IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4867 of 2009 PARAS NATH SHARMA Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr. Ibrahim Kabir For the Board : Mr. Vinay Kirti Singh. ----- 2. 17.4.2009. Heard learned counsel for the petitioner and learned counsel for the Bihar State Electricity Board. While in service, the petitioner is said to have performed certain overtime works in the months of May, June, September, October and December, 2000. He has retired on 30.11.2002. The claim is for overtime dues of Rs.50,819/. The petition contains bald statement that during the period of his service as also after retirement, he met several officers of the Board and requested them to pay his overtime dues. He wrote to the Chief Engineer on 10.2.2005 followed by reminder in February and legal notice in September, 2005 and May 2006. He then came to this Court in C.W.J.C.No.14760 of 2006. Writ petition was disposed of on 30.4.2007 with the observation that it be treated as a representation of his claim to be verified from the records of the Board. It is 2 submitted that when appropriate orders were not passed, he filed M.J.C.No.2844 of 2007 for non- compliance. During the pendency of the contempt petition, he was paid a sum of Rs.18457/ only. In the contempt petition, on 21.8.2008, liberty to was granted to file a fresh writ application for balance amount of overtime dues. This has been wrongly rejected by order dated 7.2.2008. Reliance has been placed upon a judgment of the Jharkhand High court in the case of Nripendra Narayan Sinha Vs. The Jharkhand State Electricity Board 2006 (3) JLJR 603. Learned counsel for the Board submits that legitimate dues have been paid. The jurisdiction of the writ court is a discretionary jurisdiction. One of the grounds upon which exercise of discretion is refused, is the invocation of a belated claim. This is based on the principle that the court shall not come to the aid of an indolent litigant apathetic to his own interest. It has also been held that mere filing of representations is not sufficient justification to explain the delay unless a regal remedy was being pursued. In the case of State of Tamil Nadu Vs. Seshachalam 3 (2007) 10 SCC 137, at paragraph no.16,it has been held as follows: “16.-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.” Xxx xxx xxx It is equally settled law that a relief claimed on the ground of it having been granted to a person similarly situated can be refused if the subsequent complainant has moved belatedly without any explanation for the delay. In the case of Nadia District Primary School Council and another Vs. Sristidhar Biswas and others (2007)12 SCC 779, at paragraph-10, it has been held as follows: “10.-In this connection, learned counsel invited our attention to a recent decision of this Court in Chairman, U.P.Jal Nigam V. Jaswant Singh. In that case, referring to various decisions of this court, it was observed that those who sit on the fence and wait for a favourable order and thereafter wake up to take up the 4 matter, are not entitled to any relief. In para 13 of the judgment, this court concluded as follows: (SCC p.471), “13.- In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. xxx” The claim in a writ application is based on documents annexed as evidence. In the case of Bharat Singh and others Vs. State of Haryana and others AIR 1988 SC 2181 it has been held at paragraph-13 as follows: “13.-xxx In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter- affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point 5 out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit not only the fact but also the evidence in proof of such facts have to be pleaded and annexed to it.” x x x The petitioner makes a claim with regard to acts done by him in the year 2000. He retired on 30.11.2002. In the writ petition, there is no documentary evidence in support of the bald pleading that he allegedly raised the issue during his service. Even thereafter, it is baldly pleaded that he represented. Both these pleadings are not supported by any documentary evidence. The first documentary evidence annexed in support of the pleading is of the year 2005, five years after the claim and three years after his superannuation. Now that he has retired, because time is at leisure, he finds this Court a convenient engagement. When he filed C.W.J.C.No.14760 of 2006 in essence, he was seeking the aid of the shoulder of this court to attack the respondents by covering up his own lethargic attitude of not 6 being vigilant seeking a limited relief of an observation for disposal of his representation. When he came for the second time in a contempt petition, the High court only observed that if he was desired, he may move a fresh application. On both occasions, the observations of this Court did not condone the delay on his part but merely left him to his fate with certain observations. The Court did not hold that he was a vigilant litigant. The petitioner now seeks to draw the benefit of aforesaid innocuous orders on the earlier occasion seeking the shoulder of the Court to relaunch his belated claim for dues. The attitude of a indolent litigant, in this manner, trying to revive a belated claim based on the syndrome of a representation, has been discussed by the supreme Court in the case of C.Jacob Vs. The Director of Geology and Mining and another (2008) 10 SCC 115. Discussing the issue at para-8 of the judgment, the supreme court has observed how a litigant tries to create a cause of action on a belated claim. Conscious that, if made directly to the court or the tribunal, it will get rejected on 7 the ground of delay and laches, instead of filing an application before the court, he files a representation requesting for consideration of his grievance. If the matters are old, it will naturally take time for disposal of the representation. He then takes advantage of this situation to file a writ petition for disposal of the representation. The court then without examining the matter on merits, routinely disposes off the matter by a simple direction to consider and dispose of the representation. The Supreme Court at para-9 of the judgment has observed with regard to the Court’s on such orders that little do they realize the consequences of such a direction to “consider” if on this representation, relief is granted, he gets relief by reason of direction to “consider”. If on the representation, relief is granted, well and good. If it is rejected, the petitioner makes it a fresh cause of action for filing a fresh writ petition not with reference to the belated cause of action, but by treating the rejection of the representation as a fresh cause of action for grant of relief. The courts then routinely entertain such 8 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 and laches gets obliterated or ignored. That is precisely the situation in the present case and the manner in which the petitioner has chosen to proceed. The Supreme Court at paragraph no.8 of the judgment then goes to hold that “the reply to such representation can not be a fresh cause of action to revive the dead claim”. The Supreme Court at paragraph no.11 has observed as follows: “11.- 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 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 a fresh cause of action.” The submission that the issue of the overtime wages stood decided in the Jharkhand High court is of no help to the petitioner. 9 From the facts of that case, it appears that the claim related to the period between January 1994 to December 2001. The applicant moved the High Court in 2002. The absence of a communication led to the contempt application which was dropped in the year 2004 leading to a fresh writ petition in 2005. It further appears that the claim was raised while petitioner was in service. On facts, he was vigilant. This court has already held that the relief granted to other similarly situated can still be refused, if a litigant was not vigilant about the protection of his own interest. The petitioner has been fortunate that he has achieved partial success in a belated claim by seeking the shoulder of the Court. He should be satisfied with the same. This court finds no merit in the belated claim of the writ petitioner. Application stands dismissed. ahk (Navin Sinha,J.)