Madhya Pradesh High Court
Bhagwan Das Sahu vs The State Of Madhya Pradesh on 3 January, 2019
1
THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.22107/2018
Bhagwan Das Sahu and others Vs. State of M.P. and others
Gwalior, Dated :03/01/2019
Ms. Ankita Mathur, Advocate for petitioners.
Shri Vivek Jain, Government Advocate for respondents
no.1 and 2/State.
This petition under Article 226 of the Constitution of India has been filed against the order dated 2/6/2017, by which the services of the petitioners were discontinued.
The necessary facts for disposal of the present petition in short are that the petitioners alongwith the other persons was appointed on contract basis and by resolution dated 3/5/2017 the services of the petitioners and the other persons were extended upto 31/3/2018. However, it appears that on 2/6/2017 a decision was taken that since the employees appointed on contract basis are not functioning properly, therefore, they should be removed from services by giving one month salary in lieu of notice.
It is submitted by the counsel for the petitioners that some of the persons, who are identically placed with that of the petitioners, had approached this Court by filing writ petition Nos.3927/2017 and 3928/2017 and notices have been issued and interim orders were passed, therefore, the present petition may also be admitted.
2THE HIGH COURT OF MADHYA PRADESH Writ Petition No.22107/2018 Bhagwan Das Sahu and others Vs. State of M.P. and others Per contra, it is submitted by the counsel for the State that by resolution dated 3/5/2017 the petitioners were appointed on contract basis till 31/3/2018 and the said date has also expired.
Even if the order dated 2/6/2017 is set aside, still the petitioners would not get any substantive relief, as the term as extended by resolution dated 3/5/2017 has already come to an end on 31/3/2018 and, accordingly, this petition suffers from delay and latches.
Considered the submissions made by the counsel for the parties.
It is an undisputed fact that the petitioners were appointed on contract basis for a period of one year and their term was extended by resolution dated 3/5/2017 till 31/3/2018, however, in the meanwhile by order dated 2/6/2017 the services of the petitioners were discontinued after making payment of one month salary in lieu of one month notice. Thus, even if the order dated 2/6/2017 is set aside, still the petitioners would not get any substantive relief as their term has already come to an end on 31/3/2018 and thus, this Court is of the considered opinion that the petitioners have approached the Court with a considerable delay.
The Supreme Court in the case of Karnataka Power 3 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.22107/2018 Bhagwan Das Sahu and others Vs. State of M.P. and others Corpon. Ltd. Vs. K. Thangappan, reported in (2006) 4 SCC 322 has held as under :-
''6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports (1969) 1 SCC 185. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd (1874) 5 PC 221 (PC at p. 239) was approved by this Court in Moon Mills Ltd. v. M.R. Meher AIR 1967 SC 1450 and Maharashtra SRTC v.
Shri Balwant Regular Motor Service AIR 1969 SC 329 Sir Barnes had stated:
"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 limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important 4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.22107/2018 Bhagwan Das Sahu and others Vs. State of M.P. and others in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy."
8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to Article 32 of the Constitution. It is apparent that what has been stated as regards that article would apply, a fortiori, to Article 226. It was observed in Rabindranath Bose v. Union of India AIR 1970 SC 470 that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution-makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal Jaiswal AIR 1987 SC 251 that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High 5 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.22107/2018 Bhagwan Das Sahu and others Vs. State of M.P. and others Court in deciding whether or not to exercise such jurisdiction.'' The Supreme Court in the case of M.P. Ram Mohan Raja Vs. State of T.N. reported in (2007) 9 SCC 78 has held as under:-
''11. So far as the question of delay is concerned, no hard-and-fast rule can be laid down and it will depend on the facts of each case. In the present case, the facts stare at the face of it that on 8-10- 1996 an order was passed by the Collector in pursuance of the order passed by the High Court, rejecting the application of the writ petitioner for consideration of the grant of mining lease. The writ petitioner sat tight over the matter and did not challenge the same up to 2003. This on the face of it appears to be very serious. A person who can sit tight for such a long time for no justifiable reason, cannot be given any benefit.'' The Supreme Court in the case of Shiv Dass Vs. Union of India reported in (2007) 9 SCC 274 has held as under :
''6. Normally, in the case of belated approach writ petition has to be dismissed. Delay or laches is one of the factors to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports AIR 1970 SC 769. Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes 6 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.22107/2018 Bhagwan Das Sahu and others Vs. State of M.P. and others Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd, PC at p. 239 was approved by this Court in Moon Mills Ltd. v. M.R. Meher and Maharashtra SRTC v. Balwant Regular Motor Service.
Sir Barnes had stated:
"Now the doctrine of laches in courts of equity is not an arbitrary or 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, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, 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 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."
8. It was stated in State of M.P. v. Nandlal Jaiswal that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an 7 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.22107/2018 Bhagwan Das Sahu and others Vs. State of M.P. and others important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.'' The Supreme Court in the case of Nadia Distt. Primary School Council Vs. Sristidhar Biswar reported in (2007) 12 SCC 779 has held as under :-
''11. In the present case, the panel was prepared in 1980 and the petitioners approached the court in 1989 after the decision**in Dibakar Pal. Such persons should not be given any benefit by the court when they allowed more than nine years to elapse. Delay is very significant in matters of granting relief and courts cannot come to the rescue of the persons who are not vigilant of their rights. Therefore, the view taken by the High Court condoning the delay of nine years cannot be countenanced.'' The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant Singh reported in (2006) 11 SCC 464 has held as under:-
''12. The statement of law has also been summarised in Halsbury's Laws of England, para 911, p. 395 as follows:
"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 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 where by 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 8 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.22107/2018 Bhagwan Das Sahu and others Vs. State of M.P. and others lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
The Supreme Court in the case of Jagdish Lal Vs. State of Haryana reported in (1997) 6 SCC 538 has held as under :
''18. That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution.
The Supreme Court in the case of NDMC Vs. Pan Singh reported in (2007) 9 SCC 278 has held as under :
''16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal Nigam v. Jaswant Singh and Karnataka Power Corpn. Ltd. v. K. Thangappan.)
17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India and M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court held: (SCC p. 277, paras 9-10)
"9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in 9 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.22107/2018 Bhagwan Das Sahu and others Vs. State of M.P. and others K.V. Rajalakshmiah Setty v. State of Mysore. There is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See also State of Orissa v. Arun Kumar Patnaik.) In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."
Considering the facts and circumstances of the case as well as the fact that as the term of the petitioners has already expired on 31/3/2018 and no substantive relief can be granted to the petitioners at this stage, therefore, this Court is of the considered opinion that no purpose would be served by entertaining this petition. Accordingly, the writ petition is dismissed in limine.
(G.S. Ahluwalia)
Arun* Judge
ARUN KUMAR MISHRA
2019.01.05 16:30:32 +05'30'