CWP No.7270 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.7270 of 2008 Decided on : 04.03.2009 The Haryana Confed Employees Welfare Union Regn. ....Petitioners VERSUS Haryana State Federation of Consumer Cooperative Wholesale Stores Ltd. ....Respondent CORAM:- HON'BLE MR. JUSTICE AJAY TEWARI Present:- Mr. H. S. Sethi, Advocate for the petitioner. Mr. Rajesh Garg, Advocate for the respondent. AJAY TEWARI J. The petitioners were working as Salesmen with the respondent. In the month of December, 2000 a large number of Salesmen were retrenched after their posts were abolished. Some of the persons initiated litigation claiming that their retrenchment benefits were wrongly computed. Ultimately, the said litigation was decided in favour of those persons by Hon'ble the Supreme Court in Civil Appeal No.302 of 2004 titled as Rajinder Singh Chauhan and others V. State of Haryana and others in the following terms:- “In above view of the matter, the stand of the appellants that they were deemed to have been confirmed at the end of 24 months and they were permanent employees is in terra firma. 'Salesmen' belong to Class III of the category of permanent employees. The definition of “Probationer” CWP No.7270 of 2008 -2- given in Rule 4(b) fully supports the appellants' stand that the probation period shall not exceed 24 months in all. Therefore, as was held in Om Parkash's case Satya Naraya Jhavar's case and Dharam Singh's case(supra) the appellants inferentially have to be treated as permanent employees, and consequently the benefits under Rule 35(b) were available to them. But the same shall not be in addition to what is payable under Section 25-F. The amount which is higher of the two i.e. of Section 25-F or Rule 35(b) shall be paid to the appellants. If any amount has already been paid in terms of Section 25-F the same shall be adjusted while making the payment under Rule 35(L), which shall be made within three months. The appeal is allowed to the aforesaid extend. No costs.” The precise claim of the petitioners is that they are similarly situated and thus the same benefits should be granted to them. This plea has been controverted on the ground that the petitioners acquiesced in the earlier action and did not file any petition, and, therefore, the respondent is not obliged to grant them the same benefits as were granted to petitioners' colleagues. Reliance has been placed in the case of Bhoop Singh V. Union of India reported as AIR 1992 SC 1414 wherein Hon'ble the Supreme Court held as follows:- “It is expected of a Government servant who has a legitimate claim to approach the Court for the relief he seeks within a reasonable period, assuming no fixed period of limitation applies. This is necessary to avoid CWP No.7270 of 2008 -3- dislocating the administrative set-up after it has been functioning on a certain basis for years. During the interregnum those who have been working gain more experience and acquire rights which cannot be defeated casually by collateral entry of a person at a higher point without the benefit of actual experience during the period of his absence when he chose to remain silent for years before making the claim. Apart from the consequential benefits of reinstatement without actually working, the impact on the administrative set-up and on other employees is a strong reason to decline consideration of a stale claim unless the delay is satisfactorily explained and is not attributable to the claimant. This is a material fact to be given due weight while considering the argument of discrimination in the present case for deciding whether the petitioner is in the same class as those who challenged their dismissal several years earlier and were consequently granted the relief of reinstatement. Inordinate and unexplained delay or laches is by itself a ground to refuse relief to the petitioner, irrespective of the merit of his claim. If a person entitled to a relief chooses to remain silent for long, he thereby gives rise to a reasonable belief in the mind of others that he is not interested in claiming that relief. Others are then justified in acting on that belief. This is more so in service matters where vacancies are required to be filled CWP No.7270 of 2008 -4- promptly. A person cannot be permitted to challenge the termination of his service after a period of twenty-two years, without any cogent explanation for the inordinate delay, merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed. The lapse of a much longer unexplained period of several years in the case of the petitioner is a strong reason to not classify him with the other dismissed constables who approached the Court earlier and got reinstatement. The argument of discrimination is, therefore, not available to the petitioner.” As well as in the case of State of Karnataka V. S. M. Kotrayya reported as (1996) 6 SCC 267 wherein Hon'ble the Supreme Court held as follows:- “Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub-sections (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to CWP No.7270 of 2008 -5- why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay.” In my opinion, the above mentioned judgments are distinguishable. In the case of Bhoop Singh (supra), the situation was that the rights of their parties had supervened and that is why Hon'ble the Supreme Court held that granting relief to the petitioner on that stage would not be equitable. In the case of S.M. Kotrayya (supra), what determined the issue was the prescription of a period of limitation under the Administrative Tribunal Act, 1985. In my opinion, the present case would be covered by a subsequent decision in the case of State of Karnataka and others v. C. Lalitha reported as 2006(2) RSJ 19 wherein Hon'ble the Supreme Court held as follows:- “Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently.” A Division Bench of this Court in the case of Satbir Singh V. State of Haryana reported as 2002(3) RSJ 38 held as follows:- “Despite rejection of various contentions raised by this Court as well as the Hon'ble Apex Court, the State has CWP No.7270 of 2008 -6- been denying similar relief to identically situated employees. The Court has to take notice of the fact that in this Court alone, there are two or three matters listed before the Court for admission where petitioners are claiming the very same relief. This is in addition of the after notice or regular matters which are listed in the Court. In other words, hundreds of cases are filed every month in the High Court by the employees claiming the relief which the Government ought to have granted to the employees without intervention of the court in view of the settled position of law.....” “We consider it not only appropriate but necessary for us to discuss with some elucidation the pertinent aspect of issuing directions for preventing generation of frivolous or unnecessary litigation by the State. Such litigation can certainly be avoided by timely and suitable action being taken by the State and appropriate orders passed, remedying the grievances of its employees. Where the matters have settled; rival contentions of the parties duly adjudicated by the Courts and judgment have attained finality, there an order of the State denying identical relief to similarly situated employees would certainly be judicially chastised. Apathetic attitude of persons in office in finding ways and means to circumvent the judgments of the court, must entail certain serious consequences. This practice must be deprecated. The CWP No.7270 of 2008 -7- expenditure incurred by the State in defending such frivolous litigation is an avoidable burden on the State exchequer. Expenditure so incurred would also inferring (infringe?) public money. We see no reason as to why the State should not recover such expenditure from the salary of the erring officer(s) after following the procedure......” “It is an accepted fact that the State is largest employer in our country. Discontentment and dis- satisfaction in employees requesting from intentional omissions and inactions of the State is bound to generate multifold litigation between the two. In discharge of its normal duties and proper functioning, the State is expected to act fairly in such matters. To prevent litigation, particularly unnecessary litigation, is bounden duty of the State. Various facets of this duty caste an obligation upon the State an its various departments and unlike a private employer it must grant relief to its employees, which they are entitled to get in law or under rules. Default on the part of the State results in waste of public money, public time and unnecessarily burdens the functioning of the court. State cannot be allowed to take immutable stands and its instructions or directions always should tilt in favour of reason and fairness. State must respect and enforce the law laid down by the courts, particularly the highest court of the land.....” “Articles 141 and 142 of the Constitution of India CWP No.7270 of 2008 -8- make the judgment of the Apex Court binding on all courts. All authorities including the State must implement the orders effectively in comety to the law of the land. The constitutional mandate imposes an obligation on the State to ensure enforceability throughout the boundary of India of the orders passed by the Apex Court. Attempts to by-pass and circumvent the orders of the court could never achieve any object of the State. On the contrary, it would certainly introduce an element of discontentment and frustration in its employees. In a large society like ours, the steps taken on behalf of the State to eliminate unnecessary litigation is essence of proper administration. The maxim boni judics est causas litium dirimere even requires the Court to remove causes of litigation. Such maxim is indented to further the principle of precedents and is essential to maintain consistency in judicial pronouncements. The command in judgments which attain finality must not only appears to be respected, but should be enforced and implemented with respect as 'lex nil frustra jubet'.....” “State has pervasive obligations to discharge in relation to maintaining its expected standards of employer-employee relationship. As already noticed, one of the important facets of such obligations is to be reasonable and fair in granting service benefit to its employees in accordance with service rules and the CWP No.7270 of 2008 -9- principles enunciated on pronouncement of judgments by the courts. When judgments attain finality to which the State is a party, duty is casted upon the State to grant relief to its employees who are similarly situated and on identical facts. Benefit so such approach are many and it causes no disadvantage to the interests of the State. It is not necessary for the State to require each one of its employees to approach the Courts of law for grant of a relief which the State ought to grant to the employees in normal course of its administration, particularly, the cases of the kind afore-referred. Such principles is well known and accepted for years now. By referring to few judgments we would only predicate the principle with greater emphasis of its application in the day-to-day affairs of the State. In the case of Dr.(Mrs.) Santosh Kumari V. Union of India and others, 1952(2) RSJ 195 (SC): JT 1994(7) SC 565 SC and Hon'ble Apex Court held as under:- “The allotment of seats should go according to merit. It does not depend upon who comes to Court and who does not. The matter is one of principle and should not depend upon who comes to the court. A more deserving candidate may not have the means of approach the Court..........” “A Division Bench of this Court in the case of Satyapal Singh and others V. The State of Haryana and CWP No.7270 of 2008 -10- another, 1999(2) RSJ 377 also observed as under:- “The respondents as a welfare State should rather see to it that the litigation in the Courts is minimised. After this Court or the Apex Court lays down the law, it should see it that similarly situated persons automatically get the same relief without resorting to litigation.” Keeping the dictum of law expounded above, in my opinion, the petitioners are entitled to the same retrenchment benefits which have been granted to their colleagues in the case of Rajinder Singh Chouhan (supra). In the circumstances, this writ petition is allowed and the respondent is directed to compute the benefits available to the petitioners and pay them the same within a period of four months from the date of receipt of a certified copy of this order. March 04, 2009 ( AJAY TEWARI ) ashish JUDGE