Himachal Pradesh High Court
Inder Singh vs Hp State Electricity Board on 13 August, 2015
Bench: Mansoor Ahmad Mir, Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 112 of 2011 Judgment reserved on 6th August, 2015. Date of decision: 13th August, 2015.
.
Inder Singh .....Appellant
Versus
HP State Electricity Board ...Respondent.
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge.
of Whether approved for reporting ?1 Yes.
For the appellant: Mr. N.S. Chandel, Advocate. For the respondents:rt Mr. Satyen Vaidya, Sr. Advocate with Mr. Vivek Sharma, Advocate, for respondent No.1.
Respondent No. 2 already
deleted.
_____________________________________________________ Mansoor Ahmad Mir, Chief Justice.
This Letters Patent Appeal is directed against the judgment dated 22.11.2010, made by the learned Single Judge of this Court in CWP(T) No. 5668 2008 (OA NO. 87/1999) titled Sh. Inder Singh Guleria vs. H.P.S.E. B. & Anr., whereby the writ petition came to be dismissed for short "the impugned judgment", on the grounds taken in the memo of appeal.
1Whether the reporters of Local Papers may be allowed to see the judgment ?.
::: Downloaded on - 15/04/2017 18:45:11 :::HCHP -2-2. It appears that the appellant was an employee of the respondent-Board, reached the age of superannuation on 31.10.1996. He invoked the .
jurisdiction of the H.P. State Administrative Tribunal in the year 1999, by the medium of Original Application No. 87 of 1999 with the following prayers:
"(A) That directions may kindly be issued to the of respondent No. 1 to consider the case of the applicant for promotions as S.A.S. Superintendent w.e.f. 12.11.1993, As Accounts Officer w.e.f. 4th of rt January, 1989 and Senior Accounts Officer w.e.f.
7th of January, 1994 and then as Deputy Chief Accounts Officer from August, 1996;
(B) Further directions may also kindly be issued that after the promotion of the applicant the respondent-Board be directed to fix the seniority of the applicant in the cadre of Superintendent, Accounts Officer, Senior Accounts officer and then in the cadre of Deputy Chief Accounts officer and to pay him all the arrears of pay with interest throughout.
(C) Similarly respondent No. 1 may also kindly be directed to release the selection grade in favour of the applicant after he has rendered 7 years of service i.e. from January, 1980 with interest throughout."
3. The respondents resisted the Original Application on the grounds taken in the reply.
::: Downloaded on - 15/04/2017 18:45:11 :::HCHP -3-4. The said Original Application, on the abolition of the H.P. State Administrative Tribunal, was transferred to this Court and came to be registered as .
CWP(T) No. 5668 of 2008.
5. The learned Single Judge, after considering the entire matter, dismissed the writ petition on various grounds, including on account of delay, laches, waiver of and acquiescence.
6. Precisely, the case of the petitioner is that rt he was entitled to selection grade in the year 1980 when similarly situated persons were granted selection grade by granting some relaxation but the petitioner has been discriminated.
7. The following questions are to be determined:-
(i) Whether a person who has chosen not to come out of deep slumber for 19 years is entitled to invoke the writ jurisdiction for equitable relief?
(ii) Whether writ petitioner can seek relief which was not granted to him in the year 1980 and remained contented with the said decision till the age ::: Downloaded on - 15/04/2017 18:45:11 :::HCHP -4- of retirement in the year 1996 and even thereafter for three years?
8. The answer is in negative for the following .
reasons.
9. The delay takes away the settings of law. A person who does not seek relief within time, his petition has to be dismissed only on the grounds of delay and of laches otherwise it would amount to gross misuse of jurisdiction and disturb the settled position.
10. rt The Writ Court has dismissed the writ petition on the ground of delay which has crept-in right from 1980 to 1999. The petitioner has not made any whisper about the cause of delay, not to speak of explaining the delay which has crept in for the last 19 years.
11. The apex Court in series of judgments and this Court in LPA No. 150 of 2014 titled Mr. Inderjit Kumar Dhir versus State of H.P. and others, decided on 17th September, 2014, made the detailed discussions on this aspect. It is apt to reproduce paras 5 to 10 of the said judgment herein:
::: Downloaded on - 15/04/2017 18:45:11 :::HCHP -5-"5.The Apex Court in a case titled as R & M Trust versus Koramangala Residents Vigilance Group and others, reported in (2005) 3 Supreme Court .
Cases 91, held that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution; delay defeats equity and delay cannot be brushed aside without any plausible explanation. It is apt to reproduce para 34 of of the judgment herein:
"34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under rt Article 226 of the Constitution. We cannot disturb the third-party interest created on account of delay. Even otherwise also why should the Court come to the rescue of a person who is not vigilant of his rights?"
6.The Apex Court in cases titled as S.D.O. Grid Corporation of Orissa Ltd. and others versus Timudu Oram, reported in 2005 AIR SCW 3715, and Srinivasa Bhat (Dead) by L.Rs. & Ors. versus A. Sarvothama Kini (Dead) by L.Rs. & Ors., reported in AIR 2010 Supreme Court 2106, has also discussed the same principle. It would be profitable to reproduce para 9 of the judgment in Timudu Oram's case (supra) herein:
"9. In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that the GRIDCO was in any way negligent in the performance of its duty. The present case is squarely covered by the decision of ::: Downloaded on - 15/04/2017 18:45:11 :::HCHP -6- this Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others (supra), 1999 AIR SCW 3383 : AIR 1999 SC 3412. The High Court has also erred in awarding compensation in Civil Appeal No. .............. of 2005 (arising out of SLP (C) No. 9788 of 1998). The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit.
.
The writ petition was filed after a lapse of 10 years.
No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its jurisdiction under Article 226 cannot be justified."
7.It would also be apt to reproduce para 39 of the of judgment rendered by the Apex Court in Bhakra Beas Management Board versus Kirshan Kumar Vij & Anr., reported in AIR 2010 Supreme Court rt 3342, herein:
"39. Yet, another question that draws our attention is with regard to delay and laches. In fact, respondent No. 1's petition deserved to be dismissed only on that ground but surprisingly the High Court overlooked that aspect of the mater and dealt with it in a rather casual and cursory manner. The appellant had categorically raised the ground of delay of over eight years in approaching the High Court for grant of the said relief. But the High Court has simply brushed it aside and condoned such an inordinate, long and unexplained delay in a casual manner. Since, we have decided the matter on merits, thus it is not proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal."
8.The Apex Court has considered the same issue and point in a case titled as Delhi Administration and Ors. versus Kaushilya Thakur and Anr., reported in AIR 2012 Supreme Court 2515. It is apt to reproduce para 10 of the judgment herein:
::: Downloaded on - 15/04/2017 18:45:11 :::HCHP -7-"10. We have heard Shri H.P. Raval, learned Additional Solicitor General and Shri Rishikesh, learned counsel for respondent No.1 and perused the record. In our view, the impugned order as also the one passed by the learned Single Judge are liable to be set aside because, .
(i) While granting relief to the husband of respondent No. 1, the learned Single Judge overlooked the fact that the writ petition had been filed after almost 4 years of the rejection of an application for allotment of 1000 sq. yards plot made by Ranjodh Kumar Thakur. The fact that the writ petitioner made further representations could not be made a ground for ignoring the delay of more than 3 years, more so because in the subsequent of communication the concerned authorities had merely indicated that the decision contained in the first letter would stand. It is trite to say that in exercise of the power under Article 226 of the Constitution, the High Court cannot entertain belated claims unless the petitioner offers tangible explanation State of M.P. v.
rt Bhailal Bhai (1964) 6 SCR 261.
(ii) The claim of Ranjodh Kumar Thakur for allotment of land was clearly misconceived and was rightly rejected by the Joint Secretary (L&B), Delhi Administration on the ground that he was not the owner of land comprised in khasra No. 70/2. A bare reading of Sale Deed dated 12.7.1959 executed by Shri Hari Chand in favour of Ranjodh Kumar Thakur shows that the former had sold land forming part of khasra Nos. 166, 167 and 168 of village Kotla and not khasra No.70/2. This being the position, Ranjodh Kumar Thakur did not have the locus to seek allotment of land in terms of the policy framed by the Government of India. The payment of compensation to Ranjodh Kumar Thakur in terms of the award passed by the Land Acquisition Collector and the enhanced compensation determined by the Reference Court cannot lead to an inference that he was the owner of land forming part of Khasra No.70/2. In any case, before issuing a mandamus for allotment of 1000 square yards plot to the writ petitioner, the High Court should have called upon him to produce some tangible evidence to prove his ownership of land forming part of Khasra No.70/2. Unfortunately, the learned Single Judge and the Division Bench of the High Court did not pay serious attention to the stark reality that Ranjodh Kumar Thakur was not the owner of land mentioned in the application filed by him for allotment of 1000 square yards land."
::: Downloaded on - 15/04/2017 18:45:11 :::HCHP -8-9.The Apex Court in a latest case titled as Chennai Metropolitan Water Supply and Sewerage Board and others versus T.T. Murali Babu, reported in .
(2014) 4 Supreme Court Cases 108, has taken into consideration all the judgments and the development of law and held that delay cannot be brushed aside without any reason. It is apt to reproduce paras 13 to of 17 of the judgment herein:
"13. First, we shall deal with the facet of delay. In Maharashtra SRTC v. Balwant Regular Motor Service,, AIR 1969 SC 329, the Court referred to rt the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Hurd, (1874) LR 5 PC 221, which is as follows: (Balwant Regular Motor Service case, AIR 1969 SC 329, AIR pp. 335- 36, para 11) "11. .....Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect ::: Downloaded on - 15/04/2017 18:45:11 :::HCHP -9- either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.' (Lindsay Petroleum Co. case, PC pp/ 239-
40)"
14. In State of Maharashtra v. Digambar, (1995) 4 .
SCC 683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that: (SCC p. 692, para 19) "19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High of Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to rt necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct."
15. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 : AIR 1987 SC 251, the Court observed that : (SCC p. 594, para 24) " 24. .........it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic."
It has been further stated therein that: (Nandlal Jaiswal case, (1986) 4 SCC 566 : AIR 1987 SC 251, SCC p. 594, para 24) "24. ........ If there is inordinate delay on the part of the petitioner in filing a petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction."
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Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not .
be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal of obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite rt disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not ::: Downloaded on - 15/04/2017 18:45:11 :::HCHP
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deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.
10.The same principles have been laid down by this Court in LPA No. 48 of 2011 titled Shri Satija .
Rajesh N. vs. State of Himachal Pradesh and others decided on 26.8.2014."
12. This Court also in a batch of LPAs lead case of which is LPA No. 107 of 2014 titled Amit Attri of and others versus Anil Verma and others decided on 3rd December, 2014, laid down the similar principles rt of law. It is apt to reproduce paras 34 to 36 of the said judgment herein:
"34.The writ petitioners in CWPs No. 3789 and 6610 of 2014 have sought similar reliefs, which have been granted to the petitioners, in terms of the impugned judgment. They are fencer. They were watching from a distance that what will happen to the writ petitioners in the batch of writ petitions. After noticing the judgment, they have come to the Court, are caught by delay and laches as held by the apex Court in Nadia Distt. Primary School Council vs. Sristidhar Biswas AIR 2007 SC 2640. It is apt to reproduce the relevant portion of para 4 herein:::: Downloaded on - 15/04/2017 18:45:11 :::HCHP
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"4. We have heard learned counsel for the parties. Learned counsel for the appellants submitted that the persons who had not approached the Court in time and waited for the result of the decision of other cases cannot stand to benefit. The Court only gives the benefit to the persons who were vigilant about their rights and not who sit in fence. Mallick's case was decided in 1982, in 1989 Dibakar .
Pal filed the petition and thereafter in 1989 respondents herein filed the writ petition. Thereafter petition filed by Dibakar Pal challenging the panel of 1980 was hopelessly belated. Likewise the present writ petition filed by the respondents herein. The explanation that the respondents waited for the judgment in Mallick's case of Dibakar's case, is hardly relevant......"
of
35.The apex court in Ghulam Rasool Lone vs. State of J & K, 2009 AIR SCW 5260, laid down the same rt principles of law. It is apt to reproduce the relevant portion of paras 14 and 18 herein:
"14. The discretionary jurisdiction under Article 226 of the Constitution may, however, be denied on the ground of delay and latches. It is now well settled that who claims equity must enforce his claim within a reasonable time.......
18. While considering the question of delay and latches on the part of the petitioner, the court must also consider the effect thereof. Promotion of Hamidullah Dar was effected in the year 1987. Abdul Rashid Rather filed his writ petition immediately after the promotion was granted. He, therefore, was not guilty of any delay in ventilating his grievances. It will bear repetition to state that the petitioner waited till Abdul Rashid Rather was in fact promoted. He did not consider it necessary either to join him or to file a separate writ petition immediately thereafter, although even according to him, Abdul Rashid Rather was junior to him. The Division Bench, therefore, in our opinion rightly opined that the petitioner was sitting on the fence."
36. The same principles of law have been laid down by the apex Court in a latest judgment in State of ::: Downloaded on - 15/04/2017 18:45:11 :::HCHP
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Uttar Pradesh & Ors. v. Arvind Kumar Srivastava & Ors JT 2014 (12) SC 94, and it has been held as under:
"23.........
1........
.
(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 of rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a rt valid ground to dismiss their claim."
24.Viewed from this angle, in the present case, we find that the selection process took place in the year 1986.
Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these respondents would be almost 50 years of age or above."
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13. Applying the test in this case, the Writ Court has rightly dismissed the writ petition, needs no interference. Accordingly the LPA is dismissed along .
with pending applications, if any.
(Mansoor Ahmad Mir) Chief Justice.
of August 13, 2015. Dharam Chand Chaudhary) (cm Thakur) Judge.
rt ::: Downloaded on - 15/04/2017 18:45:11 :::HCHP