IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29 - 6 - 2011 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO and THE HONOURABLE MR. JUSTICE M. VENUGOPAL Writ Petition No. 15048 of 2011 M.S. Sivanandam ... Petitioner vs 1. The Union of India Rep. by its Chairman Railway Board Rail Bhavan New Delhi 2. The General Manager Southern Railway Chennai - 3 ... Respondents Petitioner filed writ petition under Article 226 of the Constitution of India seeking for issuance of Writ of Certiorarified Mandamus to call for the records in pursuant to the impugned order passed by the Central Administrative Tribunal, Chennai Bench dated 23.3.2011 in Dairy No. 463 of 2011 and quash the same and consequently direct the respondents to sanction and pay pension to the petitioner for the services rendered by him in Railways from 11.7.1946 to 20.8.1965 and consequently pay the arrears of pension and pensionary benefits with interest. For Petitioner : Mr. S.M. Subramaniam ORDER (made by ELIPE DHARMA RAO, J.) Heard the learned counsel for the petitioner and perused the records. 2. The unsuccessful petitioner before the Central Administrative Tribunal in Dairy No. 463 of 2011 has filed this Writ Petition challenging the order dated 23.3.2011 whereby and whereunder the Application filed by the petitioner seeking for direction to sanction and pay pension for the services rendered by him in Railways after 46 years, was dismissed. https://hcservices.ecourts.gov.in/hcservices/ 3. The basic facts giving rise to filing of the writ petition are as follows :- The petitioner, who was appointed as Clerk on 10.7.1946 in Railways, tendered his resignation on 17.7.1965 and the same was accepted by the General Manager, Southern Railway. Thereafter, he made several representations to the respondents seeking pension on the ground that since he served for about 19 years, he is entitled for pension. Since there was no response from the respondents, he approached the Central Administrative Tribunal. 4. The Tribunal, on consideration of the materials, not satisfied with the reasons given by him, dismissed the O.A. for the long delay of 46 years. Aggrieved by the same, he has preferred the present Writ Petition. 5. Learned counsel appearing for the petitioner submitted that at the time when the petitioner submitted his resignation, no pension rules were in force and, therefore, as covered under the Provident Fund Rules, he simply came out from service. He further submitted that since he was continuously working in the Southern Railway for about 19 years, ie., from 11.7.1946 to 20.8.1965, he is entitled for pension. It is his further contention that the Tribunal, without considering his total service, dismissed the Application and sought for interference of this Court. 6. A mere reading of the records would show that the petitioner submitted his resignation as early as on 17.7.1965 and the same was accepted on 19.8.1965 whereas he has made his first representation only on 15.02.2002, ie., after a period of 37 years and approached the Tribunal on 20.01.2011, ie., after 46 years. 7. The Rule of Law is clear that the delay of each day should be explained to the satisfaction of the Court. In the present Writ Petition, a perusal of the records would make it clear that the resignation of the petitioner was accepted even as early as on 19.8.1965 whereas the Original Application was filed only after a period of 46 years, for which no reason is forthcoming from the appellant. 8. A Constitution Bench of the Supreme Court, while dealing with delay in approaching the Court in respect of service matters, vide its decision reported in AIR 1990 SC 10 [S.S. Rathore vs. State of Madhya Pradesh] held that parties who are having grievance over service matters must approach the Court at the earliest point of time and held in paragraph 22 that submission of just a memorial or representation to the Head of the establishment shall not be taken into consideration in the matter of fixing limitation. https://hcservices.ecourts.gov.in/hcservices/ 9. Further, in the judgment relating to Bhoop Singh vs. Union of India and others [(1992) 3 SCC 136], the Supreme Court held that inordinate and unexplained delay itself can be a ground to refuse the relief. 10. In the decision of the Supreme Court in Karnataka Power Corporation Ltd. Through its Chairman and Managing Director and another v. K.Thangappan and another [2006 (4) SCC 322], speaking for the Bench, Arijit Pasayat, J. in paragraphs 6 to 11 observed as follows: Para 6: "Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably. Para 7: What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd was approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Shri Balwant Regular Motor Service. Sir Barnes had stated: “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 limitation, the validity of that defence must be tried upon principles https://hcservices.ecourts.gov.in/hcservices/ 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 it relates to the remedy.” Para 8: It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay. Para 9: It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. 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. Para 10: It has been pointed out by this Court in a number of cases that representations would not be adequate https://hcservices.ecourts.gov.in/hcservices/ explanation to take care of delay. This was first stated in K.V. Rajalakshmiah Setty v. State of Mysore. This was reiterated in Rabindranath Bose case by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar Patnaik also.)" 11. The Supreme Court, further, in the judgment relating to the State of Tamil Nadu v. Seshachalam [2007 AIR SCW 7750] held that law leans in favour of those who are alert and vigilant. Speaking for the bench, S.B. Sinha, J. in paragraph 11 observed as follows: Para 11: "Some of the respondents might have filed representations but 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." 12. A Division Bench of this Court in its decision reported in S.Ganesan vs. Indian Bank represented by its Chairman and Managing Director, Chennai and others (2007 (2) M.L.J. 98) has held that the writ petitions filed after delay of nearly 2 or 3 years without justification, are liable to the dismissed on account of delay and laches. 13. In the case on hand, even the representation was made with delay of 37 years and that too, after his resignation from employment. There is absolutely no explanation in the affidavit to justify the delay in filing the writ petition after a lapse of 46 years. If the petitioner is so aggrieved, he should have approached the respondent in time when he was in service. In view of the above, we are of the view that the Tribunal has rightly dismissed the Dairy No.463/11 dated 23.3.2011 We see no illegality or irregularity in the order of the Tribunal warranting https://hcservices.ecourts.gov.in/hcservices/ interference of this Court. This Writ Petition fails and it stands dismissed accordingly. No costs. Sd/- Deputy Registrar. /true copy/ Sub Asst.Registrar. gri To 1. The Chairman Union of India Railway Board Rail Bhavan, New Delhi 2. The General Manager Southern Railway, Chennai - 3 3. The Registrar Central Administrative Tribunal Chennai-104 1 cc to Mr.S.M. Subramaniam, Advocate, Sr. 38002 W.P. No. 15048 of 2011 GGK (CO) kk 20/7 https://hcservices.ecourts.gov.in/hcservices/