Punjab-Haryana High Court
Kesar Singh vs Pepsu Road Transport Corporation And … on 12 November, 2024
Neutral Citation No:=2024:PHHC:147615
CWP No.25608 of 2021
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.25608 of 2021
Date of decision: 12.11.2024
Kesar Singh
....Petitioner
Versus
Pepsu Road Transport Corporation and another
....Respondents
CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR
Present: Mr. Sunny Singla, Advocate
for the petitioner.
Mr. Rakesh Roy, Advocate
for Mr. Abhilaksh Gaind, Advocate
for the respondents.
NAMIT KUMAR J. (Oral)
1. The petitioner has invoked the writ jurisdiction of this
Court by filing the present petition under Articles 226/227 of the
Constitution of India, seeking a writ of certiorari for quashing various
punishment orders dated 13.11.1981 (Annexure P-3), 30.05.1986
(Annexure P-4), 29.08.1986 (Annexure P-5), 29.09.1986 (Annexure
P-6), 17.05.1988 (Annexure P-7) and 31.11.1989 (Annexure P-8),
whereby his two annual grade increments have been stopped with
cumulative effect. Further a writ of mandamus has been sought for
directing the respondents to revise the pay and pension of the petitioner
after releasing the benefit of annual increments, with all consequential
benefits along with interest @ 18% per annum.
2. Brief facts, as have been pleaded in the present petition, are
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that the petitioner was appointed as Conductor with the respondent –
Corporation on 03.02.1976 and retired as such on 30.09.2007, on
attaining the age of superannuation. It has further been pleaded that after
his retirement, the petitioner discovered that his annual increments and
ACP (Assured Career Progression) increments had been withheld by the
respondent – Corporation without any communication or reason, and he
was not provided with any orders or a copy of his service book. To
understand the basis of this action, the petitioner filed an RTI
application on 24.09.2021, but did not receive satisfactory response.
Later on, the respondent – Corporation provided documents to the
petitioner, including his service book, ACRs, and several orders dated
13.11.1981, 30.05.1986, 29.08.1986, 29.09.1986, 17.05.1988, and
31.11.1989 (Annexures P-3 to P-8), which revealed that withholding of
the increments was done in an arbitrary and illegal manner, without
issuing a show-cause notice or charge sheet as required under the
Punjab Civil Services (Punishment and Appeal) Rules, 1970. Despite
the petitioner’s ACRs being rated as “Average,” “Above Average,”
“Good,” and “Very Good,” his annual increments were stopped with
cumulative effect, causing him recurring financial loss. Furthermore, the
ACP increments, to which the petitioner was entitled, were withheld and
released later on. Hence, this writ petition.
3. Learned counsel for the petitioner submits that, upon his
retirement, the petitioner came to know that his annual increments and
ACP increments had been unjustifiably withheld by the respondent –
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3Corporation, without any formal communication or valid reasons and
despite filing a Right to Information (RTI) application on 24.09.2021,
the petitioner did not receive a satisfactory response from the
respondent – Corporation. He further submits that the respondent, in its
reply, provided certain documents, including the petitioner’s service
book, ACRs, and orders dated 13.11.1981, 30.05.1986, 29.08.1986,
29.09.1986, 17.05.1988, and 31.11.1989, however, a perusal of these
documents reveal that withholding of increments was done arbitrarily
and unlawfully, without issuing any show-cause notice or charge sheet
to the petitioner, which is in violation of the Punjab Civil Services
(Punishment and Appeal) Rules, 1970. He further submits that the ACP
increments to which the petitioner was entitled were delayed and
released later on, without any explanation for causing the delay. He
further submits that the action of the respondent – Corporation,
including the failure to communicate the reasons for withholding the
increments and not following the prescribed procedure, are in clear
violation of the principles of fairness, transparency, and due process as
laid down by the Hon’ble Supreme Court of India. In support of his
contentions, he has placed reliance upon the judgment of the Hon’ble
Supreme Court in “The State of Madhya Pradesh vs Syed
Qamarali”, 1967 SLR 228, “Kulwant Singh Gill vs The State of
Punjab”, 1991(1) RSJ 413, “Dev Dutt vs Union of India and others”,
2008(3) SCT 429, “Raghubir Singh vs General Manager, Haryana
Roadways, Hissar”, 2014(4) SCT 262, “State of Bihar vs
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4Kameshwar Prasad Singh” and other connected cases, 2000(2) SCT
889 as well as the judgment passed by this Court in CWP No.16147 of
2023 and other connected cases, titled as “Surjit Singh vs State of
Punjab and others”, decided on 30.01.2024.
4. Per contra, learned counsel for the respondents has opposed
the submissions made by learned counsel for the petitioner on the
ground that the petitioner’s claim regarding withholding of his annual
increment and ACP increments is without any merit as the withholding
was carried out in accordance with the Punjab Civil Services
(Punishment and Appeal) Rules, 1970, and the relevant departmental
orders. He further submits that the petitioner has failed to correctly
enclose the complete copies of the vernacular documents, specifically
the orders dated 13.11.1981, 30.05.1986, 29.08.1986, 29.09.1986,
17.05.1988 and 31.11.1989 (Annexures P-3 to P-8) as copies of these
orders annexed by the petitioner do not contain the endorsements made
on the original orders. These endorsements are an integral part of the
orders and are essential to fully understand the context and the
respondent’s actions. Lastly, he, inter alia, submits that besides other
issues, there is an inordinate, gross and unexplained delay in filing the
present writ petition for espousing his cause, therefore, the same is
liable to be dismissed on the ground of delay and laches.
5. I have heard learned counsel for the parties and perused the
record.
6. Admittedly, there is gross, inordinate and unexplained
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5delay ranging from 35 to 43 years in filing the present writ petition for
redressal of his grievance as the cause of action accrued to the petitioner
in the year 1981 onwards when his one increment without cumulative
effect was stopped and, therefore, at this point of time the petitioner
cannot be allowed to agitate the dead and stale issues. If the claim of the
petitioner was genuine, he could have agitated the same in the year 1981
onwards or within some reasonable time. It would be difficult for this
Court to entertain the present petition now i.e. on expiry of period of
35-43 years, which would unhesitatingly cause hardship and
inconvenience to the opposite parties.
7. The Hon’ble Supreme Court in “Yunus (Baboobhai) A
Hamid Padvekar vs State of Maharashtra Through its Secretary and
others”, 2009(2) SCT 24, while referring to the issue of delay and
latches, had held as follows:-
“8. Delay or laches is one of the factors which is to
be borne in mind by the High Courts when they exercise
their discretionary powers under Article 226 of the
Constitution of India, 1950 (in short the ‘Constitution’). In
an appropriate case the High Court may refuse to invoke
its extraordinary powers if there is such negligence or
omission on the part of the applicant to assert his right as
taken in conjunction with the lapse of time and other
circumstances, causes prejudice to the opposite party. Even
where fundamental right is involved the matter is still
within the discretion of the Court as pointed out in Durga
Prasad v. Chief Controller of Imports and Exports (AIR
1970 SC 769). Of course, the discretion has to be exercised
judicially and reasonably.
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9. What was stated in this regard by Sir Barnes
Peacock in Lindsay Petroleum Company v. Prosper
Armstrong Hurde etc. (1874) 5 PC 221 at page 239 was
approved by this Court in Moon Mills Ltd. v. Industrial
Courts (AIR 1967 SC 1450) and Maharashtra State
Transport Corporation v. Balwant Regular Motor Service
(AIR 1969 SC 329), Sir Barnes had stated:
“Now the doctrine of laches in Courts of
Equity is not an arbitrary or technical doctrine.
Where it would be practically unjust to give a
remedy either because the party has, by his conduct
done that which might fairly be regarded as
equivalent to a waiver of it, or where by his conduct
and neglect he has though perhaps not waiving that
remedy, yet put the other party in a situation in
which it would not be reasonable to place him if the
remedy were afterwards to be asserted, in either of
these cases, lapse of time and delay are most
material. But in every case, if an argument against
relief, which otherwise would be just, if founded
upon mere delay, that delay of course not amounting
to a bar by any statute of limitation, the validity of
that defence must be tried upon principles
substantially equitable. Two circumstances always
important in such cases are, the length of the delay
and the nature of the acts done during the interval
which might affect either party and cause a balance
of justice or injustice in taking the one course or the
other, so far as relates to the remedy.”
10. It would be appropriate to note certain decisions
of this Court in which this aspect has been dealt with in
relation with Article 32 of the Constitution. It is apparent
that what has been stated as regards that Article would
apply, a fortiori, to Article 226. It was observed in R.N
Bose v. Union of India (AIR 1970 SC 470) that no relief
can be given to the petitioner who without any reasonable
explanation approaches this Court under Article 32 after
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inordinate delay. It was stated that though Article 32 is
itself a guaranteed right, it does not follow from this that it
was the intention of the Constitution makers that this Court
should disregard all principles and grant relief in petitions
filed after inordinate delay.
11. It was stated in State of M.P. v. Nandlal (AIR
1987 SC 251) that the High Court in exercise of its
discretion does not ordinarily assist the tardy and the
indolent or the acquiescent and the lethargic. If there is
inordinate delay on the part of the petitioner and such
delay is not satisfactorily explained, the High Court may
decline to intervene and grant relief in exercise of its writ
jurisdiction. It was stated that this rule is premised on a
number of factors. The High Court does not ordinarily
permit a belated resort to the extraordinary remedy
because it is likely to cause confusion and public
inconvenience and bring in its trail new injustices, and if
writ jurisdiction is exercised after unreasonable delay, it
may have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was
pointed out that when writ jurisdiction is invoked,
unexplained delay coupled with the creation of third party
rights in the meantime is an important factor which also
weighs with the High Court in deciding whether or not to
exercise such jurisdiction.
12. In view of the aforesaid position we are not
inclined to interfere in this appeal which is dismissed
accordingly.”
8. Further the Hon’ble Supreme Court in State of
Uttaranchal and another v. Sri Shiv Charan Singh Bhandari and
others, 2013(6) SLR 629, while considering the issue regarding delay
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and laches and referring to earlier judgments on the issue, opined that
repeated representations made will not keep the issues alive. A stale or a
dead issue/dispute cannot be revived even if such a representation has
been decided either by the authority or by getting a direction from the
court as the issue regarding delay and laches is to be decided with
reference to original cause of action and not with reference to any such
order passed. Delay and 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, in a situation of that nature, will not be
attracted as it is well known that law leans in favour of those who are
alert and vigilant. Even equality has to be claimed at the right juncture
and not on expiry of reasonable time. Even if there is no period
prescribed for filing the writ petition under Article 226 of the
Constitution of India, yet it should be filed within a reasonable time. An
order promoting a junior should normally be challenged within a period
of six months or at the most in a year of such promotion. Though it is
not a strict rule, the courts can always interfere even subsequent thereto,
but relief to a person, who allows things to happen and then approach
the court and puts forward a stale claim and try to unsettle settled
matters, can certainly be refused on account of delay and laches. Any
one who sleeps over his rights is bound to suffer. An employee who
sleeps like Rip Van Winkle and got up from slumber at his own leisure,
deserves to be denied the relief on account of delay and laches. Relevant
paragraphs from the aforesaid judgment are extracted below:
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“13. We have no trace of doubt that the respondents could
have challenged the ad hoc promotion conferred on the
junior employee at the relevant time. They chose not to do
so for six years and the junior employee held the
promotional post for six years till regular promotion took
place. The submission of the learned counsel for the
respondents is that they had given representations at the
relevant time but the same fell in deaf ears. It is interesting
to note that when the regular selection took place, they
accepted the position solely because the seniority was
maintained and, thereafter, they knocked at the doors of the
tribunal only in 2003. It is clear as noon day that the cause
of action had arisen for assailing the order when the junior
employee was promoted on ad hoc basis on 15.11.1983. In
C. Jacob v. Director of Geology and Mining and another,
(2008) 10 SCC 115, a two-Judge Bench was dealing with
the concept of representations and the directions issued by
the court or tribunal to consider the representations and
the challenge to the said rejection thereafter. In that
context, the court has expressed thus:-
“Every representation to the Government for
relief, may not be replied on merits. 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 of9 of 26
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10action or revive a stale or dead claim.”
14. XXXX XXXX XXXX XXXX
15. XXXX XXXX XXXX XXXX
16. XXXX XXXX XXXX XXXX
17. In Bharat Sanchar Nigam Limited v. Ghanshyam
Dass (2) and others, (2011) 4 SCC 374, a three-Judge
Bench of the Hon’ble Supreme Court reiterated the
principle stated in Jagdish Lal v. State of Haryana, (1997)
6 SCC 538 and proceeded to observe that as the
respondents therein preferred to sleep over their rights and
approached the tribunal in 1997, they would not get the
benefit of the order dated 7.7.1992.
18. In State of T. N. vs. Seshachalam, (2007) 10 SCC
137, the Hon’ble Supreme Court, testing the equality
clause on the bedrock of delay and laches pertaining to
grant of service benefit, has ruled thus:-
“… 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.”
19. XXXX XXXX XXXX XXXX
20. In New Delhi Municipal Council v. Pan Singh and
others, (2007) 9 SCC 278, the Hon’ble Supreme Court has
opined that though there is no period of limitation provided
for filing a writ petition under Article 226 of the
Constitution of India, yet ordinarily a writ petition should
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be filed within a reasonable time. In the said case the
respondents had filed the writ petition after seventeen
years and the court, as stated earlier, took note of the delay
and laches as relevant factors and set aside the order
passed by the High Court which had exercised the
discretionary jurisdiction.
9. In a recent judgment by the Division Bench of this Court in
“Ram Kumar vs State of Haryana and others”, 2022 (3) SCT 346,
while rejecting the claim of the petitioner for counting of his ad hoc
service, for the purpose of seniority/pension and regularization in
service on completion of 02 years as per policy, held that the petition
filed by him suffered from gross, inordinate and unexplained delay in
approaching the High Court. In the said judgment, it has been held as
under:-
“10. What we wish to emphasize, in particular, is that
services of the appellant were regularized w.e.f.
01.04.1997. And, he was assigned a specific seniority
position in the cadre. Whereafter, he continued to serve the
department for nearly twenty five years, before attaining
the age of superannuation in January, 2022. Needless to
assert that during all these years, he availed all admissible
benefits, promotions, and retired as Inspector. Thus, it
rather appears that institution of the petition by the
appellant was speculative and an attempt to resurrect a
stale and dead claim. The Supreme Court, in New Delhi
Municipal Council v. Pan Singh & Ors., 2007(9) SCC
278, observed:
“15. There is another aspect of the matter
which cannot be lost sight of. Respondents herein11 of 26
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12filed a Writ Petition after 17 years. They did not
agitate their grievances for a long time. They, as
noticed herein, did not claim parity with the 17
workmen at the earliest possible opportunity. They
did not implead themselves as parties even in the
reference made by the State before the Industrial
Tribunal. It is not their case that after 1982, those
employees who were employed or who were
recruited after the cut-off date have been granted the
said scale of pay. After such a long time, therefore,
the Writ Petitions could not have been entertained
even if they are similarly situated. It is trite that the
discretionary jurisdiction may not be exercised in
favour of those who approach the Court after a long
time. Delay and laches are relevant factors for
exercise of equitable jurisdiction. See Govt. of W.B.
v. Tarun K. Roy And Others [(2004) 1 SCC 347],
Chairman, U.P. Jal Nigam & Anr. v. Jaswant
Singh And Anr. [2006 (12) SCALE 347] and
Karnataka Power Corpn. Ltd. through its
Chairman & Managing Director and Another v. K.
Thangappan and Another [(2006) 4 SCC 322]”
11. Similarly, in Jagdish Lal & Ors. v. State of Haryana
& Ors., (1997) 6 SCC 538, it was held by the Supreme
Court:
“That apart, as this Court has repeatedly
held, the delay disentitles the party to the
discretionary relief under Article 226 or 32 of the
Constitution. It is not necessary to reiterate all
catena of precedents in this behalf. Suffice it to state
that the appellant kept sleeping over their rights for
long and elected to wake up when they had the
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impetus from Vir Pal Chauhan and Ajit Singh’s
ratios………………… Therefore, desperate attempts of
the appellants to re-do the seniority had by them in
various cadres/grades though in the same services
according to 1974 Rules or 1980 Rule, are not
amenable to judicial review at this belated stage….”
12. In the wake of the position as sketched out above, we
are dissuaded to interfere with the impugned order and
judgment rendered by the learned single Judge. The appeal
being bereft of merit is, accordingly, dismissed.”
10. The Co-ordinate Bench of this Court in “Prem Nath and
others vs State of Punjab and others”, 2018(2) SCT 687, while
rejecting the claim of additional increments of acquisition of higher
qualifications has held as under:-
“3. It is the case set up on behalf of the petitioners
that they had all been appointed before 19.02.1979 and
had even improved/acquired higher qualifications before
19.02.1979 and as such there would be no difference
between the employees working with the Punjab
Government, holding corresponding post and the
employees like the petitioners who have worked for Punjab
Privately Managed Recognised Aided Schools. It is also
the assertion made by counsel representing the petitioners
that their claim would be covered in terms of decision
dated 02.07.2013 rendered by this Court in a bunch of writ
petitions including CWP No.8083 of 1989 titled as Radha
Krishan Narang and others vs. State of Punjab and
others.
4. Having heard counsel for the petitioners at length,
this Court is of the considered view that the claim of the
petitioners would not require any consideration on merits13 of 26
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14and the writ petition deserves to be dismissed on the sole
ground of delay and laches.
5. Placed on record and appended at Annexure P-1
are the particulars of the petitioners. The tabulation at
Annexure P-1 would show that all the petitioners stand
retired on various dates between the years 1995 to 2012.
Out of 32 petitioners in all, 22 petitioners superannuated
more than 10 years back.
6. There is no justification coming forth as regards
the inordinate delay in having approached the Writ Court.
There is also no explanation put forth by the petitioners as
to why the claim raised in the instant petition was not
agitated by the petitioners while they were in service. The
entire thrust of the submissions advanced by counsel is that
similarly situated employees had approached this Court
and have been granted relief.
7. The issue regarding delay in invoking the
extraordinary writ jurisdiction under Article 226 of the
Constitution of India was considered by the Hon’ble
Supreme Court in Chairman, U.P. Jal Nigam and another
v. Jaswant Singh and another (2006)11 SCC 464. In such
case, certain employees raised the issue that they were not
liable to be retired at the age of 58 years but should be
permitted to continue in service till they attain the age of
60 years. Such employees were still in service when the
writ petitions were filed. The writ petitions were ultimately
allowed. Placing reliance upon such judgment, some of the
employees, who had already superannuated, filed writ
petitions seeking the same benefit. Even such petitions
were allowed by the High Court in terms of following the
earlier judgment. The judgment of the High Court was
challenged before the Apex Court and wherein while14 of 26
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15referring to earlier judgments in Rup Diamonds v. Union
of India, (1989)2 SCC 356; “Jagdish Lal v. State of
Haryana, (1997)6 SCC 538 and Government of West
Bengal v. Tarun K. Roy, (2004)1 SCC 347, it was opined
that persons who approached the Court at a belated stage
placing reliance upon the order passed in some other case
earlier, can be denied the discretionary relief on the
ground of delay and laches. The relevant observations
made by the Supreme Court are contained in Paras 5, 6
and 16 of the judgment and are extracted here under:-
“5. So far as the principal issue is
concerned, that has been settled by this court.
Therefore, there is no quarrel over the legal
proposition. But the only question is grant of
relief to such other persons who were not
vigilant and did not wake up to challenge
their retirement and accepted the same but
filed writ petitions after the judgment of this
court in Harwindra Kumar v. Chief
Engineer, Karmik, (2005) 13 SCC 300.
Whether they are entitled to same relief or
not? Therefore, a serious question that arises
for consideration is whether the employees
who did not wake up to challenge their
retirement and accepted the same, collected
their post-retirement benefits, can such
persons be given the relief in the light of the
subsequent decision delivered by this court?
6. The question of delay and laches has
been examined by this court in a series of
decisions and laches and delay has been
considered to be an important factor in
exercise of the discretionary relief under
Article 226 of the Constitution. When a person
who is not vigilant of his rights and
acquiesces with the situation, can his writ
petition be heard after a couple of years on
the ground that same relief should be granted
to him as was granted to person similarly15 of 26
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16situated who was vigilant about his rights and
challenged his retirement which was said to
be made on attaining the age of 58 years. A
chart has been supplied to us in which it has
been pointed out that about 9 writ petitions
were filed by the employees of the Nigam
before their retirement wherein their
retirement was somewhere between 30.6.2005
and 31.7.2005. Two writ petitions were filed
wherein no relief of interim order was passed.
They were granted interim order. Thereafter a
spate of writ petitions followed in which
employees who retired in the years 2001,
2002, 2003, 2004 and 2005, woke up to file
writ petitions in 2005 and 2006 much after
their retirement. Whether such persons should
be granted the same relief or not?
xx xx xx
16. Therefore, in case at this belated stage if
similar relief is to be given to the persons who
have not approached the court that will
unnecessarily overburden the Nigam and the
Nigam will completely collapse with the
liability of payment to these persons in terms
of two years’ salary and increased benefit of
pension and other consequential benefits.
Therefore, we are not inclined to grant any
relief to the persons who have approached the
court after their retirement. Only those
persons who have filed the writ petitions when
they were in service or who have obtained
interim order for their retirement, those
persons should be allowed to stand to benefit
and not others.”
[Emphasis supplied]
8. The issue of delay was also dealt with by this
Court in Tarsem Pal vs. Punjab State Power Corporation
Limited and others, 2013 (3)SLR 314. In the case of
Tarsem Pal(supra), the petitioner was serving as a Clerk
with the respondent-Corporation and had retired on
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31.03.2005. Claim in the writ petition was to grant to him
the benefit of proficiency set up in the pay scale on
completion of 23 years of service from the due date as per
policy of the Corporation. During the service career, he
had not agitated the claim for increments. For the first
time, such claim had been made on 28.02.2005 i.e. just one
month prior to superannuation. While non-suiting the
petitioner on account of delay and laches it was held as
follows:-
“11. In the aforesaid judgments, it has
been clearly laid down that discretionary
relief in a writ jurisdiction is available to a
party who is alive of his rights and enforces
the same in court within reasonable time. The
judgment in another case does not give a
cause of action to file a writ petition at a
belated stage seeking the same relief. Such
petitions can be dismissed on account of delay
and laches. As has already been noticed above
in the present case as well, the petitioner
joined service in the year 1965 and retired in
the year 2005, but raised the issue regarding
benefit of proficiency step up in the pay scale
on completion of 23 years of service from the
due date more than five years after his
retirement referring to a judgment of this
court and filed the petition claiming the same
relief.
12. The petitioner retired from service
on 31.3.2005 and the claim pertaining to the
benefit of proficiency step up, which may be
admissible to the petitioner during his service
career, was sought to be raised more than five
years after his retirement, the claim made at
such a late stage deserves to be dismissed on
account of delay and laches only. The
petitioner could raise a grievance about the
pay scales admissible to him or the last pay
drawn by him within a reasonable time after17 of 26
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18his retirement. He cannot be permitted to
raise the same at any time on the plea that the
same is recurring cause of action.
13. Considering the enunciation of law,
as referred to above, in my opinion, the
petitioner herein is not entitled to the relief
prayed for and the petition deserves to be
dismissed merely on account of delay and
laches.”
9. At this stage, counsel appearing for the
petitioners would make an attempt to overcome the
obstacle of delay by placing reliance upon a Full Bench
Judgment of this Court in Saroj Kumar vs. State of
Punjab, 1998(3) SCT 664. Counsel would argue that as
per dictum laid down in Saroj Kumar’s case(supra),
matters of pay fixation involve a recurring cause of action
and as such, writ petitions for such claim cannot be
dismissed on the ground of delay and laches and the Court
at the most, may restrict the arrears upto 38 months from
the date of filing of the petition and disallow the arrears
for the period for which even a suit had become time
barred.
10. The reliance placed by counsel upon the
judgment in Saroj Kumar’s case, is wholly misplaced. The
observations and aspect of delay in Saroj Kumar’s case,
were in the light of the judgment of the Supreme Court in
M.R. Gupta vs. Union of India and others, 1995(4) RSJ
502. In M.R. Gupta’s case(supra), it had been categorically
held that so long as an employee “is in service” a fresh
cause of action arises every month when he is getting his
monthly salary on the basis of a wrong calculation made
contrary to rules. It was further held that the claim to be
awarded the correct salary on the basis of a proper pay
fixation “is a right which subsists during the entire tenure
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of service”.
11. In the present case, however the petitioners
choose not to agitate their claim while in service. It is
much subsequent to their superannuation that they have
woken up and seek to gain impetus from certain decisions
that may have been rendered in the case of similarly
situated employees.
12. Considering the dictum of law as laid down in
Chariman, U.P. Jal Nigam’s case (supra), the petitioners
herein are not entitled to any releif as prayed for and the
petition deserves to be dismissed on the sole ground of
delay and laches.
13. Ordered accordingly.”
11. The Division Bench of this Court in “H.S. Gill vs Union of
India and others”, 2016(2) SCT 477, has held that an employee cannot
claim the revised pay scale after retirement once he has been receiving
the pay scale granted by the employer for the last 09 years. The relevant
portion from the said judgment, reads as under:-
“14. The petitioner is also not entitled to any relief
on account of principle of delay and laches. He has been
receiving the pay in the pay scale of Rs.6500-10500 right
from his transfer to CSIO, Chandigarh i.e. 2.7.2002. For
the first time, he moved the representation on 29.8.2011,
so, he kept mum for about 9 years. Thus, the claim of the
petitioner is highly belated and stale.”
12. The reliance placed by the learned counsel for the
petitioner, upon judgments referred to above, are clearly distinguishable
and not applicable to the facts of this case as no question of delay was
involved/adjudicated in the said judgments.
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13. On a pointed query raised by the Court as to how the
present petition is maintainable on account of huge delay, as the
impugned orders relate to year 1981, 1986, 1988 and 1989, learned
counsel for the petitioner submits that punishment of stoppage of two
annual increments with cumulative effect, gives rise to recurring cause
of action every month, therefore, there is no delay in filing the present
petition.
14. The contention of the petitioner that stoppage of
increments with cumulative effect is a recurring cause of action, cannot
be accepted as in “Gurbax Singh vs Pepsu Board Transport
Corporation and others”, 2014 SCC Online (P&H) 8063, it has been
held by this Court that punishment of stoppage of increments is not a
recurring cause of action and the punishment order of stoppage of
increments has to be challenged before the Civil Court within 03 years
and the suit filed after 03 years is barred by limitation. The operative
part of the said judgment, reads as under:-
“Learned counsel for the appellant has argued that
the stoppage of increments with cumulative effect has a
recurring cause of action affecting pay and allowance
payable to him and therefore, the suit cannot be said to be
barred by limitation. Reliance is placed upon judgment of
this Court in Malkiat Singh v. State of Haryana, 2008 (2)
SLR 192 and Yog Raj Mittal, since deceased through is
legal representatives v. State of Punjab, 2008 (4) SLR
169.
The question of law as to whether, the punishment of
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21or that suit is to be instituted within three years of the
passing of the order was considered by the Division Bench
is RSA No. 1927 of 1994 titled ‘Amar Singh v. State of
Punjab’ decided on 03.05.2006. In the aforesaid case, the
challenge was to 12 orders in respect of stoppage of
increments with or without cumulative effect. Such suit was
filed after three years of passing of the last of such order as
well. The learned Division Bench relied upon an earlier
judgment of the Division Bench in Randhir Singh v. State
of Haryana 1994 (3) RSJ 110 to hold that the suit
instituted on 12.04.1990 against the 12 order passed on
23.07.1984 is clearly barred by limitation and had been
rightly dismissed by the lower Appellate Court. While
dismissing the appeals filed by the plaintiff, the Bench also
placed reliance on two judgments of the Supreme Court in
Punjab State v. Darshan Kumar 1995 Supp (4) SCC 220
and State of Punjab v. Rajinder Singh, Conductor 1999
SCC (L&S) 664.
It has been held that the suit for declaration challenging
the order of punishment of the stoppage of increments has
to be disputed before the civil court within three years. The
suit filed after three years is barred by limitation.”
15. To the same effect is the judgment passed in “Guru Dutt
vs Pepsu Road Transport Corporation”, 2001(3) SCT 1066, wherein it
has been held as under:-
“2. The plaintiff has been non-suited by the first
appellate Court for the following reasons given in para
Nos. 8 to 11 of the impugned judgment :-
“In the instant appeal, the only point for
determination is whether the suit filed by the
appellant was within limitation. On this point Shri21 of 26
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22S.K. Sharma, ld. counsel for appellant has mainly
argued that the suit filed by the appellant was within
limitation because right of increment is recurring
right. He has cited ruling State of Punjab v. Gurdev
Singh, Ashok Kumar, 1991(3) SCT 93 (SC) : AIR
1991 Supreme Court 2219, that the limitation for
challenging the impugned orders is three years. If
the party approaches the Court after the expiry of
statutory period, the Court cannot give the
declaration sought for. In the supra ruling it has
been held as under:-
“A suit for declaration that an order of
dismissal or termination from service passed
against the plaintiff dismissed employee is
wrongful, illegal or ultra vires is governed by
Article 113. It cannot be said that there is no
limitation for instituting the suit for
declaration by a dismissed or discharged
employee on the ground that the dismissal or
discharge was void or inoperative. If a suit is
not covered by any of the specific articles
prescribing a period of limitation, it must fall
within the residuary article. The purpose of
the residuary article it is to provide for cases
which would not be covered by any other
provision in the Limitation Act. The party
aggrieved by the invalidity of the order has to
approach the Court for relief of declaration
that the order against him is inoperative and
not binding upon him. He must approach the
Court within the prescribed period of
limitation. If the statutory time limit expires
the Court cannot give the declaration sought
for”.
Similar view was held by our own Hon’ble
High Court in State of Punjab v. Balbir Kaur,
1996(3) Punjab Law Reporter 795 in which the
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penalty of withholding one increment with
cumulative effect was imposed and it was held that
the period of limitation to challenge the said order
was three years as provided under Article 113 of the
Limitation Act (36 of 1963). In para No. 9, it was
held that :
“………The order of penalty, may be illegal or
otherwise, can only be set aside within a
period of three years from the date of cause of
action accrued to the Government employee.
In the present case cause of action accrued to
the plaintiff, when the order of penalty was
initially passed on 30.8.1993 and later on
8.5.1986 when the order of penalty was
modified. Therefore, the suit to get these
orders declared as illegal and void ought to
have been filed within a period of three years
from the latter dated viz 8.5.1986 as by virtue
of this order right to revise salary by the
employee on expiry of the month was put to an
end. The order of penalty still stands, it
having not been set aside within the period of
limitation. Once that is so, it was not open to
the Courts below to grant relief as has been
granted in the present case.”
To the similar effect are rulings Punjab State
v. Hardev Singh, 1997(2) SCT 101 (P&H) : 1997(1)
PLR 669, State of Punjab v. Babu Singh, 1996(2)
SCT 91 (P&H) : 1996 PLR 482 and the Punjab
State v. Kulwinder Singh, 1995(2) PLR 718.
9. On the other hand, ruling 1996(2) AIJ 652 (supra)
cited by the learned counsel for the appellant do not
apply to the facts of the present case and is quite
distinguishable. In the said ruling the delinquent
official has claimed arrears of increment and it was
held by their Lordships that no doubt the right to
increment is a recurring right and the petitioner is
entitled to the same, but in view of the laches on the
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part of the (petitioner) payment of any arrears of the
increments prior to 1990 was declined. Similarly, the
other rulings State of Punjab v. Sandhu Singh,
1993(2) Recent Services Judgments 766, Punjab
State v. Paramjit Singh, 1992(1) Punjab Law
Reporter 417 and State of Punjab v. Parkash
Singh, 1993(3) SCT 394 (P&H) : 1992(8) SLR 689
are also quite distinguishable and do not apply to
the facts of the present case.
10. As far as the ruling State of Madhya Pradesh v.
Syed Qamarali, 1967 Services Law Reporter 228
cited by the learned counsel for the appellant is
concerned, the same is also not applicable to the
facts of the present case in view of ruling AIR 1991
Supreme Court 2219 (supra) cited by the learned
counsel for the respondents.
11. Thus, relying upon the supra authorities, I hold
that the period of limitation for challenging the
impugned orders was within three years. The
appellant has failed to file the suit within three years
and as such his suit has been rightly dismissed by
the learned trial Court being time barred. The
learned trial Court has, therefore, rightly
appreciated the evidence while dismissing the suit
being time barred and thus, I affirm the same”.
3. Faced with this difficulty, the learned counsel for the
appellant submitted that both the Courts below fell in error
by holding that the suit of the plaintiff was beyond
limitation. He submitted that the case pertains to the
arrears of salary of the plaintiff and in these circumstances
there will be no limitation. In support of his contention, the
learned counsel for the appellant has relied upon 1996(1)
SCT 8, M.R. Gupta v. Union of India and others. I do not
subscribe to the argument of the learned counsel for the
appellant. The cited judgment is distinguishable on facts.
In fact the plaintiff was challenging the order dated
18.11.1971 and other orders dated 7.4.1972, 18.7.1975
and 17.2.1977 vide which his two annual increments with
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cumulative effect were stopped and the period with effect
from 9.1.1977 to 21.1.1977 was treated as leave without
pay. The cause of action arose to the plaintiff on the date of
the passing of these orders. Resultantly, the suit ought to
have been filed by the plaintiff within three years. The
present suit was filed in the year 1991 which was
hopelessly barred by limitation. There is no error of law on
the part of the Courts below.
No merit. Dismissed.
Appeal dismissed.”
16. The instant petition suffers from inordinate and
unexplained delay, with the cause of action purportedly having arisen in
1981 onwards, when the petitioner’s increments were withheld. The
petitioner has waited for over 35 to 43 years to approach this Court, and
such delay in filing the writ petition is gross and unjustifiable. The
Courts are constantly of the expectations that a litigant will always
approach it in trueness and with sense of responsibility. The petitioner’s
failure to annex the complete and accurate copies of the documents i.e.
orders dated 13.11.1981, 30.05.1986, 29.08.1986, 29.09.1986,
17.05.1988, and 31.11.1989 (Annexures P-3 to P-8), show the lethargic
and indolent approach of the petitioner which in any manner, the Court
cannot be allowed to tolerate.
17. In view of the foregoing discussion and abovesaid
authoritative enunciation of law by the Hon’ble Supreme Court and this
Court, the aforesaid issue as raised in the present writ petition cannot be
allowed to be agitated at this belated stage accordingly, the present
petition is dismissed on the ground of delay and latches with costs of
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Rs.10,000/-, to be deposited with the Punjab and Haryana High Court
Lawyers Welfare Fund.
(NAMIT KUMAR)
JUDGE
12.11.2024
yakub
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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