IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No.: 3091 of 2008, Decided on: 21.7.2009. K.D. Sharma .… … … Petitioner. Versus H.P. University and another .… … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ? No.1 For the petitioner: Mr. Adarsh K. Vashist, Advocate. For the respondents: Mr. Vinod Thakur, Advocate. Rajiv Sharma, Judge (Oral): The petitioner is seeking direction to the respondent-University to accord study leave to him for undergoing course in Master in Library Science w.e.f. 1.9.1978 to 30.5.1979. The petitioner had submitted the application seeking 65 days leave on 3.8.1978. It was not sanctioned. However, he proceeded to complete the course. A representation was made by him for the first time for grant of study leave on 13.9.1991, which was rejected on 9.10.1991. In case the petitioner was aggrieved in any manner by non-according or non-sanctioning of the study leave in the year 1978, he should have approached the appropriate forum for Whether reporters of local papers may be allowed to see the judgment? No. - 2 - redressal of his grievance within a reasonable period of one or two years. The petitioner has not explained the delay from 1.9.1978 to 1991. Their Lordships of the Hon’ble Supreme Court in C. Jacob vs. Director of Geology and Mining and another, (2008) 10 SCC 115 have laid down that the delay can be condoned only if a person makes a statutory representation. The representation has been made by the petitioner on 13.9.1991. It has been rejected on 9.10.1991. The rejection of the representation of the petitioner on 9.10.1991 cannot create a fresh cause of action or revive a stale or dead claim. The cause of action had arisen to the petitioner in the year 1978. Their Lordships of the Hon’ble Supreme Court have held as under:- “The modus of `representation' 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 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 such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his - 3 - 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. 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 realize 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 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. 10. Every representation to the government for relief, may not be replied on merits. - 4 - 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 directee (person directed) examines the matter on merits, being under the impression that failure to do 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 `acknowledgment of a jural relationship' to give rise to a fresh cause of action. 12. When a government servant abandons service to take up alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having - 5 - continued in service, thereby deeming the entire period as qualifying service for purpose of pension. That will be a travesty of justice. 13. Where an employee unauthorizedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/ removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back-wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage indiscipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back-wages. 14. We are constrained to refer to the several facets of the issue only to emphasize the need for circumspection and care in issuing directions for `consideration'. If the representation is on the face of it is stale, or does not contain particulars to show that it is regarding a live claim, courts should desist from directing `consideration' of such claims.” - 6 - Mr. Adarsh K. Vashista, Advocate has also argued while concluding his submissions that the case of the petitioner was recommended by the Librarian on 5.1.1979. It may be so, however, the present petition is belated and the delay has not been explained at all by the petitioner. Accordingly, the present petition is dismissed on the ground of delay and laches. No costs. (Rajiv Sharma), J. July 21, 2009. (rkv) - 7 - - 8 -