{"id":236513,"date":"2009-09-30T00:00:00","date_gmt":"2009-09-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-kannaiah-vs-the-commissioner-and-secretary-on-30-september-2009"},"modified":"2018-04-22T02:29:20","modified_gmt":"2018-04-21T20:59:20","slug":"k-kannaiah-vs-the-commissioner-and-secretary-on-30-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-kannaiah-vs-the-commissioner-and-secretary-on-30-september-2009","title":{"rendered":"K.Kannaiah vs The Commissioner And Secretary on 30 September, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
K.Kannaiah vs The Commissioner And Secretary on 30 September, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED : 30.09.2009\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE K.CHANDRU\n\nW.P.NOs.32048 and 35859 OF 2006\n(O.A.NOs.3417 and 3560 OF 1998)\n\n\nK.Kannaiah\t\t\t\t..  Petitioner in\n\t\t\t\t\t    W.P.No.32048\/2006\n\nA.N.Venugopal\t\t\t\t..  Petitioner in\n\t\t\t\t\t    W.P.No.35859\/2006\n\n\tVs.\n\n1.The Commissioner and Secretary,\n  Government of Tamilnadu-PWD\n  Fort St. George,\n  Chennai-2.\n2.The Chief Engineer, PWD, WRO,\n  Design Research and Construction\n  Support, Chepakkam,\n  Chennai-5.\n3.The Superintending Engineer PWD,\n  WRO Designs Circle,\n  Chennai-5.\n4.The Executive Engineer PWD,\n  Soil Mechanics and Research Divin.,\n  Cheppakkam, Chennai-5.\t\t..  Respondents in\t\t\t\t\t    both the petitions <\/pre>\n
\tThese writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to quash the impugned order, dated 25.3.98 in Lr.No.E2\/3172\/96 on the file of the third respondent and to direct him to refix the pay scale of the applicant from 1.6.1984 i.e. the date of effect of IV Pay Commission as per G.O.567 Finance (pay cell) Department, dated 1.8.1992 in the cadre of Lab Attender Grade-I and to direct the payment of arrears of salary and consequent monetary benefits.\n<\/p>\n
\tFor Petitioners : Mr.R.G.Annamalai<\/p>\n
\tFor Respondents : Mr.P.Gurunathan, GA<\/p>\n
– – – –\n<\/p>\n
COMMON ORDER<\/p>\n
\tHeard both sides.\n<\/p>\n
\t2.These writ petitions arose out of O.A.Nos.3417 and 3560 of 1998 filed by the petitioners before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, they were transferred to this court and were renumbered as W.P.Nos.32048 and 35859 of 2006.\n<\/p>\n
\t3.The petitioners sought for the issuance of a writ of   certiorarified mandamus to quash the impugned order, dated 25.3.98 in Lr.No.E2\/3172\/96 on the file of the third respondent and to direct him to refix the pay scale of the applicant from 1.6.1984 i.e. the date of effect of IV Pay Commission as per G.O.567 Finance (pay cell) Department, dated 1.8.1992 in the cadre of Lab Attender Grade-I and to direct the payment of arrears of salary and consequent monetary benefits.\n<\/p>\n
\t4.At the time of filing of the OA, the first petitioner was 64 years old and the second petitioner was 62 years old. Both the petitioners challenged the order of the third respondent dated 25.3.98 in rejecting their claim for designating their posts as Laboratory Attendant and for consequential refixation of their pay. The petitioners after their retirement sent representation, dated 3.9.97 and requested that they should be designated as Laboratory Attenders and as they were senior to one V.Thirunavukkarasu, who was given the benefit of pay fixation in terms of G.O.Ms.No.567, Finance, dated 1.8.92, wherein the post of Laboratory Attendant Grade II was merged with the post of Laboratory Attendant Grade I with monetary benefits from 1.4.92. Immediately after sending representation, they filed OA Nos.442 of 98 and 443 of 1998 before the Tribunal, directing the respondents  to dispose of their representation within a time frame. It is pursuant to this direction, the third respondent passed the impugned order. In para 2 of the impugned order it was stated that the post held by the petitioners were encadered as Laboratory Attendant by G.O.Ms.No.1574, dated 2.8.84 and they also retired  only as Laboratory Attendants. The petitioner neither during their service nor immediately after retirement staked their claim for such pay fixation. Their comparison of the case with one Thirunavukkarasu was not comparable. Therefore, they once again filed the present OAs before the tribunal.\n<\/p>\n
\t5.The petitioners never explained before the Tribunal as to the enormous delay in moving the tribunal, since the tribunal is circumscribed by the limitation prescribed under Section 21 of the Act. In this context, it is necessary to refer to the judgment of the Supreme Court in Secy. to Govt. of India v. Shivram Mahadu Gaikwad reported in 1995 Supp (3) SCC 231. The following passage found in paragraph 2 of the said judgment may be usefully extracted below:\n<\/p>\n
2. The learned counsel for the Union of India raised a preliminary contention, namely, that the application was filed almost after about four years from the date of discharge and, therefore, it was clearly barred by Section 21 of the Administrative Tribunals Act, 1985. He pointed out that this question was squarely raised in the counter filed in answer to the respondents application in the following terms:\n<\/p>\n
These respondents state that the applicant herein is challenging the order dated 7-10-1986 discharging him from the service and has filed this application on 14-9-1990, as such this application is barred by the provisions of limitation under Section 21 of the Central Administrative Tribunals Act, 1985.
\nWhen we turn to the judgment of the Tribunal we find that there is no mention about the question of limitation even though it stared in the face. It would immediately occur to anyone that since the order of discharge was of 7-10-1986 and the application was filed in 1990, it was clearly barred by limitation unless an application for condoning the delay was made under Section 21(3) of the Administrative Tribunals Act. No such application was in fact made. Even if it was the contention of the employee that he was suffering from schizophrenia, that could have been projected as a ground for condonation of delay under sub-section (3) of Section 21 of the said statute. Even otherwise without insisting on the formality of an application under Section 21(3) if the Tribunal had dealt with the question of limitation in the context of Section 21 we may have refrained from interfering with the order of the Tribunal under Article 136, but it seems that the Tribunal totally overlooked this question which clearly stared in the face. Even the employee made no effort to explain the delay and seek condonation. We find no valid explanation on record for coming to the conclusion that the case for condonation of delay is made out. In the circumstances, there is no doubt that the application was clearly barred by limitation. It is also difficult to understand how the Tribunal could have awarded full back wages even for the period of delay for which the employee was solely responsible. However, since application itself is barred by limitation under Section 21 of the Administrative Tribunals Act, it deserves to be dismissed.\n<\/p>\n
\t6.The said judgment came to be followed in the subsequent judgment of the Supreme Court in Ramesh Chand Sharma v. Udham Singh Kamal<\/a> reported in (1999) 8 SCC 304.  The following passage found in paragraph 7 may be usefully extracted below:\n<\/p>\n
7. On a perusal of the materials on record and after hearing counsel for the parties, we are of the opinion that the explanation sought to be given before us cannot be entertained as no foundation thereof was laid before the Tribunal. It was open to the first respondent to make proper application under Section 21(3) of the Act for condonation of delay and having not done so, he cannot be permitted to take up such contention at this late stage. In our opinion, the OA filed before the Tribunal after the expiry of three years could not have been admitted and disposed of on merits in view of the statutory provision contained in Section 21(1) of the Administrative Tribunals Act, 1985. The law in this behalf is now settled (see Secy. to Govt. of India v. Shivram Mahadu Gaikwad1).\n<\/p>\n
\t7.Mr.R.G.Annamalai, learned counsel for the petitioners submitted that earlier the Tribunal has directed their representation to be disposed of in accordance with law and no sooner when orders were passed, they had moved the tribunal and therefore,  there was no delay in moving the tribunal for the second time. The Supreme Court had held that the court should not direct representation should be considered when they were submitted belatedly, thereby reviving an old cause of action. The Supreme Court in C. Jacob v. Director of Geology and Mining<\/a> reported  in (2008) 10 SCC 115. Paragraphs 8 to 14 of the said judgment may be usefully extracted below:\n<\/p>\n
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 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.\n<\/p>\n
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.\n<\/p>\n
10. 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 of action or revive a stale or dead claim.\n<\/p>\n
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 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.\n<\/p>\n
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 continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice.\n<\/p>\n
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.\n<\/p>\n
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.\n<\/p>\n
\t8.In the light of the above, it can be clearly seen that the petitioners were guilty of laches in moving the Tribunal and hence their writ petitions are liable to be dismissed on this short ground. Accordingly, both the writ petitions stand dismissed No costs.\n<\/p>\n
vvk
\nTo\n<\/p>\n
1.The Commissioner and Secretary,
\n  Government of Tamilnadu-PWD
\n  Fort St. George,
\n  Chennai-2.\n<\/p>\n
2.The Chief Engineer, PWD, WRO,
\n  Design Research and Construction
\n  Support, Chepakkam,
\n  Chennai-5.\n<\/p>\n
3.The Superintending Engineer PWD,
\n  WRO Designs Circle,
\n  Chennai-5.\n<\/p>\n
4.The Executive Engineer PWD,
\n  Soil Mechanics and Research Divin.,
\n  Cheppakkam,
\n  Chennai 5<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K.Kannaiah vs The Commissioner And Secretary on 30 September, 2009 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.32048 and 35859 OF 2006 (O.A.NOs.3417 and 3560 OF 1998) K.Kannaiah .. Petitioner in W.P.No.32048\/2006 A.N.Venugopal .. Petitioner in W.P.No.35859\/2006 Vs. 1.The Commissioner and Secretary, Government […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-236513","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK.Kannaiah vs The Commissioner And Secretary on 30 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/k-kannaiah-vs-the-commissioner-and-secretary-on-30-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"K.Kannaiah vs The Commissioner And Secretary on 30 September, 2009 - 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