IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.76 of 2010 1. BHARAT PRASAD KHARWAR S/O SHIVJI PRASAD KHARWAR @ SHIVJI KHARWAR R/O VILL. AND P.O. RAMPUR BINDALAL P.S. EKMA, DISTT.- SARAN Versus 1. THE UNION OF INDIA THROUGH CHAIRMAN, CENTRAL BOARD DIRECT TAX, GOVT. OF INDIA, FINANCE DEPTT., NEW DELHI 2. THE UNDER SECRETARY TO THE GOVT OF INDIA MINISTRY OF FINANCE, DEPTT. OF REVENUE, DIRECT TAX DIVISION, NEW DELHI 3. THE STATE OF BIHAR THROUGH D.M. SARAN, CHAPRA 4. THE SUBDIVISIONAL OFFICER, SADAR, SARAN, CHAPRA ----------- 2/ 04/03/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner was appointed as a peon on basis of a Scheduled Tribe Caste Certificate in the office of the Central Board of Direct Taxes, Government of India in the year-1974. In 1978 a controversy arose with regard to his caste status, that he was a backward caste. He was dismissed from service on 24.1.1979. On his representation, he was issued a caste certificate on 8.9.1992 as belonging to scheduled tribe. He filed a representation for reinstatement on 11.2.1993. The caste certificate was again cancelled on 17.7.1993. The petitioner preferred C.W.J.C. No.2972/94. On 28.6.1995 this Court found infirmity in the order of cancellation without opportunity to the petitioner. The order was set aside with liberty to pass fresh appropriate orders. Thereafter, the petitioner claims to have represented on 24.10.1995/6.11.1995. The writ petition does not contain any pleadings of the 2 manner in which the matter was pursued by the petitioner after 6.11.1995. Even the rejoinder to the counter affidavit does not make any statement to that effect. The present writ petition was then filed on 10.12.2009 whereupon the Union Of India made necessary enquiries from the issuing authorities with reference to the present application on 13.5.2010. Thereafter the State Authorities have passed final orders on 29.5.2010 refusing to restore his caste status as scheduled tribe. Learned counsel for the petitioner submitted that the petitioner had been pursuing his representation with the authorities throughout. Therefore, the question of any delay in approaching the Court does not arise. Even if there was any delay on his part, it becomes inconsequential in view of the impugned order dated 29.5.2010 passed by the State Respondents during the pendency of the writ petition. The latter order makes it more than explicit that the fault lay with the respondents who slept over his claims. There shall be continuity in the cause of action. He then sought to address the Court on the merits of the order dated 29.5.2010. Learned counsel for the respondents submitted that the order of termination dated 3 24.1.1979 has attained finality and was never questioned by the petitioner in any proceedings. The delay on part of the respondents in passing the final order shall not inure to the benefit of the petitioner and shall not condone the delay on his part. The petitioner was terminated on 24.1.1979. It is not the case of the petitioner that he questioned this termination before any competent Court of Law at any point of time. The termination therefore attained finality. This Court in C.W.J.C. No.2972/94 did not strike down the order dated 12.7.1993 canceling the caste certificate on merits, but on technicalities that the petitioner was not heard. There were no orders for his reinstatement, presumably because the petitioner sought none. It is not his case in the present writ application that he sought any such reliefs. The finality to the termination order dated 24.1.1979 therefore stood re-confirmed. If the respondents did not hold further enquiry in pursuance of the order of the Court, it was for the petitioner to pursue remedies appropriately and expeditiously. After the order of the Court dated 28.6.1995 he appears to have remained vigilant till 6.11.1995 and went to sleep thereafter till he filed the present writ application. If the respondents did not discharge their duties in C.W.J.C. No.1972/94, 4 the petitioner was equally negligent in pursing his remedies. True it is that after he filed the present writ application, the respondents have woken up and passed the impugned order on 29.5.2010. The question that arises is whether the passing of this fresh order on 29.5.2010 shall condone the delay on the part of the petitioner from 6.11.1995 to 10.12.2009. The Court has no hesitation in holding that the order was more in exercise of self-defence to obviate the possibility of being held up by the Court for contempt or non-compliance of the order in C.W.J.C. No.2972/94. The conclusion of this Court is fortified by the discussion contained in (2008) 10 SCC 115 ( C. Jacob v. Director of Geology and Mining) at paragraph Nos.8, 9, 11, 13 and 14 which read as follows:- “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 to such representations relating to old matters. Taking advantage of this 5 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 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 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 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. 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 an order is passed considering and rejecting 6 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. 13. Where an employee unauthorisedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the 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 emphasise the need for circumspection and care in issuing directions for “consideration”. If the representation 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.” Learned counsel for the petitioner has very fairly further acknowledged that even if he were to be reinstated he would have a service career of less than five years left. That is another aspect which cannot be 7 lost sight of. Delay has always been considered very vital in service cases. If this Court were to interfere on merits today and the petitioner is reinstated after consideration of the impugned order, if he succeeds, that shall create serious turbulence in service for those who may have marched ahead in service on seniority etc. In (1998) 2 SCC 523 (B.S. Bajwa v. State of Punjab) at page 526 at Para 7 it has been held as follows : “7. Having heard both sides we are satisfied that the writ petition was wrongly entertained and allowed by the Single Judge and, therefore, the judgments of the Single Judge and the Division Bench have both to be set aside. The undisputed facts appearing from the record are alone sufficient to dismiss the writ petition on the ground of laches because the grievance was made by B.S. Bajwa and B.D. Gupta only in 1984 which was long after they had entered the department in 1971-72. During this entire period of more than a decade they were all along treated as junior to the other aforesaid persons and the rights inter se had crystallised which ought not to have been reopened after the lapse of such a long period. At every stage others were promoted before B.S. Bajwa and B.D. Gupta and this position was known to B.S. Bajwa and B.D. Gupta right from the beginning as found by the Division Bench itself. It is well settled that in service matters the question of seniority should not be reopened in such situations after the lapse of a reasonable period because that results in disturbing the settled position which is not justifiable. There was inordinate delay in the present case for making such a grievance. This alone was sufficient to decline interference under Article 226 and to reject the writ 8 petition.” In the entirety of the discussion the Court holds that the writ petition is barred by gross unexplained delay and laches. It is accordingly dismissed. KC ( Navin Sinha, J.)