Himachal Pradesh High Court
Puran Mal And Others vs M/S Birla Textiles Mills on 22 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 7777 of 2012 a/w CWP No. 9966 of 2012 .
Judgment reserved on: 16.7.2019 Date of decision: 22.7.2019.
1. CWP No. 7777 of 2012 Puran Mal and others ...Petitioners.
Versus M/s Birla Textiles Mills ...Respondent.
2. CWP No. 9966 of 2012 Shyam Lal and others ...Petitioners Versus M/s Birla Textiles Mills r ...Respondent.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 Yes For the Petitioners : Mr. Sanjeev Bhushan, Senior Advocate, with Ms. Abhilasha Kaundal, Advocate, in both the petitions.
For the Respondents : Mr. R.L. Sood, Senior Advocate, with Ms. Sanjivini Sood and Mr. Sanjay Kumar, Advocates, in both the petitions.
Tarlok Singh Chauhan, Judge Both these petitions have been filed for common relief which reads thus:
"(i) That a writ in the nature of certiorari may be issued and the award dated 17.1.2006, Annexure P1 passed by 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 2 learned Presiding Judge, Industrial TribunalcumLabour Court, Shimla under reference No. 129/2000 be quashed and setaside.
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(ii) That a writ in the nature of mandamus may be issued directing the respondent to extend the same benefits to the present petitioners also as have been extended to other similarly situated workmen as per the judgment of this Hon'ble Court in LPA No. 69/2008."
2. The issue of progressive deconcentration of population and economic activities within the National Capital Region (Delhi), in terms of Master Plan for Delhi 1962 and National Capital Region Plan2001, came up for consideration before the Apex Court in W.P. (C) No. 4677 of 1985, titled as M.C. Mehta vs. Union of India and others. Vide judgment dated 8.7.1996, [(1996) 4 SCC 750], Apex Court inter alia held that certain industrial units, including that of the appellant set up under the name of M/s Birla Textile Mills, being a hazardous/noxious/heavy/large industry falling within the category of H(a) and H(b) of the Delhi Master Plan, was to be closed w.e.f. 30.11.1996 and relocated outside Delhi. With regard to the workmen employed by the Industry, following directions pertaining to their rights/benefits were issued: "28.......
(9) The workmen employed in the above mentioned 168 industries shall be entitled to the rights and benefits as indicated hereunder : ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 3
(a) The workmen shall have continuity of employment at the new town and place where the industry is shifted. The terms and conditions of their employment shall not be altered to their detriment;
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(b) The period between the closure of the industry in Delhi and its restart at the place of relocation shall be treated as active employment and the workmen shall be paid their full wages with continuity of service;
(c) All those workmen who agree to shift with the industry shall be given one years wages as "shifting bonus" to help them settle at the new location".
(d) The workmen employed in the industries which fail to relocate and the workmen who are not willing to shift along with the relocated industries, shall be deemed to have been retrenched with effect from November 30, 1996 provided they have been in continuous service (as defined in Section 25B of the Industrial Disputes Act, 1947) for not less than one year in the industries concerned before the said date. They shall be paid compensation in terms of Section 25F (b) of the Industrial Disputes Act, 1947. These workmen shall also be paid, in addition, one year wages as additional compensation;
(e) The "shifting bonus" and the compensation payable to the workmen in terms of this judgment shall be paid by the management before December 31, 1996.
(f) The gratuity amount payable to any workmen shall be paid in addition."
3. These directions were partly modified by the Apex Court in terms of its order dated 4.12.1996, [M.C.Mehta vs. Union of India and others, (1997) 11 SCC 327], to the extent that words "one year wages" in direction 9 (d) were substituted with "six years wages".
4. The appellantCompany (referred to as the 'management ') decided to relocate its mill/unit at Baddi in the State of Himachal ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 4 Pradesh. With the relocation of the Unit, option to join at Baddi was left to the workmen already employed in Delhi. Certain issues with regard to interpretation of the aforesaid directions crept in .
between the management and the workmen, which led to filing of various applications, including contempt petitions before the Apex Court and in terms of order dated 18.12.1998, titled as M.C. Mehta vs. Union of India and others, [(1999) 2 SCC 91], they were disposed of with a direction to the management to accept joining of the workmen on 14.1.1999. However, these were applicable but to such workmen who had exercised their option to join at Baddi.
The Court reiterated that period between the closure of Mill at Delhi and restart of the same at the place of its relocation shall be treated under active employment and workmen shall be paid full wages with continuity in service. The workmen were to be treated as if they were in service in Delhi till the time industry was restarted at the relocated place.
5. The issue did not rest there. Workmen through their Unions including, All India Textile Mazdoor Janta Union and the Kapra Mazdoor Lal Jhanda Union, filed another set of applications, including contempt petitions, before the Apex Court on the ground that there was willful disobedience of directions issued by the Apex Court in terms of order dated 18.12.1998 ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 5 [(1999) 2 SCC 91]. All these applications/petitions came up for consideration before the Apex Court and vide its order dated 24.3.1999, contempt petition were closed with a direction to the .
management to pay compensation of Rs.30,000/ each to the workmen. It stood clarified that wages payable to the workmen from the date of closure upto 9.4.1999, together with shifting bonus of one year wages plus Rs.500/ towards expense for journey to Baddi, shall be paid to each of the employees who had exercised their option of joining at Baddi.
6. Workmen still felt that the management had failed to comply with the orders/ judgments passed by the Apex Court and as such they filed another set of contempt petition before the Apex Court, which after hearing were dismissed vide order dated 25.11.1999 (in terms of the following order: "Having gone through the assertions made in the application, we are not persuaded to accept the submission of the learned counsel that there has been any deliberate violation of the court's order dated 8.7.1996 as clarified by order dated 4.12.1996. In that view of the matter, the question of initiating contempt proceedings does not arise. This I.A. is accordingly dismissed."
7. Despite the same, thereafter workmen through Kapra Mazdoor Lal Jhanda Union, Baddi (referred to as the "Union") got served notice dated 31.1.2000 to the management ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 6 raising 15 demands. A specific notice for strike dated 10.6.2000 under Sections 22 and 23 of the Industrial Disputes Act, 1947 was also got issued to the Management by workmen through the .
same Union.
8. The appropriate Government decided to refer the matter for adjudication of the disputes by making the following reference under Section 10 of the Industrial Disputes Act: "Whether the demand raised by Kapra Mazdoor Lal Jhanda Union (CITU) (Unregistered) Birla Mills, Sai Road Baddi, District Solan, H.P. with the management of M/s Birla Textile Mills, Sai Road Baddi District Solan, H.P. vide their demand charter dated 10.6.2000 read with the demand charter dated 31.1.2000 (copies enclosed) are genuine and justified. If yes, which of their demands should be accepted and from which date?"
9. The aforesaid reference was answered against the workmen by the Labour Court, Shimla, in terms of award dated 17.1.2006, passed in Ref. No. 129 of 2000, titled as Kapra Mazdoor Lal Jhanda Union vs. M/s Birla Textile Mills. In these proceedings, workmen restricted their claim only with regard to demands No.1, 2 and 10 and the remaining demands were not pressed during adjudication of these proceedings. These demands read as under: "1. That the decision of the Hon'ble Supreme Court contains clear directions that on transfer of the industry from ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 7 Delhi to Baddi, H.P., there shall be no change in the terms and conditions of services of workers. It is regretted that you have violated the decision of Apex Court and you are .
deducting the changeable dearness allowance from the salary of all the workers arbitrarily for the past one year which is about 11001200 Rupees per month per worker.
Hence we demand that dearness allowance may be made applicable and the amount deducted so far may be paid without delay.
2. That illegal and unjustified deduction of 88 days wages from the salary of August and September, of the workers may be paid.
10. That the leave of the workers, which is curtailed may be restored"
10. Significantly, the Union challenged the award passed by the Labour Court directly before the Apex Court by way of Special Leave to Appeal (C) No. 16459 of 2006. However, even this petition was dismissed as withdrawn as is evident from the order dated 19.10.2006, which reads as under:
"Learned counsel for the petitioner wants to withdraw the petition. The special leave petition is, accordingly, dismissed as withdrawn."
11. Out of 250 members of the Union, 70 members filed as many as 14 petitions before this Court in their individual capacity and the same was allowed by the learned Single Judge of this Court on 7.5.2008. But the said decision was challenged in a ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 8 bunch of LPAs filed on behalf of the respondent, the lead being, LPA No. 69 of 2008 titled M/s Birla Textiles Mills vs. Sh. Kalp Nath and others.
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12. During the course of LPAs, the learned Division Bench of this Court did not find it necessary to go into the contentions raised in these appeals and passed the following orders:
"24. Considering the various interim orders which were passed in these appeals, the stand now taken by the management, specifically restricting it to the original writ petitioners before us, the affidavits placed on record and the nature of the orders, which we now propose to finally pass, leaving the questions of law open, we do not find it necessary to go into the contentions raised in these appeals.
25. On 15.10.2011, this Court passed the following order: "The undisputed factual position shows that the appellant industrial unit in Delhi was closed in November, 1996 and it was relocated and reopened in Baddi in Himachal Pradesh in March, 1999. We are informed that for the interregnum workers were paid their eligible wages as payable in Delhi, though it is disputed. Going through the evidence tendered before the Labour Court there appears to be a factual dispute as to whether the variable Dearness Allowance as prevalent in Delhi up to November, 1999 was also paid or not. The Dearness Allowance is varied according to the price index and it takes normally some time to issue appropriate notification showing the percentage of increase. To this extent we feel that there has to be some clarification from the ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 9 management. There will be a direction to the appellant(s) to file a statement showing the increase in the variable Dearness Allowance in Delhi, if any, .
between 1996 to March, 1999, be it notified before 1999 or thereafter. It shall also be clarified in the statement as to whether the same was paid to the workers who were relocated in March, 1999 in H.P., up to March, 1999. Appellant(s) are also free to state any other clarification in this regard which is available to them in the statement. Post on
13. to 29.10.2011, at 9.30 a.m."
Now, the petitioners, who had earlier not assailed the award dated 17.01.2006 passed by the learned Labour Court, have filed the instant petition for setting aside the award and granting the same benefits as were granted by this Court to the workers as per the judgment passed in LPA No. 69 of 2008.
14. According to the respondent, the judgment passed by this Court is in personam and, therefore, the benefit thereunder cannot be extended to the petitioners, who were fencesitters.
15. I have heard learned counsel for the parties and have gone through the records of the case carefully.
16. The normal rule is that when a particular set of employees is given relief by Court, all other identically situated persons should be treated alike by extending same benefit since not doing so would amount to discrimination and be violative of ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 10 Article 14 of the Constitution of India. However, this normal rule is subject to wellrecognised exceptions in form of laches, delays and acquiescence which would be valid grounds to dismiss their .
claim. But the said exception would not apply to those cases where judgment pronounced by Court was judgment in rem with intention to benefit all similarly situated persons irrespective of whether they had approached Court or not. In such situation, obligation is cast upon authorities themselves to extend benefit to all similarly situated persons. But where judgment was in personam, those who intend to get benefit of said judgment must satisfy court that their petition does not suffer from either laches, delays or acquiescence.
17. The law in the subject has been lucidly expounded by the Hon'ble Supreme Court in State of Uttar Pradesh and others vs. Arvind Kumar Srivastava and others (2015) 1 SCC 347, wherein it was observed as under:
"13. In State of Karnataka vs. C. Lalitha (2006) 2 SCC 747, which is the next case relied upon by the learned counsel for the respondents, our attention was drawn to the following passage from the said judgment: (SCC p. 756, para 29) "29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 11 because one person has approached the court that would not mean that persons similarly situated should be treated differently. It is furthermore well .
settled that the question of seniority should be governed by the rules. It may be true that this Court took notice of the subsequent events, namely, that in the meantime she had also been promoted as Assistant Commissioner which was a Category I post but the direction to create a supernumerary post to adjust her must be held to have been issued r to only with a view to accommodate her therein as otherwise she might have been reverted and not for the purpose of conferring a benefit to which she was not otherwise entitled to."
13.1. We have to understand the context in which the aforesaid observations came to be made. That was a case where the order passed in the first round of litigation between the same parties came up for construction and its effect. The background in which the issue arose was that an amendment made in the reservation policy of the State was challenged in N.T. Devin Katti v. Karnataka Public Service Commission (1990) 3 SCC 157. In that judgment, this Court had declared that the revised reservation policy was not applicable to the selections initiated prior thereto. It resulted in the consequential direction to the State Government to appoint N.T. Devin Katti (appellant in that case) on the post of Tehsildar with retrospective effect. At the same time, it was also made clear that for the purposes of seniority such persons would have to be placed below the last candidates appointed in the year 1976 and they would ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 12 also be not entitled to any back wages. Insofar as, respondent C. Lalitha is concerned, on the basis of revised reservation policy, she was appointed as Tehsildar.
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13.2. After the rendition of the aforesaid judgment in N.T. Devin Katti's case (supra), she approached the Karnataka Administrative Tribunal by filing an OA claiming appointment as Assistant Commissioner. The Tribunal dismissed the OA. However, her appeal against the order of the Tribunal was allowed by this Court vide orders dated March 15, 1994, taking note of the fact that she was selected and shown in the first list, which was upheld by the Court in the case of N.T. Devin Katti (supra). Since she had already been promoted to Class I Post of Assistant Commissioner by then, for her appointment the Court directed that if no vacancies are available, the State Government will create a supernumerary post and for the purpose of seniority, she had to be placed below the last candidate appointed in the year 1976 and was not entitled to any back wages. It is clear from these directions that her appeal was allowed giving same directions as given in N.T. Devin Katti (supra). It so happened that though her name was in the first list, which was upheld in N.T. Devin Katti's case (supra), her rank was little below and there were few persons above her. As per her rank in the general merit Category I posts, after taking the opinion of the Public Service Commission, it was decided by the Government to consider her for the post of Assistant Controller of Accounts , a Category I Post, as the marks secured by her were below the marks secured by the candidates selected as Assistant Controller of Accounts. She refused to accept the said post and approached the Tribunal again. The ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 13 Tribunal dismissed the OA filed by her. Against that order of the Tribunal she approached the Karnataka High Court, which allowed the writ petition directing the State to .
implement order dated March 15, 1994 which was passed by this Court in the earlier round.
13.3. Against this order of the High Court, the State preferred appeal and it is in this backdrop that effect of the earlier order dated March 15, 1994 came up for consideration. It was argued by the State that effect of the order dated March 15, 1994 was to relegate the parties to the same position as if the reservation policy was not amended and if so construed, the respondent having been placed in the supplementary list could not have been laid any claim for any post in the administrative service. It is this contention which was accepted by this Court noticing another crucial fact that there were many persons who were higher in the merit than the respondent and the effect of the earlier order passed by this Court could not have been to ignore the said merit list and give something to the respondent which was not admissible in law. The Court held that merit should be the sole criteria for selection of candidates and the earlier judgment was to be construed as if it had been rendered in accordance with law. While holding so, the Court also sited many case law to demonstrate that the judgments are not to be read as a statute. It is in the aforesaid context that observations are made in para 29, on which heavy reliance has been placed by the respondent.
13.4. When we understand the impact of the observations contextually, we find that again the issue at hand is totally different.
::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 1414. Next case in the line, on which the respondents rely, is Maharaj Krishna Bhatt & Anr. v. State of Jammu & Kashmir (2008) 9 SCC 24. In that case, the appellants and some .
other Constables approached the Chief Minister of the respondent State for relaxation of rules relating to 50% direct recruitment quota for appointment as SubInspectors of Police (PSI). The Chief Minister's office in turn called for the Director General's recommendations, who recommended the name of one person only, namely, Hamidullah Dar. Hamidullah Dar was accordingly appointed as PSI with effect from April 01, 1987. Thereupon, other persons also approached the Court.
14.1. In the case of one Abdul Rashid Rather, the Single Judge of the High Court allowed his writ petition. The respondent State filed LPA which was dismissed, and subsequently, special leave petition was also dismissed by this Court. Consequently, Abdul Rashid Rather was also appointed as PSI. It would be pertinent to mention that the appellants in the said appeal, along with two others, had also filed the writ petition in the year 1987, which was disposed of on September 13, 1991 and a direction was issued to the Director General of Police to consider their cases for appointment to the post of PSI by relaxing of rules. Pursuant to the said directions, the Director General of Police considered and rejected the cases of the appellants for appointment without giving any reasons. These appellants initially filed the contempt petition, but thereafter preferred fresh writ petition being Writ Petition No. 3735 of 1997.
14.2. This writ petition of the appellants was pending when the orders of appointment came to be passed in the writ ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 15 petition filed by Abdul Rashid Rather and on the basis of that judgment, Abdul Rashid Rather had been given the appointment with effect from April 01, 1987. In this .
scenario, when writ petition of the appellants came up for hearing before the Single Judge of the High Court, it was allowed vide judgment dated April 30, 2001 following the judgment in the case of Abdul Rashid Rather, which had been affirmed by this Court as well. However, the State filed appeal thereagainst and this appeal was allowed by the Division Bench of the High Court. Even the review petition filed by the appellants was dismissed by the Division Bench. Special Leave Petition was filed challenging the judgment of the Division Bench, which was the subject matter in the case of Maharaj Krishan Bhatt (supra). Leave was granted and ultimately appeal was allowed holding that the appellants were also entitled to the same treatment. While doing so, the Court made the following observations: (SCC p. 30, para 23) "23. In fairness and in view of the fact that the decision in Abdul Rashid rather had attained finality, the State authorities ought to have gracefully accepted the decision by granting similar benefits to the present writ petitioners. It, however, challenged the order passed by the Single Judge. The Division Bench of the High Court ought to have dismissed the letters patent appeal by affirming the order of the Single Judge. The letters patent appeal, however, was allowed by the Division Bench and the judgment and order of the learned Single Judge was set aside. In our considered ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 16 view, the order passed by the learned Single Judge was legal, proper and in furtherance of justice, equity and fairness in action. The said order, .
therefore, deserves to be restored."
14.3. No doubt, the Court extended the benefit of the decision in Abdul Rashid Rather's case to the appellants.
However, what needs to be kept in mind is that these appellants had not taken out legal proceedings after the judgment in Abdul Rashid Rather's case. They had approached the Court well in time when Abdul Rashid Rather had also filed the petition.
15. The submission of learned counsel for the appellants, on the other hand, is that the respondents did not approach the Court earlier and acquiesced into the termination orders. Approaching the Court at such a belated stage, after the judgment in some other case, was clearly impermissible and such a petition should have been dismissed on the ground of laches and delays as well as acquiescence. It was submitted that in such circumstances this Court has taken consistent view to the effect that benefit of judgment in the other case should not be extended even if the persons in the two sets of cases were similarly situated. Mr. P.N. Misra, learned senior counsel appearing for the appellants, pointed out in this behalf that though the orders were passed by the appellants on June 22, 1987, the respondents have filed their claim petition before the Tribunal only in the year 1996, i.e. after a period of 9 years from the date of passing of the orders.
::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 1716. Mr. P.N. Misra drew our attention to the following observations in M/s. Rup Diamonds & Ors. v. Union of India & Ors. (1989) 2 SCC 356 (SCC p. 360, para 8):
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"8. Apart altogether from the merits of the grounds for rejection - on which it cannot be aid that the mere rejection of the special leave petitions in the cases of M/s Ripal Kumar & Co., and M/s. H. Patel & Co., could, by itself, be construed as the imprematur of this Court on the correctness of the decisions sought to be appealed against - there is one more ground which basically sets the present case apart. Petitioner are re agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring this writ petition which is brought after almost an year after the first rejection. From the orders in M/s Ripal Kumar & Co.'s case and M/s H. Patel & Co.'s case it is seen that in the former case the application for revalidation and endorsement was made on March 12, 1984 within four months of the date of the redemption certificate dated November 16, 1983 and in the latter case the application for ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 18 revalidation was filed on June 20, 1984 in about three months from the Redemption Certificate dated March 9, 1984."
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That case pertains to import facility for import of OGL items available under para 185(3) and (4) of Import - Export Policy, 198283 to export houses after discharging export obligation on advance/imprest licence. The petitioners had applied for, and were granted, this imprest licence for the import of uncut and unset diamonds with the obligation to fulfil certain export commitment for the export, out of India, of cut and polished diamonds of the FOB value, stipulated in each of the imprest licences. As per the petitioners, they have discharged their export obligation and, therefore, in terms of para 185(4) of the Import - Export policy, they were entitled to the facility for the import of OGL items. However, they sought revalidation four years after discharge of export obligation and five years after the expiry of the licence. This claim was rejected by the authorities on the ground of delay.
Writ petition was filed in this Court one year after such rejection. In these circumstances, the Court dismissed the writ petition for approaching the Court belatedly and refused to follow the orders passed in another petitions by this Court, which was sought to be extended on the ground that the petitions were exactly similar to those petitions which were preferred in another case. No doubt, writ petition was dismissed on the ground of unexplained inordinate delay, but it would be necessary to observe that it was not a service matter. However, the principle of delay ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 19 and laches would have some relevance for our purposes as well.
17. State of Karnataka & Ors. v. S.M. Kotrayya & Ors.
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(1996) 6 SCC 267 is, on the other hand, a service matter. Here, the respondents, while working as teachers in the Department of Education, availed of Leave Travel Concession (LTC) during the year 198182. But later it was found that they had never utilised the benefit of LTC but had drawn the amount and used it. Consequently, recovery was made in the year 198486. Some persons in similar cases challenged the recovery before the Administrative Tribunal which allowed their Applications in August 1989. On coming to know of the said decision, the respondents filed Applications in August 1989 before the Tribunal with an application to condone the delay. The Tribunal condoned the delay and allowed the OAs. Appeal against the said order was allowed by this Court holding that there was unexplained delay in approaching the Tribunal. The Court relied upon the Constitution Bench case in S.S. Rathore v. State of M.P. (1989) 4 SCC 582, which deals with the manner in which limitation is to be counted while approaching the Administrate Tribunal under the Administrative Tribunal Act, 1985. Here again, on the ground of delay, the Court refused to extend the benefit of judgment passed in respect of other similarly situated employees.
18. Both these judgments, along with some other judgments, were taken note of in U.P. Jal Nigam & Anr. v. Jaswant Singh & Anr. (2006) 11 SCC 464. That was a case where the issue pertained to entitlement of the ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 20 employees of U.P. Jal Nigam to continue in service up to the age of 60 years. In Harwindra Kumar v. Chief Engineer, Karmik (2005) 13 SCC 300 this Court had .
earlier held that these employees were in fact entitled to continue in service up to the age of 60 years. After the aforesaid decision, a spat of writ petitions came to be filed in the High Court by those who had retired long back. The question that arose for consideration was as to whether the employees who did not wake up to challenge their retirement orders, and accepted the same, and had collected their post retirement benefits as well, could be given relief in the light of the decision delivered in Harwindra Kumar (supra). The Court refused to extend the benefit applying the principle of delay and laches. It was held that an important factor in exercise of discretionary relief under Article 226 of the Constitution of India is laches and delay. When a person who is not vigilant of his rights and acquiesces into the situation, his writ petition cannot be heard after a couple of years on the ground that the same relief should be granted to him as was granted to the persons similarly situated who were vigilant about their rights and challenged their retirement. In para 7, the Court quoted from M/s. Rup Diamonds & Ors. (supra). In para 8, S.M. Kotrayya (supra) was taken note of.
19. Some other judgments on the same principle of laches and delays are taken note of in paras 9 to 11 which are as follows: (Jaswant Singh case, SCC pp. 46970) "9. Similarly in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538, this Court reaffirmed the rule if a person chose to sit over the matter and then ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 21 woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows: (SCC p. 542) .
"The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage."
10. In Union of India v. C.K. Dharagupta, (1997) 3 SCC 395, it was observed as follows: (SCC p.398, para 9) "9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi v. Union of India, OA No. 497 of 1986 decided on 1731987, gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case. In view of our finding that the benefit of the judgment of the Tribunal dated 173 1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief."
11. In Govt. of W.B. v. Tarun K. Roy, (2004) 1 SCC 347, their Lordships considered delay as serious ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 22 factor and have not granted relief. Therein it was observed as follows: (SCC pp. 35960, para 34) "34. The respondents furthermore are not .
even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138.
The plea of delay, which Mr. Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law."
::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 2320. The Court also quoted following passage from the Halsbury's Laws of England (para 911, p.395): (Jaswant Singh case, SCC pp. 47071, para 12) .
"12..... 'In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii)any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean r standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it;
or whereby his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
21. Holding that the respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons: (Jaswant Singh case, SCC p.471, para 13) ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 24 "13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in .
accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?"
::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 2518. It is on the basis of the aforesaid judgments that the .
Hon'ble Supreme Court thereafter summed up the legal principles as under:
"22.1. Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
22.2. However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fencesitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 26
22.3. However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated .
persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence.
19. Similar reiteration of law can be found in number of judgments of this Court and some of which are as under:
1. Raj Kumar vs. BSNL, 2017 (2) ILR (HP) 101.
2. H.P.University vs. Mohinder Pal and another, LPA No.87/2011, decided on 8.8.2016.
3. Karam Singh Pathania vs. State of H.P. and others, 2015 (6) ILR (HP) 350.
4. Sukh Dev Kumar and others vs. State of H.P. and others, 2016 Labour Industrial Cases 3011.
5. Amit Attri and others vs. Anil Verma and others, 2015 (2) SLC 846.::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 27
20. Admittedly, the instant petition has been filed on September 12, 2012 assailing the award passed by Labour Court .
dated 17.01.2006 and seeking extension of similar benefits as flow out from the judgment passed in LPA No. 69 of 2008, decided on 27.4.2012 and having been filed belately, would normally be covered under principle 22.2 (supra) and the petition filed would be liable to be dismissed and the only exception where this petition can be saved from the rigors of delays, laches and acquiescence etc. would be in the event the case is covered under principle 22.3 (supra) casting a burden upon the petitioners to prove that the judgment pronounced by this Court in LPA No. 69 of 2008 was a judgment in rem with the intention to give benefit to all similarly situated persons, whether they approached the court or not. If however it is proved that the judgment was in personam then the benefit of the said judgment shall accrue only to the parties before the court and obviously then the benefit cannot be extended to the petitioners.
21. Unfortunately, the petitioners, save and except, claiming that the judgment in LPA No.69 of 2008 should have been applied qua all the similarly situated persons by the respondent, have not been able to show how the judgment passed ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP 28 by this Court in LPA is a judgment in rem. On the other hand, it is the specific case of the respondent that the judgment in LPA was a judgment in rem and, therefore, the petitioners being fencesitters .
cannot claim any benefit on the basis of said judgment.
22. The petitioners have not even cared to assail this position by filing rejoinder. Even otherwise the bare perusal of the judgment passed by this Court in LPA No.69 of 2008 (the relevant portion whereof quoted above) only goes to show that the judgment was in personam and not in rem so as to entitle the petitioners to claim any benefit on the basis of the said judgment.
23. Having said so, I find no merit in these writ petitions and the same are accordingly dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
22nd July, 2019. (Tarlok Singh Chauhan), (GR) Judge ::: Downloaded on - 29/09/2019 01:02:31 :::HCHP