Heard both sides.
2.This writ petition arose out of O.A.No.3724 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.36342 of 2006.
3.The petitioner sought for the issuance of a writ of certiorari to call for the records relating to proceedings of the second respondent made in Na.Ka.No.2271/H3/87, dated 5.2.1988 as confirmed by the first respondent made in Na.Ka.No.799/Aa Su Ni7/A 1/96, dated 2.2.98 and to quash the same and consequent extend all benefits both service and monetary.
4.The petitioner is an Ex-Watchman of Elachipalayam. He filed OA No.3724 of 1998, seeking to set aside the order, dated 5.2.88 as confirmed by the first respondent, dated 2.2.98 and for consequential direction with all monetary benefits. The petitioner even at the time of filing of the OA was 55 years old and he would have reached the age of superannuation during the year 2001.
5.By an order, dated 5.2.88, he was removed from service with effect from 3.3.87. It was on the ground that he did not report for duty even after the medical board found him fit. The petitioner, thereafter, did not challenge the said order of removal. But, on the contrary, he sent a revision petition on 16.8.96, i.e. nearly after a period of eight years. He moved the tribunal with OA No.2939 of 1997, seeking for a direction. The tribunal, by an order, dated 28.4.97, directed the respondents to pass an appropriate order. It was thereafter, the respondents held that since under rules 19 and 27 of the Tamil Nadu Civil Services (Discipline and appeal) Rules, no appeal has been filed within the time and the revision petition is belated and therefore, his review petition, dated 16.8.96 cannot be accepted.
6.On notice from the Tribunal, the respondents have filed a reply affidavit, dated 17.12.1998, justifying his termination. In paragraphs 6 and 7 of the reply affidavit, it was averred as follows:
"6....it is submitted that while the applicant was working at the Primary Health Centre, Ambalamoola, he applied for 13 days casual leave from 3.3.1987 to 15.3.87 and then applied medical leave from 16.3.1987 to 15.5.1987.
7.It is submitted that the applicant was directed by the then District Health Officer, Udhagamandalam to appear before the Medical Board and the applicant appeared before the Medical Board on 11.6.1987. The Medical Board in letter L.Dis.No.19549/S2/87, dt.16.6.1987 has opined that the applicant was fit to join duty on 12.6.1987 and informed that the leave on Medical certificate for the period from 16.3.1987 to 15.5.1987 is not accepted. The applicant was directed by the then District Health Officer, Udhagamandalam to join duty within 7 days in r.No.2271/H3/87, dated 28.8.1987. However the applicant did not join duty. The then District Health Officer, Udhagamandalam in R.No.2271/H3/87, dt.6.10.1987, has issued a charge memo under Rule 17(b) of the Tamil Nadu Civil Supplies (Discipline and Appeal) rules framing the following charges a)that he had failed to join duty even after the recommendation of the Medical Board 2)absented from duty on his own accord and 3)disobeying the orders of the superiors. The applicant did not submit his explanation to the charge memo. Therefore, the then District Health Officer, Udhagamandalam in R.No.2271/H3/87 dt.12.11.1987 had issued an ultimatum to the applicant to submit his reply to the charge memo and also directed him to rejoin duty immediately, with a warning that failing to rejoin duty will lead to removal from service. But the applicant neither rejoined duty nor sent any reply to the charge memo. Since the applicant had not availed the opportunities given to him the District Health Officer, Udhagamandalam had to take a decision in the matter and accordingly in R.No.2271/H3/87 dt.5.2.1988, had issued orders removing the applicant from service with effect from 3.3.1987...."
7.Since the petitioner did not file necessary papers, this court by an order, dated 31.08.2009 directed to produce the original file, which was also circulated by the learned Government Advocate.
8.A perusal of the said file clearly shows that the petitioner, even after being found fit for duty by the medical board, did not join and in his own representation, he has also stated that he does not want to be transferred out of the present place. Further, even after the termination in the year 1988, for eight years, the petitioner never moved any authority including the Tribunal.
9.By sending a belated representation, the petitioner cannot revive a stale or death cause of action in the light of the judgment of the Supreme Court in C.JACOB VS. DIRECTOR OF GEOLOGY & MINING & ANR. reported in 2008 AIR SCW 7233. In paragraphs 6 to 8 of the said judgment, the Supreme Court has observed as follows:
"6.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 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. 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 realize 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.
7.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.
8.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 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 'acknowledgment of a jural relationship' to give rise to a fresh cause of action."
10.In the light of the above, this writ petition stands dismissed. No costs.
vvk To
1.The Director of Medical and Rural Health Services, DMS Compound, Chennai-6.
2.The District Health Officer, The Nilgiris @ Udhagamandalam