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Madhya Pradesh High Court · body

2010 DIGILAW 490 (MP)

Qadeer Mohd. v. State of M. P.

2010-04-28

R.S.JHA

body2010
ORDER R.S. Jha, J. 1. Heard on the question of admission. 2. The petitioner has filed this petition praying for a direction to the respondent/authorities to count his service from 12-9-1950 to 31-10-1956 rendered under the erstwhile State of Rewa for the purposes of computing his pension. 3. The brief facts leading to the filing of the present petition by the petitioner are that the petitioner was initially appointed as a Patwari on 12-9-1950 in the erstwhile Rewa State. After coming into force of the State Reorganization Act, 1956, Rewa State was merged in the State of M.P. and all the assets and liabilities of the Rewa State were taken over by the State of M.P. with effect from 1-11-1956. The petitioner continued to render service and ultimately superannuated with effect from 31-12-1996. 4. It is submitted that the petitioner was paid pension in the year 1996 itself by the respondent/authorities. However, while doing so, the petitioner's services were counted from 1-11-1956 onwards excluding the period from 12-9-1950 to 31-10-1956 and, therefore, the petitioner being aggrieved approached the Competent Authority praying for refixation of his pension by counting the period of service rendered by him under the erstwhile State of Rewa from 12-9-1950 to 31-10-1956 but the respondent authorities rejected the petitioner's representation by order dated 6-1-1997, a copy of which has been filed by the petitioner as Annexure P-1. 5. The petitioners has now, i.e., after thirteen years, filed the present petition praying for a direction to the respondent/authorities to count the services rendered by him in the erstwhile State of Rewa between 12-9-1950 and 31-10-1956 for the purpose of refixation of his pension. 6. From a perusal of the documents filed by the petitioner with the present petition, it is evident that the petitioner superannuated in 1996, that he was paid pension excluding the period between 12-9-1950 and 31-10-1956 in the year 1996, that the petitioner filed a representation against the alleged wrong fixation which was rejected by the respondent/authorities on 6-1-1997 and that the petitioner did not challenge or assail the order dated 6-1-1997 and accepted the same, in fact he has not challenged it even in the present petition. It is also an admitted fact that suddenly after a long lapse of 13 years, the petitioner has filed the present petition before this Court claiming counting of the services rendered by him between 12-9-1950 and 31-10-1956 without challenging the order dated 6-1-1997 by which his claim was rejected. 7. It is submitted by the learned Counsel for the petitioner that the petition does not suffer from any delay and laches as the act of the respondents in not counting the services of the petitioner between 12-9-1950 and 31-10-1956 has seriously prejudiced the fixation of petitioner's pension who has been getting less amount of pension every month and, therefore, the cause of action is a recurring or continuing one. 8. I have heard the learned Counsel for the petitioner at length. From a narration of the above mentioned facts, it is clear that the issue regarding the petitioner's grievance of non-counting of his service rendered in the erstwhile State of Rewa stood rejected by the rejection of his representation by order dated 6-1-1997 and remained unchallenged and has, therefore, attained finality. In the circumstances, it cannot be said that the cause of action is a continuing one as it did not arise every month having been given quietus by the order dated 6-1-1997. In fact, the cause of action arose on 6-1-1997 and not thereafter when the petitioner's claim was rejected. 9. After rejection of the petitioner's representation the entitlement of the petitioner to claim counting of the aforementioned period of service for the purposes of determination of pension and the liability of the respondents to pay enhanced pension did not arise and ceased to exist and did not accrue from day to day or month to month as alleged by the petitioner and, therefore, it cannot be said to give the petitioner a continuing cause of action. As the claim of the petitioner stood finally decided by order dated 6-1-1997, the respondents were not bound to pay revised pension to the petitioner thereafter as the petitioner's rights stood concluded finally and, therefore, the respondents did not commit any continuous wrong or inflict any continuing injury upon the petitioner from day to day or month to month while paying pension to him in accordance with the concluded determination of pension affirmed by order dated 6-1-1997. 10. 10. In the case of Commissioner of Wealth Tax, Amritsar v. Suresh Seth (1981) 2 SCC 790 , the Supreme Court while dealing with the question as to what is a continuing wrong has held as under: 11. ...In the instant case the contention is that the wrong or the default in question has been altered into a continuing wrong or default giving rise to a liability de die in diem, that is, from day to day. The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default. It is reasonable to take the view that the Court should not be eager to hold that an act or omission is a continuing wrong or default unless there are words in the statute concerned which make out that such was the intention of the Legislature.... Explaining the expression 'a continuing cause of action' Lord Lindley in Hole v. Chard Union (1894) 1 Ch D 299 : 63 LJ Ch 469 : 70 LT 52, observed: What is the continuing cause of action? Speaking accurately, there is no such thing; but what is called a continuing cause of action is a cause of action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought. 12. In the same decision, Lord Justice A.L. Smith, who concurred with the above view said: If once a cause of action arises, and the acts complained of are continuously repeated, the cause of action continues and goes on de die in diem. It seems to me that there was a connection in the present case between the series of acts before and after the action was brought; they were repeated in succession, and became a continuing cause of action. They were an assertion of the same claim - namely, a claim to continue to pour sewage into the stream - and a continuance of the same alleged right. In my opinion, there was here a continuing cause of action within the meaning of the rule. 13. They were an assertion of the same claim - namely, a claim to continue to pour sewage into the stream - and a continuance of the same alleged right. In my opinion, there was here a continuing cause of action within the meaning of the rule. 13. The distinction between a continuing offence and an offence which is not a continuing one is well brought out in the decision of the High Court of Bombay in State v. A.H. Bhiwandiwala AIR 1955 Bom. 161 : 1955 Cri.LJ 666 : 56 Bo.LR 1172. In that case, the accused-respondent had been charged with two offences namely, (a) failure to apply for registration of his factory and to give notice of occupation and, (b) running the factory without a licence issued under the Factories Act, 1948. The accused had raised a plea of limitation against the prosecution. In that context the High Court observed: In civil law, we often refer to a continuing or recurring cause of action. Similarly, even in criminal law the expression "continuing offence" is frequently used. As observed by Beaumont, C.J. in Emperor v. Chhotalal Amarchand AIR 1937 Bom. 1 (FB) : 38 Cri.LJ 156 : 38 Bom.LR 1164, the expression "continuing offence" is not a very happy expression. It assumes, says the learned Chief Justice- ...that you can have a continuing offence in the sense in which you can have a continuing tort, or a continuing breach of contract, and I doubt, myself whether the assumption is well-founded, having regard to the provisions of the Criminal Procedure Code as to the framing of charges and as to the charges which can be tried at one and the same trial. It is quite clear that you could not charge a man with committing an offence 'de die in diem' over a substantial period.... Even so, this expression has acquired a well recognized meaning in criminal law. If an act committed by an accused person continues an offence and if that act continues from day to day, then from day to day a fresh offence is committed by the accused so long as the act continues. Normally and in the ordinary course an offence is committed only once. But we may have offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences. 14. Normally and in the ordinary course an offence is committed only once. But we may have offences which can be committed from day to day and it is offences falling in this latter category that are described as continuing offences. 14. *** *** *** 15. *** *** *** 16. *** *** *** 17. The true principle appears to be that where the wrong complained of is the omission to perform a positive duty requiring a person to do a certain act the test to determine whether such a wrong is a continuing one is whether the duty in question is one which requires him to continue to do that act. Breach of a covenant to keep the premises in good repair, breach of a continuing guarantee, obstruction to a right of way, obstruction to the right of a person to the unobstructed flow of water, refusal by a man to maintain his wife and children whom he is bound to maintain under law and the carrying with the measures intended for the safety and well being of workmen may be illustrations of continuing breaches or wrongs giving rise to civil or criminal liability, as the case may be, de die in diem. 18. In Balkrishna Savalram Pujari v. Shree Dnyaneshwar Maharaj Sansthan 1959 Supp 2 SCR 476 : AIR 1959 SC 798 : 1960 SCJ 1203, Gajendragadkar, J. (as He then was) observed: It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong, even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.... 11. The aforesaid judgment has been referred to with approval in the case of Maya Rani Punj v. Commissioner of Income Tax, Delhi (1986) 1 SCC 445 . In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.... 11. The aforesaid judgment has been referred to with approval in the case of Maya Rani Punj v. Commissioner of Income Tax, Delhi (1986) 1 SCC 445 . In view of the aforesaid circumstances and the above mentioned law laid down by the Supreme Court the contention of the petitioner that the present petition filed by him suffers from any delay and laches as the cause of action is a continuing one, is factually and legally misconceived and deserves to be rejected. 12. It is next submitted by the learned Counsel for the petitioner that the respondents be directed to re-examine the case of the petitioner and pass fresh orders in that respect. 13. In my considered opinion, in view of the long lapse of time and delay on the part of the petitioner in filing this petition and in view of the fact that the respondent/authorities have already rejected the petitioner's representation by order dated 6-1-1997, which order has attained finality in the absence of challenge to the same by the petitioner even in the present petition, such a direction cannot be issued in view of the law laid down by the Supreme Court in the case of Union of India and Ors. v. M.K. Sarkar (2010) 2 SCC 59. In the aforesaid judgment, the Supreme Court has held as under: 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 and avoidable complications. The ill-effects of such directions have been considered by this Court in C. Jacob v. Director of Geology and Mining (2008) 10 SCC 115 : (2008) 2 SCC (L & S) 961 (SCC pp. 122-123, 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'. 122-123, 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 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 get obliterated 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 with 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 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. 14. In view of the aforesaid law laid down by the Supreme Court which squarely applies to the present case the prayer of the petitioner for reconsideration of his claim deserves to be and is hereby rejected. From a perusal of petition, it is also clear that no explanation and/or reason has been furnished by the petitioner for filing the petition after a long delay of 13 years. It is also evident that the petitioner has not challenged the order dated 6-1-1997 rejecting the claim of counting the service rendered by him in the State of Rewa which order has become final. 15. In such circumstances, the petition filed by the petitioner suffers from delay and laches and is accordingly dismissed.