BETWEEN:
1. V.G.YERRAPPA
S/O.G.GANESH
AGED ABOUT 52 YEARS
RESIDING AT NO.36
SULEMAN KHAN STREET
6TH WARD, BENGALURU ROAD
BALLARI
2. T.MALLIKARJUN
S/O.NAGAPPA @ BUSHAPPA
AGED ABOUT 53 YEARS
RESIDING AT KUMBARA STREET
NO.137, WARD NO.5
HOLAGUNDA, TALUK- ALURU
DISTRICT KURNOOL (A.P)
3. FAKKIRAPPA
S/O.MOOKAPPA
AGED ABOUT 55 YEARS
RESIDING AT KOTTUR GONAL
NEAR EBBUTAM
HOLAGUNDA MANDALAM
TALUK ALURU, DISTRICT -KURNOOL (A.P)
4. ERANNA
S/O.SANNAIAH
AGED ABOUT 52 YEARS
RESIDING AT S.C. COLONY
HOLAGUNDA, TALUK ALURU
DISTRICT KURNOOL (A.P)
2
5. SMT.LAKSHMI
W/O.ERANNA
AGED ABOUT 51 YEARS
RESIDING AT S.C.COLONY
HOLAGONDA, TALUK - ALURU
DISTRICT -KURNOOL (A.P)
6. K.VANNAPPA@HONNAPPA
S/O.CHINNAVANNAPPA
AGED ABOUT 50 YEARS
RESIDING AT H.NO.21/4/42
DIVAKAR NAGAR
ADONI - 518 301(AP) ... PETITIONERS
(BY SRI.H.M.DHARIGOND, ADVOCATE)
AND
1. THE SECRETARY
TUNGABADRA BOARD
T.B.DAM, HOSPET
BALLARI - 583 225
2. THE EXECUTIVE ENGINEER
LOW LEVEL CANAL DIVISION
CANTONMENT, BALLARI- 586 104
... RESPONDENTS
(BY SRI.MAHESH WODEYAR, ADVOCATE)
***
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO ISSUE A WRIT IN THE NATURE OF CERTIORARI TO
QUASH THE ENDROSEMENTS DATED 21.06.2016 BEARING
NO.1071/B1/2016-17 (WP.101120-25/2016) PASSED BY
THE RESPONDENT NO.1 VIDE ANNEXURE-L, L1 TO L5 &
ETC.
THIS PETITION HAVING BEEN HEARD AND
RESERVED ON 28.06.2022 AND COMING ON FOR
3
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
This writ petition is filed for a writ in the nature of certiorari to quash the endorsement dated 21.06.2016 bearing No.1071/B1/2016-17 passed by the respondent No.1 and to quash the common award passed by the Central Government Industrial Tribunal cum Labour Court, Bangalore dated 12.11.2007 in CR No.54/1989 in so far as it relates to denial of reliefs prayed therein by the petitioners.
2. The petitioners are the workmen along with others with the respondent - management. They were working in the management of maintenance of low level canal at No.4 Sub-Division, Holagunda and Bapuram Sections, which are maintained by the respondent - management. They have put in service of more than 240 days in a year.
3. It is submitted by the petitioners that when the seniority list was called their names were left out and names of junior workers were included. In all 22 workers, 4 including petitioners, were thrown out of their jobs abruptly without following Section 25-F of the Industrial Disputes Act (in short 'the Act'). They were prevented from work from 01.07.1986 and 27.07.1988 from the respondent - management.
4. Thereafter, the Executive Engineer of respondent No.1 had written a letter to the Superintendent Engineer of the respondent - management regarding error and partisan treatment meted to the NMR workers, including the petitioners, in the seniority list vide Annexure-A.
5. The petitioners along with other retrenched workers appeared before the conciliation proceedings through General Secretary, T.B. Board Workers and Civil Employees Union, T.B. Dam, Hospet Taluk, but the respondent - management failed to participate in the proceedings, which resulted in failure. Accordingly, a reference was made to Central Government Industrial Tribunal, Bangalore (in short 'CGIT') by the Government of India in C.R. No.54/1989 and the petitioners filed their claim petition. The respondent - management appeared 5 and filed its objections contending that the Tungabadra Board is not an industry and it is an independent autonomous body having separate legal existence and in view of the same it is not covered under Section 2(j) of the Act.
6. On rejection of their claim petitions by the CGIT some of the workers challenged the same before this Court in W.P. No.5025/2005. On 06.06.2007 this Court allowed the said writ petition and directed the Tribunal to conduct fresh proceedings. Accordingly, C.R. No. 54/1989 came to be filed by the retrenched workers including petitioners. They examined 13 witnesses as WW2 to WW14 and marked documents at Ex.W1 to W29. In turn, respondents examined MW1 and got marked Ex.M1 to M44.
7. On consideration of material evidence, both oral and documentary, the CGIT passed an order on 12.11.2007 allowing the reference and directed the respondent - management to reinstate the workmen in its service with full back wages from the date of their termination till the date of reinstatement with 6 consequential benefits. The CGIT extended the said benefit only to 14 workmen, as 8 workmen did not turn up for evidence.
8. Being aggrieved, the respondent -
management preferred W.P. No.4831/2008 before this Court praying to set aside the said order. During the pendency of the said writ petition the petitioners therein filed IA No.1/2015 by producing a copy of the order passed under the similar circumstances by the CGIT, Hyderabad and which was confirmed in W.A. No.505/2003 & 985/2004 by the Hon'ble High Court, Andhra Pradesh. On the basis of the same this Court on 05.12.2015 disposed of the said writ petition by directing the respondent - management to reinstate the petitioners therein with continuity of service, but modified the award in respect of back wages. In compliance of the order dated 05.02.2015 in W.P. No.4831/2008 the respondent - management reinstated the petitioners therein in to service by issuing appointment letters to 14 workmen.
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9. It is the case of petitioners that they are poor and illiterate labourers and they were retrenched by the respondent - management, hence they filed the claim petition before the CGIT along with the other retrenched workmen in Cr. No.54/1989 through their Union. Pursuant to the dismissal of the claim petition some of the workmen approached this Court and the matter came to be remanded. Petitioners were under the impression that they would be issued notice from the CGIT and believed that their claim could be effectively conducted and prosecuted by their Union which was conducting the case on their behalf. Under this impression they could not participate in the proceedings after the matter was remanded.
10. It is the contention of the learned counsel for the petitioners that the nature of work of the present petitioners and that of the retrenched workers are one and the same. Further, these petitioners were also parties before the CGIT in CR No.54/1989, which was prosecuted by one Sri Mookanna and 21 others, through General 8 Secretary, Tungabhadra Board Factory Workers and Civil Employees Union, T.B. Dam, Bellary District.
11. The learned counsel further contends that by virtue of the order passed in W.P. No.4831/2008 an order of appointment was issued to the other retrenched workers. After the petitioners came to know about this act they made a representation on 23.09.2015 requesting the respondent - management to provide similar benefits to them as that of other co-workers and moreso as they were also parties in CGIT proceedings. However, the respondent - management refused to consider the representation of the petitioners due to which the petitioners filed W.P. No.101120-24/2016 and W.P. No.101125/2016 before this Court. An order came to be passed directing the respondent - management to consider the representation of the petitioners within a period of three months. He further contends that vide order dated 21.06.2016 the respondent - management issued an endorsement stating that their representations 9 cannot be considered by wrongly interpreting the observations made by this Court and award of CGIT.
12. Learned counsel for petitioners further contends that in all 22 workmen were covered under the points of dispute before the CGIT and all of them were similarly placed. The proceedings before the CGIT was prosecuted by their Union through its General Secretary and the evidence was adduced on behalf of all the workmen so also the exhibits were marked. He further contends that the respondent - management have rejected the claim of the petitioners arbitrarily without considering the judgment of this Court in W.P. No.101120- 124/2016, wherein this Court held that the case of the petitioners was initially espoused by their Union and it did not take the matter to its logical end by effectively representing the interest of all the workers. It further held that these six persons had no occasion to appear before the CGIT as they were under the bonafide impression that the Union was pursuing the matter on their behalf. Therefore, directed the respondent - management to consider the representation of the petitioners. 10
13. Learned counsel further contends that the petitioners who are similarly placed like the other retrenched workers, were not given the benefit by the respondent - management have been deprived of similar benefits when they are similarly placed is violative of Article 14 of the Constitution of India and is thereby discriminated. He further contends that in view of order passed by the Industrial Tribunal-I in I.D. No.80/1991 and connected reference and the order passed in W.P. No.14028/1994 and in W.A. No.505/2003 and 985/2004, wherein the workmen were entitled to reinstatement with full backwages and consequential and attendant benefits was upheld by the Hon'ble Division Bench of the Hon'ble High Court of Andhra Pradesh, having attained finality the respondent - management are not justified in rejecting the request made by the petitioners to provide similar benefits as that of the co-employees retrenched in similar fashion. Hence, it is violative of Article 14 of the Constitution of India.
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14. Learned counsel further contends that these petitioners were parties in the original CGIT proceedings and they stand in similar footing as that of 14 other retrenched workmen who were provided the benefit of reinstatement with full backwages. Therefore, the petitioners herein also deserve to be treated in a similar manner as that of the other retrenched workers who were reinstated by an order of CGIT. Therefore, he contends that the rejection of the representation of the petitioners as that of the other similar workmen, is erroneous, illegal, arbitrary and discriminatory. Hence, on these grounds he seeks to allow the writ petitions.
15. Learned counsel for the petitioners relies on the judgment of the Hon'ble Apex Court in the case of STATE OF UTAR PRADESH AND OTHERS vs ARVIND KUMAR SRIVASTAVA AND OTHERS reported in (2015) 1 SCC 347, in support of his Case.
16. Per contra, the learned counsel appearing for the respondent Nos. 1 and 2 vehemently contends that the writ petition filed by the petitioners are false, frivolous, 12 neither tenable in law or facts and is liable to be dismissed. He further contends that the writ petition is liable to be dismissed on the ground of enormous delay and latches, so also, on the ground that the petitioners do not have locus standi to challenge Annexure-B of the writ petition as they have not adduced evidence before the CGIT and not produced any documents to prove their case. He further contends that the dispute raised by the petitioners would not fall under the Act. He also states that Tungabhadra Board - respondent has no independent corporate existence and has no autonomy, which it is capable of exercising independently of the Government but it is a statutory body under the Ministry of Water Resources, River Development and Ganga Rejuvenation, Government of India. The entire budget of the respondent is shared between Government of Andhra Pradesh and Karnataka in an agreed ratio.
17. Learned counsel for respondent Nos. 1 and 2 further contends that the construction of project run by State Government, the Hon'ble Apex Court has held that the workers engaged by the State Government are not 13 covered by the Act in a decision in a case reported in AIR 1979 SC 1981, therefore, the CGIT has no jurisdiction to entertain the claim under the Act.
18. The counsel for respondents further contends that the alleged 14 workmen employed in the Irrigation Department on work during the specific period was not of continuous in nature, there is no appointment order or dismissal order or retrenched order, it was only an appointment against the sanctioned post. Hence, the engagement of the labour dependent on the exigencies of the work, thereby the petitioners did not serve for 240 days in a calendar year and their statement is false.
19. The learned counsel for respondents further contends that in spite of several opportunities given to the petitioners to appear and adduce evidence they have not utilised the same due to which the CGIT dismissed their case on merits. He further contends that nothing prevented the petitioners to challenge the earlier orders and contest the matter by adducing evidence and producing the relevant materials, as each and every claim 14 of the petitioners is subject to determination on the merits of the same.
20. Learned counsel for respondents further contends that the petitioners have slept over the matter from 12.11.2007 and thereafter agitated after disposal of W.P. No.4831/2014 on 05.02.2015 mis-representing the facts. He further contends that W.P. No.4831/2014 was disposed of based on the material evidence placed on record by 14 workmen and granted relief to only said 14 workmen as awarded by CGIT in CR.No.54/1989 as special case. Hence, he vehemently contends that the decision rendered in CR.No.54/1989 is not applicable to the petitioners as those 14 workmen before the CGIT lead evidence and produced documentary material, whereas on the contrary, petitioners have not produced any documents and neither adduced evidence on their behalf to prove their case. He further contends that the order passed by the CGIT as per Annexure-D is perfectly legal and justified and the same does not call for interference. 15
21. Learned counsel for respondents further contends that the petitioners are not appointed on daily wage basis and they are not even on the rolls of respondent - management, so also, their service is not continuous in nature. He further contends that based on the judgment of this Court in W.P. No.101120-124/2016 and W.P. No.101125/2016 the respondent-management took up the mater for consideration and after applying its mind has rightly rejected the claim of the petitioners as to award passed in favour of the petitioners for reinstatement and so also the names of petitioners are covered in its judgment.
22. The learned counsel for respondents has further taken a strong objection with respect to petitioner No.6, who has impersonated by taking a similar name of Sri K.Honnappa @ Honnappa, one among the 22 workers in CR No.54/1989 of CGIT, whereas the said person / petitioner No.6 is working in Police Department as Head Constable, but his name is used by the petitioner No.6 in W.P. No.101120-124/2016 and W.P. No.101125/2016. On 16 these grounds learned counsel for the respondents seeks dismissal of the writ petitions.
23. Learned counsel for respondents has relied on the following decisions of the Hon'ble Apex Court in support of his case:
(1) UNION OF INDIA AND OTHERS vs M.K.SARKAR reported in (2010) 2 SCC 59;STATE OF T.N. vs SESHACHALAM reported in (2007) 10 SCC 137;
(2) C.JACOB vs DIRECTOR OF GEOLOGY ND MINING AND OTHERS reported in (2008) 10 SCC 115;
(3) UNION OF INDIA AND OTHERS vs CHAMAN RANA reported in (2018) 5 SCC 798.
24. The fulcrum of dispute raised by the petitioners being the workmen is that they were terminated by the respondents on 01.07.1986 and 27.07.1988. Hence, the terminated workmen along with the petitioners raised a dispute before the CGIT, Bengaluru in C.R.No.54/1989, wherein they sought a direction to the respondent- Management to reinstate their services with full backwages from the date of their termination till date of their 17 reinstatement along with consequential benefits. The CGIT after consideration of the material evidence placed on record both oral and documentary, partly allowed the claim and directed the Management to reinstate the first party workmen and named 14 persons out of 22 workmen, who were parties before the CGIT and rejected the claim of 08 workmen who did not turn up for adducing evidence and so also the reasons that the Advocate appearing for the claimant-workmen appeared for only 14 workers who had adduced evidence and he filed his written arguments also for the same.
25. The said award of CGIT in C.R.No.54/1989 came to be challenged by the respondent-Management in WP.No. 4831/2008 before this Court. After contest, this Court has passed the judgment dated 05.02.2015, wherein at para-12, it is held as under:
"12. In the instant case, nearly 27 years have gone by from the date of termination. In the said circumstance, certainly, the respondents could not have remained idle for such long period as they would have been employed else where even if it be for 18 survival. However, since there is no material on record to indicate that the actual nature of their employment elsewhere or the quantum of salary/wages they would have drawn, it would be appropriate that in the instant case, the back wages be fixed at 30%. Therefore keeping in view all the above aspects of the matter, the award passed by the CGIT dated 12/11/2007 insofar as directing reinstatement with continuity of service is affirmed. However, the same stands modified to hold that the respondents/ workmen would be entitled to only 30% backwages and for the remaining benefits, consequential benefits would only remain notional i.e. for the purpose of fixing the salary as on the date of reinstatement or for the purpose of calculating the terminal benefits".
26. This Court in the aforestated writ petition modified the judgment of CGIT by directing reinstatement with continuity of service as affirmed and ordered for backwages @ 30% instead of full backwages awarded by the CGIT. Even during this challenge made by the Management to the award of CGIT, the petitioners herein who were deprived by the CGIT of reinstatement and 19 consequential benefits did not implead themselves or challenge the award of CGIT.
27. This being the state of affairs, the petitioners herein after coming to know of the implementation of the High Court order reinstating some of the workmen and providing consequential service benefits made a representation to the respondent-Management on 23.09.2015 requesting them to provide similar benefits which have been granted to the similarly placed workmen who are also parties along with the petitioners in C.R.No.54/1989. Despite the said representation made by the petitioners, no response was given by the respondent- Management and neither were they considered for reinstatement. Hence, left with no other alternative, the petitioners approached this Court in WP.Nos.101120- 124/2016 & WP.No.101125/2016 (L-RES). This Court vide order dated 26.02.2016 disposed of the writ petitions filed by the petitioners by directing the respondent- Management to consider the representation given by the petitioners within a period of three months from the said date.
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28. Based on the order passed by this Court on 26.02.2016 to consider the representation of the petitioners, the respondents took up the applications of the petitioners for consideration and passed an order rejecting the claim of the petitioners on the ground that it was not possible to verify the records after lapse of more than 28 years and that the award of CGIT does not bind the name of the petitioners. Therefore, respondent-Management held that the petitioners' representation cannot be considered. It is this rejection of the representation of the petitioners by the respondents dated 21.06.2016 vide Annexure-L, L1 to L5 i.e. questioned before this Court. The petitioners have also consequently sought for quashing of the common award passed by the CGIT, Bengaluru in C.R.No.54/1989 dated 12.07.2007 so far as it relates to the petitioners herein whose claim was not considered by the CGIT.
29. It is not in dispute that the petitioners were terminated by the respondents on 01.07.1986 and 27.07.1988. It is also not in dispute that 21 workmen 21 approached the CGIT on 02.08.1989 and the CGIT passed an award of reinstatement of 14 workmen and consequential service benefits with full backwages vide order dated 12.11.2007. Admittedly, the petitioners' claim to be rejected by the CGIT, wherein 14 workmen were reinstated and 08 workmen were not provided the similar benefit of reinstatement as they had not participated by adducing evidence before the CGIT. Out of 08 workmen, whose claim was rejected, 06 workmen are before this Court as petitioners. It is also not in dispute that the petitioners made a representation for considering their claim similar to that of the reinstatement workmen on 23.09.2015 and despite no action being taken by the respondent-Management of reinstatement of the petitioners, they did not make an effort to challenge the original order wherein their claim of reinstatement was not considered by the CGIT. On the contrary, the petitioners preferred a writ petition before this Court for a direction to the respondent-Management to consider their representation by filing a writ petition in WP.Nos.101120- 124/2016 & WP.No.101125/2016 (L-RES). Though this 22 petition came to be allowed, their representation was duly considered by the respondent-Management and rejected vide order dated 21.06.2016.
30. The above said factual chronological aspects clearly demonstrates the manner in which the petitioners have prosecuted and conducted their case. Now the question that has to be decided by this Court is to whether the petitioners have diligently prosecuted/ conducted their case or whether the petitioners have slept over the matter and have shown a very callous approach to the matter leading to enormous humongous days of delay and latches.
31. It is evident from the petition and the documents placed by the petitioners that despite the award of CGIT dated 12.11.2007, the petitioners have not taken the trouble of raising their little finger to challenge the said award until now in 2016 by way of filing this writ petition, wherein the second prayer sought is to quash the order of the CGIT in C.R.No.54/1989 so far as it relates to the petitioners.
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32. The arguments of the learned counsel for petitioners appears to be attractive at the first blush for the reason that under service jurisprudence, the normal rule is that when one set of employees are given relief by the Court, all other identically and similarly placed persons deserve to be provided the same benefit, as by not doing so, it would tantamount to violation of Article 14 of the Constitution of India. This is precisely the argument of learned counsel for the petitioners. It is his vociferous contention that the petitioners herein had approached the CGIT along with other retrenched workmen totally 22 in number represented by their Union through Secretary. Hence, he contends that the petitioners had approached the CGIT well in time, but it is due to the fault of the Secretary of the Union or the Advocate representing them before the CGIT, who did not actively involve the petitioners by adducing evidence before the CGIT and effectively putting forth the grievance of the petitioners like that or the other workmen whose claim came to be allowed. Therefore, it is his contention that the petitioners are at fault.
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33. No doubt, it is true that the petitioners approached the CGIT along with other workmen for redressal of their dispute but the fact remains that at the time of disposal of the claim petition, the CGIT had categorically and in clear terms reinstated only 14 workmen with consequential service benefits of backwages, thereby rendering 08 workmen without any relief. Even if this Court takes into consideration that the petitioners are similarly placed workmen who ought to have been given similar treatment and benefit as that of the other 14 workmen who were reinstated, what is glaring before this Court is that when 14 workmen were reinstated with full backwages and thereafter modified to 30% backwages and taken into employment, the petitioners herein have not raised their little finger in challenging the award of CGIT. Strangely, petitioners made representation to the respondent-Management to reinstate them similar to that of the other workmen. Nothing prevented the petitioners from challenging the award of CGIT. Merely because the petitioners made certain representations for their reinstatement similar to that of other reinstated 25 workmen, the petitioners would not get the benefit of the relief granted to the other workmen who were diligent. The petitioners would have to explain humongous inordinate delay and latches in filing the present petition after a period of more than 09 years from the date of the order of CGIT.
34. It is not in dispute that they were terminated from the employment in the year 1986 and 1988. Therefore, as on date, it is 36 years period which is lapsed from the date of the termination. The question would be whether it would be just and plausible to direct the respondent-Management to reinstate the petitioners after a period of 36 years of termination, when most of the petitioners are already in the verge of their retirement.
35. It is also not forthcoming in the petition averments or in the arguments put-forth by the learned counsel for petitioners that these petitioners were jobless or out of employment for the aforestated years. No material has been placed by the petitioners to establish this factual position. Hence, it is not forthcoming with 26 cogent evidence that these petitioners were jobless and on the contrary, it can be presumed that they would have been employed in some other organization for their survival and day-to-day living.
36. Article 14 of the Constitution of India, no doubt provides equality before law and equal opportunities to similarly placed persons. However, the same will have to be put into implementation and practice to those persons/ petitioners who would be diligent and alert in exercising their right by approaching the Court/forum well within time. In the present case on hand, the petitioners have slept over the matter like Kumbakarna without challenging the order of CGIT well within reasonable time. Merely by making representation to the respondent-Management, the same would not cure the inherent requirement of period of limitation. It is a well established rule of law that delay and latches is a very crucial factor to determine the intent of the claim made by the petitioners whether deserves consideration. As stated earlier, merely by filing representation before the concerned authority, the petitioners cannot invoke the theory of Doctrine of 27 Legitimate Expectation, when they themselves have not approached the Court on time and with clean hands.
37. In the present case, when the petitioners were aware of the fact that their claim for reinstatement by CGIT was not considered on 12.11.2007, they ought to have challenged the same immediately within a reasonable time, but instead went on filing representations before the respondent-Management and filed writ petition before this Court to consider their representation, thereby causing further delay in the process of challenging the order of their claim being rejected by CGIT. This kind of practice or modus operandi by the petitioners in making representations before the respondent-management instead of challenging the very same order is questionable and should be out rightly deprecated. This reasoning is fortified by a judgment of the Hon'ble Apex Court in the case of C.Jacob v. Director of Geology and Mining and another reported in (2008)10 SCC 115, wherein at paras-8 to 11, the Hon'ble Apex Court has held as follows:
"The modus of "representation"28
8. Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before the tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court).
Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to
service. Normally, there will be considerable delay in replying to such representations relating to old matters. Taking advantage of this position, the ex-employer files an application/writ petition before the tribunal/ High court seeking a direction to the employer to consider and dispose of his representation. The tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.
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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 realise 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 application/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim of merits and grant relief. In this manner, the bar of 30 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 direction (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 to tribunal, such an order does not revive the stale claim, nor 31 amount to some kind of "acknowledgment of a jural relationship" to give rise to a fresh cause of action."
38. Undoubtedly, in the present case on hand, the petitioners were terminated in the year 1986 and 1989 and their claim before the CGIT in CR No.54/1989 came to be rejected vide order dated 12.11.2007. The said order of CGIT has not been challenged well within reasonable time. Strangely, the said order of CGIT is challenged in this writ petition vide prayer No.2, whereas the first prayer is to quash the endorsement dated 21.06.2016 passed by the respondent-management for consideration of their representations made by the petitioners.
39. The cause of action for the petitioners first arose on 01.07.1986 when they were terminated from the employment along with similarly placed workmen and thereafter their claim petition filed before CGIT in CR No.54/1989, alleged to have been conducted / prosecuted by the Secretary of the Union on their behalf came to be decided by a final order on 12.11.2007, whereby the claim of petitioners came to be rejected. The petitioners were 32 aware of the rejection of their claim by the CGIT but they did not immediately challenge the order of CGIT. Though the matter was taken up in the writ petition by the respondent-management in the year 2008 vide W.P. No.4831/2008 the petitioners did not bother to implead themselves as parties to the said writ petition. The said writ petition came to be partly allowed and the order of CGIT was modified on 05.02.2015, giving some relief to the respondent-management, however, maintaining the order of reinstatement and reducing the backwages to 30%. The modification of the CGIT order by this Court was admittedly within the knowledge of the petitioners, despite which no immediate legal remedy/action was taken by the petitioners to either seek a review of the order by impleading themselves or challenge the same.
40. Petitioners instead of challenging the order of CGIT made as representation on 23.09.2015 to the respondent - Management to consider their representations in line with the reinstated 14 workmen as per the order of CGIT. As the same was not considered petitioners preferred writ petition in the year 2016 for a 33 direction to the respondent-management to consider their representations, which though allowed the respondent- management rejected the representation of the petitioners, vide order dated 21.06.2016. It is evidently seen from the modus operandi and conduct of the petitioners that they have showed lackadaisical attitude and lethargy in challenging the order of their rejection for reinstatement. This conduct of petitioners does not auger well to show their bonafides and diligence in prosecuting the matter. In normal circumstances it is assumed that the workmen who is terminated or retrenched from employment would immediately approach the Court of law seeking reinstatement as he would be out of employment, without any source of income which is detrimental to his very survival and sustenance of his family. In the present facts and circumstances of the case after analyzing the chronological aspects of the matter it is seen that from the date of termination on 01.07.1986, 36 years have gone by as on date. It would be grossly unreasonable to direct the respondent-management to reinstate the workmen and to provide service benefits including backwages. 34
41. Admittedly, in the present facts of the case, on going through the chronological list of dates, it is apparently evident that the petitioners have slept over the matter and not bothered to explore their legal remedy well within time. On the other hand, they have filed representations before the respondent-Management to revive a time barred claim by way of representation. The petitioners despite being aware of the fact of rejection of their claim by the CGIT were making hectic efforts to revive a stale and dead issue by way of representations and for a writ of mandamus before this Court to consider the said representation, thereby they have lost precious time in actually challenging the main issue of their rejection of claim by the CGIT. By the time the petitioners made representation before the respondent-Management, there was no live issue for consideration of representation as by then the issue had become dead. This aspect of the matter is fortified by the Hon'ble Apex Court in the case of Union of India v. M.K.Sarkar reported in (2010)2 SCC 59, wherein paras-14, 15 and 16 read as under: 35
"14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been considered by this Court in C.Jacob v. Director of Geology and Mining:
"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 realise 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 36 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 application/ petitions ignoring the huge delay preceding the representation, and proceed to examine the claim of merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.
15. 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 37 extend the limitation, or erase the delay and laches.
16. A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live"
issue or whether it is with reference to a "dead" or 'stale" issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct "consideration" without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect."
42. It is pertinent to note here that by the time the petitioners made their representation for consideration before the respondent-Management on 23.09.2015, they were aware that they were only seeking a mercy appeal or a ground of sympathy to be considered by the respondent- 38 Management for consideration of their claim similar to that of the reinstated workmen.
43. Therefore, seen from any angle, the petitioners have not made out any good valid ground to show their bonafides that they had prosecuted the matter diligently to consider their case similar to that of the reinstated workmen. Admittedly, the petitioners had not adduced evidence and neither produced any material before the CGIT for consideration of their claim. So also, it is true that no order came to be passed in favour of the petitioners by the CGIT. Hence, when the petitioners were not beneficiaries of any order by the CGIT and having not shown any cogent bonafide reasons for having brooked enormous delay in approaching this Court, they would not be entitled for any relief as they have not shown any reasonable ground to condone the bar of limitation and latches encountered in the present case. Though the similarly placed workmen were granted relief by the CGIT, who had diligently participated and adduced evidence, the petitioners herein would not be entitled to the same relief, 39 despite similarly being placed, on the ground of enormous delay and latches.
44. Allowing the petition would amount to condoning the bar of limitation and enormous amount of delay brooked, gets obliterated and ignored. As stated earlier, this Court is not inclined to give benefit to the petitioners for the act of trying to revive a stale dead issue by way of making representations to the respondent-Management which is a self created representation syndrome to revive a dead stale claim, which is discussed in detail by the Hon'ble Apex Court in C.Jacob's case (supra). Hence, I do not find any justifiable reasons to allow the petition. Accordingly, I proceed to pass the following:
ORDER Petition is dismissed.
No Costs.
SD JUDGE VK