IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.03.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.No.4306 of 2010 & M.P.No.1 of 2010 T.R.SOMASUNDARAM [ PETITIONER ] Vs 1 THE CHAIRMAN CUM MANAGING DIRECTOR INDIAN OVERSEAS BANK ANNA SALAI CHENNAI-2. 2 THE PRESIDING OFFICER PRINCIPAL LABOUR COURT CHENNAI-104. [ RESPONDENTS ] Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records pertaining to the letter dated 7.11.1998 on the file of the 1st Respondent herein and quash the same. For Petitioner :: Mr.M.Chidambaram O R D E R The petitioner is an Officer of Bharat Overseas Bank, which was merged with the Indian Overseas Bank. The petitioner sent a representation on 10.10.1998 to the erstwhile Bharat Overseas Bank seeking for voluntary retirement. His application for voluntary retirement was rejected by the said Bank as early as 7.11.1998. Thereafter, the petitioner was sending representation to the erstwhile Bank. Subsequently, the said Bank has been merged with the Indian Overseas Bank. 2. In the meanwhile, the petitioner filed a Claim Petition before the Labour Court (Principal Labour Court, Chennai ) under section 33-C (2) of the Industrial Disputes Act claiming not only shortfall of arrears of salary but also pension on the ground that since he has gone on voluntary retirement, he is entitled for pension from the year 1999. The said Claim Petition was taken on file by the Labour Court as C.P.No.454 of 2005. In that case, since https://hcservices.ecourts.gov.in/hcservices/ the erstwhile Bank was no longer in existence, the petitioner made the 1st respondent herein as party respondent to the Claim Petition. 3. The 1st respondent had filed a counter statement dated 25.11.2005 resisting the claim of the petitioner. The contention raised by the 1st respondent was that the petitioner, having resigned from the post, was not entitled for Pension Regulations and his case cannot be considered to be a voluntary retirement. Only in case where voluntary retirement is accepted by the competent authority under Regulation 29 of the Bharat Overseas Bank Ltd. (Employees') Pension Regulations 1995, the question of pension can be claimed. The Labour Court tried that issue. Before the Labour Court, the petitioner filed 21 documents and they were marked as Ex.P.1 to Ex.P.21. On the side of the Bank, 4 documents were filed and they were marked as Ex.R.1 to Ex.R.4. The petitioner examined himself as P.W.1 and one Ms.D.Heera was examined as R.W.1. 4. The Labour Court, on an analysis of the materials placed before the Court, came to the following conclusions, which are set out in paragraph 12 of the order dated 21.8.2009: "Thus, it is evident that it is a case of resignation and the resignation having been acted upon by the respondent Bank and it is not a case of voluntary retirement and the consequence has followed. If this is to be the perspective in this claim petition, the relief of computation of arrears of pension and the direction to the respondent to pay pension every month, the encashment of privilege leave and a claim pertaining to the shortfall in the notice period – all could not be granted in this claim petition (emphasis added)" 5. The final order passed by the Labour Court dated 21.8.2009 was not challenged before any court. On the other hand, the petitioner has now instituted a fresh case contending that the order dated 7.11.1998 issued by the Bharat Overseas Bank was illegal and the petitioner ought to have been allowed to go on voluntary retirement. 6. Such a Writ Petition cannot be maintainable after a period of 12 years. Even otherwise, the petitioner invited findings from the Labour Court, which is squarely against him. Therefore, the case of the petitioner cannot be taken on file not only in the light of the findings of the Labour Court but also on the ground of inordinate delay in moving this Court. 7. The Supreme Court very recently in Union of India and others vs. M.K.Sarkar reported in (2010) 2 SCC 59 in paragraphs 14, 15 and 16 had observed as follows: "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 https://hcservices.ecourts.gov.in/hcservices/ and avoidable complications. The ill-effects of such directions have been consi0dered by this Court in C.Jacob v. Director of Geology and Mining : (SCC Public Prosecutor 122-23 in para 9) "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 on merits and grant relief. In this manner, the bar of limitation or the laches gets obligerated 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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. (emphasis added)" 8. In the light of the above, this Court is not inclined to entertain the Writ Petition. Hence, the Writ Petition stands dismissed. No costs. The connected Miscellaneous Petition stands closed. ajr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1 THE CHAIRMAN CUM MANAGING DIRECTOR INDIAN OVERSEAS BANK ANNA SALAI CHENNAI-2. 2 THE PRESIDING OFFICER PRINCIPAL LABOUR COURT CHENNAI-104. + 1 cc to Mr. M. Chidambaram, Advocate SR No.14114 AKR(CO) SR/9.3.2010 W.P.No.4306 of 2010 https://hcservices.ecourts.gov.in/hcservices/