Suresh Kumar v. State Of Punjab And ORS
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18. In "
, this Court summarized the settled principles in the following manner:
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"7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought is sought by %ling a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception.
If the grievance is in respect of any order or administrative decision which related to or a-ected several others also, and if the reopening of the issue would a-ect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re%xation of pay or pension, relief may be granted in spite of delay as it does not a-ect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc.. , a-ecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply.
As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of %ling of the writ petition."
19. Close to the facts of this case, in " ! " #$% &' " ((( , this Court, having found that the employee suddenly brought up a challenge to the order of termination of his services after 20 years and claimed all consequential bene%ts, held that the relief sought for was inadmissible. The legal position in this regard was laid out in the following terms: "10. Every representation of the Government for relief, may not be applied 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 of action or revive a stale or dead claim.
11. When a decision 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 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.
12. When a government abandons service to take alternative employment or to attend to personal a-airs, 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 continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice.
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 discipline, 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 %nancial burden, as a result of a routine order for back wages."
20. Taking into consideration the cumulative e-ect of the facts in this case, coupled with the legal principles cited above, we are satis%ed that the claim of the respondent is stale, highly belated, time barred, and the same ought not to have been entertained by the Tribunal or the High Court after a span of over three decades.
21. We reiterate that undue sympathy and a perceived liberal approach by a judicial forum can lead to signi%cant adverse consequences. It not only gives rise to illegitimate expectations in the mind of fence sitting employees, but also leads to undue burdens on the public exchequer. Not only this, the indulgence
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shown by a Court solely on equitable considerations, dehors the law, breeds indiscipline in public services and incorrigible employees start looking for a dividend on the period of their absence or for dereliction of duty. While there is no evidence to suggest that the respondent deliberately absented herself from duty, the facts speak for themselves in that she failed to take any recourse provided under law for more than three decades. We may say at the cost of repetition that the respondent had hardly served as an untrained teacher on temporary basis for a period of 2h years and in terms of the impugned judgment of the High Court, she has been held entitled to get arrears of pay of more than 40 years, besides all the retiral bene%ts.
We are, therefore, of the view that the High Court ought not to have drawn adverse inferences against the appellants or put the entire onus on them to prove that the respondent was unjusti%ably denied the resumption of duties. The approach of the High Court in this regard is completely erroneous and contrary to the settled principles of law. The impugned Judgment thus cannot sustain and is liable to be set aside.
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