Rajasthan High Court - Jaipur
Rajasthan State Electricity Board And ... vs Sultan Mohd. on 24 September, 1999
Equivalent citations: (2000)IIILLJ691RAJ, 2000(2)WLC22
Author: N.N. Mathur
Bench: N.N. Mathur
JUDGMENT N.N. Mathur, J.
1. Admit.
2. Mr. M.R. Singhvi waives service of notice on respondent in each appeal.
3. With the consent of the learned counsel for the parties, all these special appeals are being taken up for final hearing.
4. The learned single judge by a common order dated February 23, 1999, following the decision of this Court dated August 29, 1995 rendered in S.B. Civil Writ Petition" No. 72/1986 "N.C. Kutty v. R.S.E.B.", allowed each writ petition setting aside the letter dated January 7, 1984 of Dy. Director (Award). The learned Judge also directed to fix the petitioner's salary in terms of the Arbitration Award. Hence these appeals.
5. It appears that the technical workmen under the Rajasthan State Electricity Board, hereinafter referred to as 'the Board', raised demand for revising and fixing proper pay scale commensurating to their duties. An agreement was entered into between the employees Union and the respondent Board by which the dispute was referred to two arbitrators viz; S/Shri Prithvi Singh and A.L. Sancheti in accordance with the provisions of Section 10-B(I) of the Industrial Disputes Act, hereinafter referred to as 'the Act'. Following were the terms of reference:
"(1) To decide the principles to regulate fixation/adjustment/promotion of all the technical workmen of the Rajasthan State Electricity Board in respect to the following periods:
(1) From April 1, 1968 to March 31, 1977, who have completed a continuous service of two years or more by March 31, 1977.
(ii) In respect of all the technical workmen from April 1, 1977 and onwards.
(2) To decide/frame the procedure/ regulations for recruitment and promotion of all technical workmen to come into force with effect from April 1, 1977."
6. The arbitrators delivered the Award in two phases. The first part of the Award was delivered on May 31, 1978 and second part was delivered on June 15, 1979. As per para 14 of the Award dated May 31, 1978, certain employees who have continuously in Board's service on the specified date required to be given regular pay scales. Para 14 reads as follows:
"14. In case of any difference in opinion/assessment in classification as to whether a person belongs or should belong to EHT trade or not, such difference will be decided by the Technical Member on a reference. The technical workmen engaged/recruited on work-charged/daily rated/Muster Roll/Casual excluding those covered by classification of EHT Trade/Wing as referred to in the Memorandum of Settlement dated June 8, 1971, between the Board and the PVMMF, who have completed two years or more continuous service and have been continuously in the Board's service, on completion of such service have not been fixed in Regular Pay Scales shall be given regular pay scale from the dates mentioned below against each classification with due regard to the trade."
7. After the aforesaid paragraph, different classification and the date from which regular pay scale is to be given arc mentioned in tabular form. Clause (iv) is relevant for our purposes which reads as follows:
"Classification (Period of service) Date from which regular pay scale to be given
(i) XX XX
ii) XX XX
iii) XX XX
iv) XX XX
v) Those who have completed two years continuous service upto/as on March 31, 1975 and have been continuously in the Board's service thereafter.
April 1, 1975
vi) XX XX
vii) XX XX
viii) XX XX
ix) XX XX
8. For implementation of the Award, a Pay Fixation Committee was constituted. The said Committee was required to see as to whether on the relevant date i.e. March 31, 1975 the concerned workman was in service continuously for two years in the classified trade and has continued in service thereafter. However, the Deputy Director (Award) issued impugned letter dated January 7, 1984 rejecting that the position existed at the time of initial appointment should be taken into consideration for fixing the pay scale. The Deputy Director also directed by way of clarification that any change in designation subsequent to initial appointment shall not be taken into consideration. The Pay Fixation Committee, accordingly considered the position of individual workman as it existed at the time of initial appointment and denied the fixation of pay on the basis of subsequent appointment/change in the designation on the trade, as in which he had been working for two years as on May 31, 1975. One of such workman namely Jawahar Singh challenged the decision of the Pay Fixation Committee by way of filing a writ petition being S.B. Civil Writ Petition No. 397/85 before this Court in the year 1985. The writ petition was resisted by the Board on the technical ground that the petition for implementation of the Award was not maintainable and the petitioner be relegated to the alternative remedy under Section 33(c) of the Industrial Disputes Act. The learned single Judge upheld the preliminary objection and dismissed the writ petition by judgment dated January 22, 1992. Against the said judgment, a special appeal was preferred. The Division Bench did not agree with the view of the learned single Judge with respect to relegating the petitioner to the remedy under Section 33(c) of the Act on the ground that the petitioner's prayer was for setting aside the decision of the Fixation Committee and not for implementation of the Award. On merit, the Division Bench held that the Fixation Committee had fallen in error in taking into consideration the initial appointment of the employee concerned. The Court held that Fixation Committee was required to see as to whether on the relevant date i.e. on March 31, 1975, the petitioner had been in service continuously for two years in the trade of the Lineman II. On appreciation of material available on record, the Division Bench found that Jawahar Singh had been working as Lineman II lor two years in the said trade just prior to March 31, 1975. Accordingly, the Division Bench set aside the decision of the Fixation Committee dated September 28, 1984 and directed the Board to consider the services of Jawahar Singh as Lineman II and confer upon him the benefit flowing on that basis. It is not in dispute that said judgment has attained finality.
9. Another writ petition was filed by one N.C. Kutty (supra). The learned single Judge held the directions contained in the letter dated January 7, 1984 passed by the Deputy Director (Award) as illegal being ultra vires of the Award. The writ petition was allowed by the judgment dated August 29, 1995 directing to fix the petitioner's salary as Lineman w.e.f. April 1, 1974 and pay him arrears within three months. The Board preferred an appeal against the said judgment, which has been dismissed by the judgment of the Division Bench.
10. It is contended by Mr. D.S. Shishodia, learned senior advocate, assisted by Mr. Ravi Bhansali, appearing for the Board, that the learned single Judge has committed an error in not considering that the writ petition was highly belated inasmuch as that the order rejecting the claim for pay fixation dated August 28, 1985: was challenged after number of years by filing a writ petition in the year 1996. It is submitted that the writ petitioners are not entitled to benefit of the decisions of this Court in the cases of N.C. Kutty and Jawahar Singh as they had approached this Court immediately by way of filing writ petition in the year 1985 and 1986 respectively. It is also submitted that in case, they are granted the same relief, it will not only cause a heavy financial burden on Board but also affect the seniority of the hundreds of persons. It is also submitted that if they are granted the same relief, they are likely to earn promotion to which they are not entitled as they do not fulfill the requisite qualification.
11. On the other hand, Mr. M.R. Singhvi learned counsel appearing for the respondent workmen submits that appellants cannot be permitted to raise a plea of delay and laches first time in appeal as the same was not raised before the learned single Judge. It is further submitted that the writ petitioners have been denied proper fixation in pay scale in accordance with the Award because of the illegal direction dated January 7, 1984, issued by the Deputy Director (Award). It is vehemently argued by Mr. Singhvi that the decision of the Fixation Committee based on letter dated January 7, 1984 of the Deputy Director, is illegal because the said letter is ultra vires of the Award inasmuch as though the Award does not provide anything about the person who has been given different designation within two years of his service, still such exception has been carved out by the Deputy Director in his letter. It is further submitted that the Fixation Committee was only required to see the post, which the individual workman was holding during the period of two years, just prior to March 31, 1975. It is contended that the decision of the Fixation Committee dated August 28, 1985 has been quashed by the learned single Judge and has been confirmed by the Division Bench. The decision has attained finality. As such the writ petitioners arc entitled to be treated at par with the case of Shri N.C. Kutty and Jawahar Singh.
12. We have considered the rival contentions. The question that arises for consideration is whether the learned single Judge committed an error in not considering that the writ petitions deserved to be rejected on the ground that they suffered from the delay and laches? A bare persual of the order shows that no such plea was pressed before the learned single Judge by the appellant. As such, it is not open for the Board to raise a plea of laches in appeal. It is submitted by Mr. Shishodia that the plea was very much raised before the learned single Judge, which is evident from the reply filed in S.B. Civil Writ Petition No. 2912/1996. In our view, simply raising the plea in the reply is not sufficient. If the plea has not been pressed during the course of the arguments, it can be infcred that the plea was given up.
13. It is also submitted by Mr. Shishodia that in some of the writ petitions, even the notices were not served on the Board and, as such, the reply could not be submitted in those writ petitions. There is no substance in this contention as well. The impugned order shows that Shri Prakash Tatia, Advocate, put in appearance on behalf of the Board and its officers, as such service of notices was waived by him in each writ petition, If the Board wanted to file reply in each of the petitions, learned counsel could have done so and if necessary, he could have sought time for filing the reply.
14. It is well settled that the rule which says that the Court exercising the powers under Article 226 of the Constitution of India may not enquire into the belated stale claim, is not the rule of law but a rule of practice based on sound and proper exercise of discretion. Therefore, the question of delay is one of the discretions depending on the facts of the case. The Apex Court in Tilokchand Motichand v. H.B. Munshi AIR 1970 SC 898 has observed that there is no lower limit and there is no upper limit. A case may be brought within Limitation Act by reason of some Article but writ Court need not necessarily give the total time to the litigant to move writ Court under Article 32 of the Constitution. Similarly in a suitable case, the Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose. One of the guidelines provided is that the rights, which have accrued to others by reason of delay in filing the petitions, should not be allowed to be disturbed unless there is a reasonable explanation for that. The Apex Court has reaffirmed the said view in R.S. Deodhar v. State of Maharashtra, AIR 1974 SC 259.
15. Mr. Shishodia has referred to various cases of the Apex Court wherein it is held that where there is inordinate delay and laches, the party will be disentitled to relief under Article 226 of the Constitution. A reference may be made to the cases of G.C. Gupta v. N.K. Pandey AIR 1988 SC 654, and State of Maharashtra v. Digambar AIR 1995 SC 1991 hi N. S. Mehta v. Union of India AIR 1977 SC 1673, the Court held that delay in invoking the jurisdiction of the Court, which may create equitable rights of others, may give rational grounds for discrimination so that it would cease to be a case of any violation of Articles 14 and 16 at all.
16. In the instant case, nothing has been placed on record by the Board to show as to how the proper fixation will affect the seniority and promotion. There is no material to show extra financial burden on the Board. Infact the Board is under obligation to pay the amount which is due. When the Board considers payment of amount due a financial burden, its officers forget to take into account how much interest Board has earned by withholding the amount by misreading the Award. As far as seniority and promotion is concerned, it is submitted by Mr. Singhvi that their only grievance is for fixation in the pay scale as provided by Prithvi Singh and Sancheti Award. They have not claimed seniority and promotion. The exaggeration is not going to help the appellant Board. Illegalities cannot be permitted to be perpetuated for unsustainable reasons.
17. The Apex Court in M.R. Gupta v. Union of India AIR 1996 SC 669, has held that the grievance that his pay has not been fixed in accordance with the rules is an assertion of continuing wrong against the person making the grievance, which gives right to a recurring cause of action each time, he has been paid the salary, which was not computed in accordance with the rules. Para 5 from the said judgment is extracted as follows:
"Having heard both sides, we are satisfied that the Tribunal has missed the real point and overlooked the crux of the matter. The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation or his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on August 1, 1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."
18. Thus, the mm fixation of pay in a pay scale in accordance with the rules being a continuing cause of action, a claim in that regard cannot be rejected on he ground of laches alone. However, the consequential relief in terms of seniority md promotion shall be subject to defence of laches. In the instant case, no consequential relief in terms of seniority and promotion has been claimed. If such claim is made, the same shall be considered in accordance with the rules without prejudice to the rights of the other parties.
19. It is vehemently argued by Mr. Singhvi that the case of the writ petitioners is squarely covered, by the decisions in cases of N. C. Kutty and Jawahar Singh (supra). Both the judgments have attained finality and, as such, in all fairness, the Board ought to have given the similar benefit to all the persons; similarly situated. As the same benefit was not given, the writ petitioners have been driven to file the present petitions.
20. In Chief Secretary to Govt. of Andhra Pradesh v. V.J. Cornelius, AIR 1981 SC 1099 there was a question of determination of validity of sub rule (2) of Rule 5 of the Andhra Pradesh Revised Scales of Pay Rules, 1969. The controversy was settled by a decision of the High Court in a writ petition filed by one D, Krishnamurthy. However, the benefit of the said judgment was not given to other employees on the ground that they had not obtained the similar direction from the High Court on filing petitions by other employees. The same relief was granted by the High Court, irrespective of the fact that their petitions were belated. Said decision was challenged before the Apex Court. The Court held that if the Government wanted to question the correctness of the judgment in D. Krishnamurthy's case, the remedy was by way of an appeal. By not challenging the judgment in D. Krishnamurthy's case, the State accepted the judgment and that can not now be permitted to upset by refusing to give same relief to other employees. The Court further held that effect of the decision in D, Krishnamurthy's case was that Sub-rule (2) of Rule 5 is wiped out for all purposes and the re-fixation will have to be done as if Sub-rule (2) of Rule 5 never existed.
21. A Division Bench of this Court in Shanti Raj Singhvi and Ors. v. C.P. Mathur and Ors. 1996 (2) SCC 13 in para 31-A, held that earlier judgment of the Court, which has attained finality cannot be set at naught on the ground that certain points which have been raised in the subsequent petition, have not been raised in the earlier petition.
22. In Lt. Governor of Delhi v. Dharampal 1990 (4) SCC 13 : 1991-I-LLJ-605, services of certain Constables in Delhi Police were terminated on account of their participation in the agitation along with other police Constables in the year 1967. A large number of agitating constables were taken back in service as fresh entrants. Later, in view of the assurance given in the Parliament by the Home Minister, prosecutions were withdrawn and the dismissed constables were reinducted into service. Some of the dismissed constables filed a writ petition. The order of dismissal was quashed by the High Court and they were declared to be throughout in service. The said judgment of the High Court attained finality, Subsequently, some other constables, whose services were similarly terminated but were not reinstated in service even as fresh entrants, filed the writ petition before the High Court in the year 1978. The learned single Judge rejected the contention of the respondents regarding the delay and laches and granted the same relief as were granted to other constables, who had approached the High Court. The State approached in appeal before a Division Bench. Some more writ petitions were filed. The writ petitions were transferred to the C.A.T. Again, the plea of laches was raised before the Tribunal. The Tribunal rejected the plea and held that the petitioners are entitled to same relief as was granted by the learned single Judge before the High Court. Against the said judgment of the Tribunal, the State approached the Supreme Court. The Apex Court rejected the appeal holding that the respondents being similarly circumstanced with identical claim, were entitled to the same relief.
23. Thus, when a decision is given in some cases and the said decision has attained finality, in all fairness the authorities instead of driving each person affected to the Court of law, on representation being made should scrutinize such cases within the shortest possible time and if the claim is found to be covered by the decision of the Court, such persons should be given the benefit of the decision. If it is found that the case of the person is not covered by the decision of the Court, the representation should be decided by a speaking order and same should be communicated to the person affected forthwith.
24. In the instant case, it is not in dispute that the case of each writ petitioner is covered by the decisions of this Court in N.C. Kutty and Jawahar Singh's cases (supra). The only distinction made on the ground of delay and laches has been rejected by us. Thus, we find no infirmity with the order of the learned single Judge.
25. Consequently, this group of special appeals, being devoid of merit, is for additional reasons (see separate judgment) dismissed. There shall be no order as to costs.
A.K. Singh, J.
26. I have read the judgment prepared by Hon'ble Mr. Justice N.N. MATHUR. I concur with the conclusion arrived at by His Lordship as well as the reasons for arriving at the conclusion. However, I would like to add to the reasons which, I think, are relevant to the question of exercise of powers under Article 226 of the Constitution of India in cases where there is delay in approaching the High Court.
The factual matrix has already been set out in the judgment prepared by Hon'ble Mr. Justice N.N. MATHUR.
27. The present special appeals are directed against the order dated February 23, 1999 passed by the learned single Judge, whereby the writ petitions were allowed, in view of the decision of this Court dated August 29, 1995 rendered in SB. Civil Writ Petition No. 72/1986 N.C. Kutti v. R.S.E.B. The petitioners who approached this Court under Article 226 of the Constitution by filing writ petitions and are respondents in these special appeals, are employees of the Rajasthan State Electricity Board. It is not disputed that an award had been given by the arbitrators, into two parts. The first part of the award was delivered on May 31, 1978 and the second part was delivered on June 15, 1979. Para 14 of the award dated May 31, 1978 provided that certain employees who have continuously been in Boards service on the specified date, were required to be given regular pay scale. The petitioners respondents have based their claim for fixation of pay on the aforesaid award. The implementation of the award was entrusted to a fixation committee which was required to consider whether the concerned workman was in service continuously for two years in the classified trade on March 31, 1975 and has continued in service thereafter. However, the Deputy Director (Award) issued letter dated January 7, 1984 directing that the position which existed at the time of initial appointment, should be taken into consideration for fixing the pay scale. He further directed that any change in designation subsequent to initial appointment shall not be taken into consideration. The directions contained in the letter dated January 7, 1984 were not in accordance with para 14 of the Award.
28. Two workmen, namely, Jawahar Singh and N.C. Kutti challenged the directions contained in letter dated January 7, 1984. In S.B. Civil Writ Petition No. 397/1985, flied by Jawahar Singh in the year 1985, the learned single Judge dismissed the writ petition on the ground that in view of Section 33-C of the Industrial Disputes Act, the writ petition for implementation of the award was not maintainable. A special appeal was preferred before the Division Bench. The Division Bench set aside th order of dismissal passed by the learned single Judge and, on consideration of the merits, allowed the writ petition. The decision dated September 28, 1984 of the Fixation Committee was quashed and it was held that the Fixation Committee had fallen in error in taking into consideration the initial appointment of the concerned employees. The Division Bench further held that the Fixation Committee was required to see as to whether on the relevant date i.e., on March 31, 1975, the petitioners have been in service continuously for two years in the trade of Lineman-II. The Board was directed to consider the service of Jawahar Singh as Lineman-11 and confer upon him the benefit flowing on that basis. The decision of the Division Bench has attained finality. Another writ petition was filed by N.C. Kutti. In that writ petition order dated January 7, 1984 issued by the Deputy Director (Award) was challenged by the petitioner. The writ petition was allowed by the learned single Judge by judgment dated August 29, 1995 and the Board was directed to, fix the petitioner's salary with effect from April 1, 1974 and pay him arrears within three months, A special appeal was preferred before the Division Bench by the Board but the same was dismissed. The Judgment delivered in the case of N.C. Kutti has also attained finality.
29. Six writ petitions, filed by the employees of the Board, which were allowed by the learned single Judge by a common order dated February 23, 1999 were instituted in the year 1999, obviously after delivery of judgments in the writ petitions filed by Jawahar Singh and N. C. Kutti. The learned single Judge felt that the law declared by this Court in Jawahar Singh's case and N.C. Kutti's case (supra) was binding and the petitioners before him were entitled to succeed.
30. The learned counsel for the appellant the Rajasthan State Electricity Board, has challenged the impugned order passed by the learned single Judge on the ground that all the six writ petitions covered by the impugned judgment, were liable to be dismissed on the ground of delay inasmuch as the petitioners in all these six writ petitions, have approached this Court in 1999 whereas the order of fixation was passed by the Deputy Director (Award) on January 7, 1984.
31. Reliance has been placed by the learned counsel for the appellants on the, discretion vested in this Court to decline to grant any relief to the petitioner if the petition has been filed with such delay as the Court, in the facts and circumstances of the case, considers unnecessary and excessive. The premises on which the argument is based consists of the assumption that the delay in approaching this Court, has resulted in disqualifying the petitioners-respondents from seeking any relief under Article 226 of the Constitution of India, To support the contention, the learned counsel for the appellant has drawn our attention to the observations made by Hon'ble the Supreme Court in the cases cited by him. The learned counsel for the respondents have vehemently opposed the argument advanced by the learned counsel for the appellant. It is submitted by him that, in the instant case, neither the delay is of such a nature as to disqualify the petitioner-respondents from seeking relief under Article 226 of the Constitution nor the responsibility to fix the wages of the petitioners-respondents in accordance with the award, can be avoided on the ground of delay in approaching this Court.
32. We have carefully considered the arguments advanced by the learned counsel for the appellants and the respondents and we have pondered over the principles which we think are relevant for the purpose of determining whether the discretion vested in this Court should be exercised in one way or the other.
33. It is not in dispute that the grant of relief under Article 226 of the Constitution by the High Court is discretionary, which means that the High Court may, in exercise of the discretion vested in it, either proceed to grant the relief prayed for in the writ petition or may decline to grant the relief. The discretion, is vested in the Court and it is to be exercised judicially. Neither this Court is bound to grant the relief nor this Court is bound to dismiss the writ petition filed by the Citizen but the power to grant relief or dismiss the writ petition must be exercised in judicial manner.
34. Whenever a discretion is conferred on any person or authority, it is for such person or authority to find out the manner in which the discretion is to be exercised. The duty to find out the reasons for exercising discretion, can be spelled out from several provisions of Constitution including Article 14 and Article 21 of the Constitution. Every discretion, when exercised in either of the two ways, i.e., by granting relief or by refusing relief, necessarily results in classifying the petitioners into classes, (a) those who are entitled to relief and (b) those who are denied relief. In order this classification may stand the test of Article 14 of the Constitution, it must be shown that there is a valid object behind the classification and the classification is based on an intelligible differential having a rational nexus with the object for which the classification in question is made. If the classification is not subjected to this test, there is every possibility that the discretion may contravene Article 14 of the Constitution. If the discretion, when tested on touch stone of Article 14 of the Constitution, fails to stand the above mentioned test, the discretion would have to be called ultra vires Article 14 of the Constitution. The duty to exercise the, discretion in accordance with the provisions of Constitution of India, including Article 14 of the Constitution, is thus mandatory and cannot be avoided.
35. The duty to ascertain the principles which should guide this Court in exercising its discretion, is all the more imperative in the case of special appeals filed under Section 18 of the Rajasthan High Court Ordinance, 1949, because these special appeals are against the judgments given by the Hon'ble Judges who cannot be any stretch of imagination be called subordinate Judges. The Judges against whose judgments and orders, special appeals are filed under Section 18 of the Rajasthan High Court Ordinance, 1949 are Hon'ble Judges of the Rajasthan High Court and, since each Hon'ble Judge, enjoys equal status, and is entitled to the presumption that he is equal to other Hon'ble Judges of this Court in the matter of knowledge of law as well as the legal principles and is equally adept in applying them, in order, the judgment or order passed by the Hon'ble Judge may be interfered with in special appeals, there must be legitimate substantial reasons for such interference. It is well established that when we have to scrutinise the acts of those who are not inferior in any manner and are entitled to be treated as equals, the criticism must be founded on something which is superior to both, one whose action is scrutinised and those who scrutinise the action in question. In other words, there must be well established principles, entitled to a superior status, on account of their being a part and parcel of that body of law which every citizen including the Judges are bound to obey irrespective of their status as individual citizen or occupiers of any public office. The conduct of those who are equals cannot be criticised lightly. Such conduct can be criticised only on the basis of well established principles occupying the higher status. If such principles cannot be found out or cannot be articulated with precision and clarity, the justification for criticising the act of person who is equal, would be conspicuous by its absence and, as a consequence, there would be no justification to interfere with the impugned order or judgment.
36. Hence, it is necessary to find out the principles which should guide the High Court in the matter of exercising its discretion to reject the writ petition filed under Article 226 of the Constitution of India on account of delay and laches.
37. The framers of the Constitution, of India have not incorporated the reasons in Article 226 of the Constitution to guide the Courts in exercise of above mentioned discretion vested in the Courts. Hence, these principles have to be ascertained from the context as well as from the judicial precedents. The investigation about such principles may be commenced by asking two fold questions, (a) what is the reason behind the exercise of power under Article 226 of the Constitution of India by the High Court and (b) what are those legitimate reasons which may justify refusal on the part of the High Court to grant relief under Article 226 of the Constitution in cases where the petitions have been filed with delay.
38. The answers to the above mentioned two questions cannot be found out by any amount of exercise of interpretation of the words used in Article 226 of the Constitution because Article 226 of the Constitution does not contain any such word as may convey the intention of the framers of the Constitution as to the effect of delay. Regarding the principles which should guide the Court in exercising its discretion, it is well established that if the legislature is silent about a certain matter and has not used any words to indicate its intention, the rule of literal construction which is often described as the golden rule of interpretation cannot be applied. It is the rule of contextual interpretation which alone can enable the Court in discovering or laying down the principles to guide it in the matter. We feel that it is the rule of contextual interpretation which alone is applicable for the purpose of finding out the principles which should guide the discretion of the Court in the matter of delay in filing petitions.
39. The rule of contextual interpretation, necessitates, by necessary implication, that every relevant circumstance which constitutes the context, must be taken into consideration before arriving at any conclusion. We, therefore, deem it fit to take into consideration all those matters which are relevant to the exercise of judicial discretion in the matter of exercise of jurisdiction under Article 226 of the Constitution. The first question posed for commencing the investigation is what are the reasons behind the grant of relief by the High Court under Article 226 of the; Constitution of India. The phraseology used in Article 226(1) of the Constitution shows that the power to issue direction, order or writ, may be exercised either for the enforcement of any of the rights conferred by part III of the Constitution or for 'any other purpose'. The expression 'any' other purpose' has not been defined by the framers of the Constitution but, having regard to the nature of judicial powers vested in the High Court, it may be said without hesitation that the expression 'any other purpose' used in Article 226(1) of the Constitution, includes, doing justice to the parties approaching the High Court and 'upholding the rule of law'. The object of doing justice, to the citizens, must be regarded as one of the most sacred functions of Courts including the High Court. The object of enforcing the rule of law, is not less important than the object of doing justice to the parties, because administration of justice necessarily depends on the enforcement of rule of law. We, therefore, have no hesitation in coming to the conclusion that the reasons for exercising the constitutional power conferred by Article 226 of the Constitution is to enforce any fundamental right conferred by Part III of the Constitution; or to do justice to the parties; or to enforce the rule of law by issuing appropriate direction, order or writ. Having ascertained the answer to the first question, we feel it necessary to find out the answer to the second question, viz, the reasons for refusing to grant relief under Article 226 of the Constitution of India in the case of delayed petitions. The answer to the second question is not easy to be found out because it cannot be said mat the object behind refusal to grant relief is to allow the fundamental right of citizen be taken away or to deny them justice or to allow the rule of law to be deteriorated. The three sacred objects, namely, enforcement of fundamental right conferred by Part III of the Constitution, doing justice to 'the party' coming to the Court and enforcement of rule of law, must be before the Court as the primary objects to be attained irrespective of the manner in which power under Article 226 of the Constitution is to be exercised. In other words, even when the High Court refuses to grant relief under Article 226 of the Constitution, the object behind such refusal can be no other than the enforcement of the fundamental right, or doing justice to the parties or enforcement of the rule of law.
40. Refusal, to grant relief under Article 226 of the Constitution on the ground of delay, cannot be reconciled with the primary objects of enforcing any fundamental right conferred by Part in or doing justice to the parties or enforcing the rule of law, because refusal to grant relief to the parties who approach the Court for redressal of their grievance, would in all probability result in the deprivation of fundamental right or denial of justice or deterioration of rule of law, if the allegations made in the petition are correct. The question is, what are the reasons which may justify the Court to refuse to grant relief under Article 226 of the Constitution on the ground of delay if otherwise the petitioner is entitled, to such relief? We are aware of the provisions of Limitation Act, 1963 which prescribes the period for several acts including the filing of the petitions in the Court. The reasons for prescribing the period of limitation, in Rajendra Singh v. Santa Singh AIR 1973 SC 2537, their Lordships of the Hon'ble Supreme Court observed :
"The object of the Law of Limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by party's own inaction, negligence or laches."
41. Another object behind the Law of Limitation appears to be indicated by maxim "interest reipublicae ut sit finis litium" which means that the interest of State requires that there should be an end to litigation.
42. In (1982)5 Moor Ind App 234 (PC), it was pointed out that "Limitation laws are very necessary, otherwise no person could remain certain that he would not be dragged before the Courts to answer for a debt allegedly incurred by some earlier ancestor of his."
43. In Bell v. Morrison 7 Peters/US) R 360 STORY, J. observed:
"Instead of being viewed.in an unfavourable light as an unjust and discreditable defence, should have received such support from Courts of justice as would have made it, what it was intended emphatically to be, a statute of repose."
In his 'CONFLICT OF LAWS', following observations were made :
"Laws, thus limitating suits, are founded in the noblest policy. They are statutes of repose, to quite titles, to suppress frauds, and to supply the deficiency of proofs arising from the ambiguity and obscurity or the antiquity of transactions. They proceed upon the presumption that claims are extinguished, or ought to be held extinguished, when ever they are not litigated in the proper forum within the prescribed period. They take away all solid grounds of complaints, because they rest on the negligence or neglect of the party himself. They quicken diligence by making it, in some measure, equivalent to right. They discourage litigation by bringing in one common receptacle all the accumulations of past time which are unexplained, and have now, from lapse of time, become inapplicable. It has been said by John Voet with singular felicity that controversies are limited to a fixed period of time lest they should be immortal while men are mortal."
44. The Law of Limitation, has thus been attempted to be explained by giving more than one reasons for its 'utility. In short, it is the doctrine of necessity which justifies the law of limitation, which prohibits the availability of legal remedy for redress of injustice.
45. Whenever it is the doctrine of necessity which is pleaded as an excuse for denying the legal remedy to one whose fundamental right or other legal right has been taken away, either by the State or by any citizen, the cases which may be justified by the doctrine of necessity must necessarily fall in the category of exceptions rather than the general rule which is, to enforce the fundamental right, administer justice to the party and enforce the principle of the rule of law.
46. The denial of relief to the petitioner on the ground that he did not file the writ petition in the High Court earlier, by necessary implication, penalises the petitioner for the delay in filing the petition before the Court. Such a course would be permissible if it can be legitimately shown that in the matter of obtaining justice by insisting upon the enforcement of rule of law, the responsibility is of the citizen and not of the State. We are conscious of the fact that we have inherited the adversary systems of doing justice from the Anglo-saxon countries because we were under the yoke of British empire till we regained independence in 1947. In England there was no written Constitution and no fundamental right, and the Municipal Courts which are entrusted with the task of doing justice dealt with, mostly the cases involving disputes between one citizen and another. The constitutional questions, relating to administration of justice thus did not arise in England which gave us the adversary system of justice. Therefore, when administering justice under the Indian Constitution, we are faced with questions substantially concerning the lives and liberties of the citizens, it would be futile to find out sufficient and convincing answers in the judgments delivered by the English Courts. It is quite possible that in such cases, it would be necessary to find out the answers ourselves. Since we have come to the conclusion that the judicial power conferred on the High Court under Article 226 of the Constitution, is for the citizen and another. The constitutional questions, relating to administration of justice thus did not arise in England which gave us the adversary system of justice. Therefore, when administering justice under the Indian Constitution, we are faced with questions substantially concerning the lives and liberties of the citizens, it would be futile to find out sufficient and convincing answers in the judgments delivered by the English Courts. It is quite possible that in such cases, it would be necessary to find out the answers ourselves. Since we have come to the conclusion that the judicial power conferred on the High Court under Article 226 of the Constitution, is for the purpose of, (a) enforcement of any fundamental right conferred by Part III of the Constitution, (b) doing justice to the parties and (c) enforcing the rule of law, it would be proper to concentrate on these three objects so as to obtain the illumination necessary for finding the answer to the question before us.
47. The doctrine of rule of law, presupposes that the people are to be governed by law and not by lawlessness. The law which is to govern the people, cannot be the law which individual human being may, in its discretion, make for himself and others. The law which is to govern the people must be the law enacted by a; competent Legislature in whom the power to enact the law is reposed, no matter what is the form of government. The Legislature which enacts and gives law to the people for the purpose of regulating their lives, liberties, fates and fortunes, it is obviously distinguishable from the individual citizen. In view of this fact, can it be said that the responsibility to enforce the law primarily lies on the citizen? We feel that the very doctrine of rule of law, presupposes that the law by which the people are to be governed is to be given by a competent Legislature, distinguishable from the individual citizen for whom the law is made and, therefore, the responsibility to enforce the rule of law must necessarily lie on the State and the rest of the society rather than on the citizen who is to be governed by such law. The suggestion that the primary responsibility of enforcing the rule of law lies on the citizen and, therefore, he should take appropriate action by filing the writ petition in the High Court and, if he fails to do so, the law should not be enforced, does not appear to be a correct proposition. In our considered view, the doctrine of rule of law, by necessary implication, demands that the primary responsibility of enforcing the rule of law must be that of the State and the rest of the society, other than the citizen concerned. His contribution in the enforcement of law, though substantial, would not shift the primary responsibility to enforce the law to his shoulders.
48. In view of our conclusion that the primary responsibility of enforcing the rule of law is that of the State and the rest of the society and not of the concerned citizen, it must be held that the State and its various organs must take appropriate steps in time to enforce th rule of law considering it to be their primary responsibility, without waiting for the petition from the citizen. It is for the State and its functionaries to justify their omission to enforce the rule of law and, the blame for non-enforcement of rule of law on their part, cannot be shifted to the concerned individual nor the duty to-enforce the rule of law can be avoided on the ground that the petitioner did not move a petition or that the petition filed by him was delayed.
49. Whenever rule of contextual interpretation is resorted to, the basic principles which constitute the context cannot be avoided.
Whatever may be the differences among the various communities of human beings in respect of their policies, form of government, system of justice or their, ways of life, one common factor is always visible and it is the presence of that which we call 'humanity' which is distinguishable from the existence of the savages in the jungle or the lives of beasts. If any single important characteristic predominantly reveals itself in a human society, it is the dependence of every member of the human society on the rest of the society for all material things including the protection of the right of life and liberty, equality, fraternity and justice. There appears to be the phenomenon of dependence, so conspicuous by his presence that every one in human society depends on other members of the society for almost all the things which are material to his or her existence and to make the life meaningful. The human society, in turn, is dependant on every individual member of such society for its existence and well being. Thus, the human society is dependant on every individual member and every individual member of the human society is dependant on the rest of the society. As a result, while individual is taught to serve the society of which he is a member, other members of the human society are taught to look after the interest of the individual member. Without this dependence of the society on the individual and the individual on the society, humanity would be a myth, never to be materialised. This mutual interdependence of the individual on the part of the society and on the individual is, in our opinion, such a basic principle which cannot be lost sight of when the rights and duties of the individual and the society are to be ascertained by application of rule of contextual interpretation. Justice in a human society, therefore, is characterised by dependence of the individual on the society for giving him what is his due and to protect his rights, even if he is not aware of them or is not possessed of sufficient means to protect them or for any other reason, is incapacitated from taking necessary steps for the purpose of enforcing them. In turn, the society for the purpose of administering justice, depends on deliberate action on the part of his members, to act in accordance with the rule of law and well established principles so that the society may, discharge its duty to be just to all in an appropriate manner. Fundamental rights conferred by Part III of the Constitution are the most important rights of the people and without the above-mentioned dependence of the individual on the society and the society on the individual, these fundamental rights would become meaningless because no individual can by his own efforts protect his fundamental rights even for a single day, if others surrounding him are determined to deprive: him of such rights. A just man in human society is not one who is conscious of his own rights only and enforces them being completely oblivious of the rights of others. On the other hand, a just person is one who is conscious not only of his own rights but the rights of the others also and is devoted to the task of protecting the rights of others.
50. On the touch stone of the basic principles of interdependence of the human society on the individual and the individual on the human society, the suggestion that every individual must take steps to protect his or her own right or suffer the extinction of his right does not appear to be correct. Every man in a 24 hours day is placed in hundreds of situations in which his fundamental rights and legal rights may be infringed by others and, if for every such infringement he is required to file a suit or a writ petition in a Court, one can only guess how many suits and petitions he will have to file in a year to assert and enforce his rights. In a country, where the population runs in crores, if every individual is forced to file a suit or a writ petition for every infringement of his right, one can only guess how many suits and writ petitions will have to be flied in the Courts of law by the citizens of India for enforcing their rights. If every man and woman of this country files even a single writ petition in the High Court, once a month, there would be institution of at least 1200 crores writ petitions in the High Courts which no country can afford to entertain and much less dispose of. The rule of jungle that every one should take steps for protecting and enforcing its right or suffer the extinction thereof, has no application to a human society and, as we have pointed out, the human society to us appears to be founded on the basic principles of interdependence which means that in human society the individual members ordinarily must not be called upon to take steps for the purpose of asserting and enforcing their rights and, that their rights should be recognised, protected and enforced by the rest of the society including the State and its agencies.
51. We may now refer to the statutory provisions which support our view. In the Indian Penal Code every person has a right to defend his own life and property and also to defend the life and property of others but this right is not available if there is opportunity for recourse to public authorities for granting him protection against the offence likely to be committed against the person or the property. The rule that if there is an opportunity of recourse to public authorities, the citizens should not exercise the right of private defence, clearly supports our conclusion that in a human society, it is the law of dependence of the individual on the society which applies and the law of self-reliance, in the matter of asserting and enforcing one's right has limited application. It is a well established principle in all civilised nations governed by rule of law that citizens must not take law in their hands and leave it to the public authorities including the Courts, to protect their rights if there is any threat to such rights. This taboo against the enforcement of one's right by one s own effort, clearly supports our conclusion that in the human society, the individual is not supposed to assert and enforce his right; his right must be recognised, protected and enforced by the rest of the society. When the Indian Constitution was framed, the founding fathers of the Indian Constitution were very well aware of this phenomenon of dependence and, therefore, the fundamental rights conferred by Part III of the Constitution have been stated in a language, which in place of requiring the individual to assert and enforce his right, imposes a duty on the State and the rest of the society not to violate the fundamental rights. It is by the imposition of prohibition on the prospective invaders of the fundamental rights that the founding fathers of the Constitution of.
India have designed to secure and enforce the fundamental rights of the people. We are, thus, supported in our conclusion that the basic principles which govern the human society is the principle of dependence of the individual on the rest of the society.
52. To sum up, the doctrine of rule of law, in the context of basic principles on which the human society is founded, inevitably leads to the conclusion that the individual must riot be saddled with the responsibility of enforcing his rights by his own efforts and that it is the duty of the State and its various organs and the entire society to recognise protect and enforce the rights of every citizen. The cases in which the individual may be required to take steps for the purpose of asserting and enforcing his own rights must be rare and they should be in the nature of exceptions rather than the general rule and we shall deal with such exceptional cases later on after we have dealt with general rule, which to us, is clearly visible from the context referred to by us.
53. One of the objects for which constitutional power has been conferred under Article 226 of the Constitution is to enforce the fundamental right by issuance of an order, direction or a writ as envisaged by Article 226 of the Constitution. The fundamental rights conferred by Part III of the Constitution, clearly indicate by the words used by the founding fathers of the Constitution that it is more, the duty of the rest of the society and the State rather than the duty of the individual citizen to protect his own rights which are described as fundamental rights. It has been repeatedly held in several cases that Hon'ble the Supreme Court and the High Courts are the custodians of the fundamental rights of the people and that it is their duty to ensure that the fundamental rights are not denied to any person. Any action which results in deprivation of the fundamental rights, is liable to be quashed on the ground of being violative of the fundamental rights conferred by Part III of the Constitution. Even the law enacted by the Legislature is liable to be declared as void under Article 13 of the Constitution if it contravenes any fundamental right conferred by Part III of the Constitution. The general rule, which is very obvious from the language used by the framers of the Constitution, in Part III of the Constitution, is that every person including the State and its organs, must take pains to ensure that the action does not in any manner deprive any person of his or her fundamental right because such adtion would be void ab initio and, would not be permissible. In Ram Narayan Singh v. State of Delhi AIR 1953 SC 277 the Hon'ble Supreme Court in an unambiguous language laid down the law that "those who called upon to deprive other persons of their personal liberty in discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of law". The Hon'ble Supreme Court did not impose any duty on the citizens to assert and take necessary steps to enforce their fundamental rights if there was any threat to such rights. We are, therefore, of the considered opinion, as a general rule, it is the duty of the State and its functionaries and the society to take pains to ensure that the action does not deprive any person or his or her fundamental right and to protect such person's fundamental rights even without his asking. No other view would be compatible with the doctrine of rule of law and the supremacy of the fundamental rights conferred by Part III of the Constitution.
54. The third object, for which powers have been conferred on the High Court under Article 226 of the Constitution is to do justice to the parties. No one has been able to define with precision what is justice but there appears to be a consensus that justice lies in giving every person his due. The phenomenon of dependence of the individual on the rest of the society, shines with maximum brilliance in the region of justice. Justice is primarily to be given rather than to be taken by one's own efforts. In ancient literature, justice is equated with 'Dharam' and in 'Shanti Parva' of the epic 'Mahabharat, when Bheeshma, the great grand warrior was lying on the arrow bed and all the princes present near him wanted to know the secret of proper governance, the eldest of the 'Pandav' princes asked the question why is it that there is only one King and all the subjects submit to the authority of me King and honour him. The answer was given by way of illustration. Bheeshma to whom the question was addressed told that the King is honoured. by the subjects in the same manner in which a saviour would be honoured by the smaller fish whose very existence is threatened by a larger fish. The very object of the institution of the sovereign, is to save the lives of those who were weaker and unable to save themselves. Granting protection to the subjects against, all threats to the life, personal liberty and property is thus basic foundation of sovereignty. Sovereignty is, therefore, given power to determine the rights and duties of the people by making laws and there is a corresponding duty on the sovereign to enforce the law made by it and give justice to every man and woman by giving him/her what is his/her due. The basic difference between the human society and the society governed by the law of jungle appears to be this. In human society, every individual member is given justice by providing him/her what is his/her due even without any asking. On the other hand, in jungle nothing can be available and every thing is likely to be lost and taken away if the individual does not take necessary steps to protect his life, liberty and property and, fails to make effort to obtain what he requires. In jungle, justice is obtained by the individual by his own action. In human society justice is seldom taken by one's own effort and is generally bestowed on the individual by the rest of the society. We are, therefore, of the opinion that, as a general rule, it is duty of the State and the Society to do justice to every individual human being even without his asking and the cases in which an individual may be called upon to take some steps for the purpose of obtaining justice, should be rare and fall in the category of exceptions.
55. There is another important reason for coming to the conclusion that in a human society, protection and enforcement of the rights of the individual, is primarily the duty of the rest of the society and of the State and not of the concerned individual, though he may voluntarily participate in the process initiated for enforcement of his right and, in appropriate cases, the Legislature and the Courts may, make it mandatory on the part of the individual, whose rights are in question, to furnish required information or to do any other act necessary for effective protection and enforcement of his rights. The preamble to the Constitution of India, shows that the object behind constituting India into a sovereign socialist secular democratic republic is to secure to all its citizens, justice, social, economic and political; liberty of thought, expression, belief, faith and worship, equality of status and of opportunity and to promote among them all; fraternity assuring the dignity of the individual and the unity and integrity of the Nation. Thus, there are four primary objects aimed at by the framers of the 'Constitution. These are justice, liberty, equality and fraternity. The meaning of the expressions "justice, liberty and equality" is not obscured and the Courts have time and again interpreted relevant provisions of the i Constitution and the laws in force, to give meaning to the expression "justice, liberty and equality". The last expression 'fraternity" has, of course, received the least attention probably because of availability of a very little information about those facts which are responsible for creation, preservation and destruction of the human bonds of fraternity. The expression "fraternity" has not been defined in the Constitution but it appears that this expression is wide enough to include every bond of unity between two or more human beings, whether the bond, is temporary or it is permanent, whether it is contractual or sacramental; whether it is voluntary or commanded by law. Suffice it to say that fraternity referred to in the preamble to the Constitution of India, refers to human bonds among the people as well as the bonds between the sovereign and the subjects. The bond of fraternity, not only binds the parties to it, it creates mutuality of interaction and shifting of certain responsibilities according to the nature and form of the bond. Whatever may or may not be the obligation of the parties on account of the bond of fraternity between them, one thing is very obvious that unless the parties to the bond of fraternity would not honour, protect and enforce the rights of other parties to the bond, the bond of fraternity cannot survive. The duty to honour, protect and enforce the rights of other parties, is, therefore, inevitable if the bond of fraternity does exist. It is this bond of fraternity which characterises humanity and distinguishes it from those species who lack this bond. Fraternity, in our opinion, imposes a duty on every party, to honour, protect and enforce the rights of the other parties to the bond and this appears to be at the root of the maxim that wherever there is a right there must be a corresponding duty on some other fellow and there must be a remedy available for enforcing the right. The bond of fraternity which exists between the sovereign and subjects, makes it obligatory on the part of sovereign to enforce the rule of law and to administer justice to all citizens by honouring their rights and by taking appropriate steps to protect and enforce the same even if the citizen does not ask for it. The wages of failure in performance of this duty arising from the bond of fraternity would be the loss of fraternity and if this invisible bond of fraternity is lost, nothing can be a substitute for this bond. Since the Constitution of India aims at promoting the bonds of fraternity and integrity of the Nation, we feel that unless in exceptional cases, there is a just cause for not honouring and protecting the rights of others, it should be deemed to be a constitutional duty of the State and its agencies as well as of every citizen to honour and protect the rights of others, in order the bond of fraternity may not be destroyed and the object of promoting the bond of fraternity may be fulfilled. It goes without saying, that an attitude of indifference with reluctance to honour and protect the rights of others, who are related by some bond of fraternity, particularly those who are dependant on the State, its' various organs and the rest of the society for the protection of rights, lives and liberties and for justice, would be incompatible with the noble ideals for which the Constitution of India has been enacted. We, therefore, hold that the basic responsibility of protecting, honouring and enforcing the rights of the citizens, is of the State, its organs and the rest of the society and, therefore, the omission on the part of the citizen to assert his right or take steps for enforcing his own rights, does not offer an alibi for not honouring, protecting and enforcing his right particularly when the founding fathers of the Constitution have deemed it fit to create various organs of the State, including the High Courts with the sole purpose of enforcing the fundamental rights, administering justice to the people and to uphold the majesty of law. The cases in which the Court may find it just and proper not to entertain the petitions of the persons crying on account of injustice being meted out to them, must be of exceptional nature and before, any case is expressly or by necessary implication, declared to be a case of such exceptional nature, the scrutiny of all relevant matters must be made because the general rule is to honour and protect the rights and administer justice by enforcing them rather than to adopt an attitude of indifference and throw away the claim as delayed.
56. We do not intent to give a list of catalogue of cases in which the Courts may deem it necessary not to entertain the petition on the ground of delay, but we think that it would be useful to make a distinction between the cases in which relief under Article 226 of the Constitution is refused on the ground that the petitioner has an alternative remedy and, therefore, it would be appropriate if the petitioner avails of the alternative remedy for enforcement of his rights and the cases where there is no alternative remedy at all except to approach the High Court under Article 226 of the Constitution, In the cases falling in the former category, if the petitioner is guilty of undue delay in approaching the High Court, it may be inferred that he is not interested in obtaining the remedy under Article 226 of the Constitution and is desirous only to avail of the alternative remedy which is available to him. In such cases, if the petition is not entertained, the citizen would not be without remedy and it would be open to him to avail of the alternative remedy for the redressal of his grievance. On the other hand, in the cases falling in second category, if the petition is thrown away merely on the ground of delay, the petitioner would be without any remedy for the redressal of the wrong done to him and serious thought will have to be given to all the facts and circumstances of the case before arriving at the conclusion that his case should be thrown away on the ground of delay.
57. The cases where the alleged right, does not survive at all on the date of filing of the writ petition, must be distinguished from those cases which deserve to be dismissed on the ground of delay. If the petitioner's right does not survive on the date of the filing of the writ petition, the dismissal of the writ petition would be not on the ground that he has filed the writ petition with delay but on the ground that he has no cause of action at all to invoke the jurisdiction of this Court under Article 226 of the Constitution.
58. Administration of Justice and enforcement of rule of law, both are intended to fulfil the aspiration of the people that their lives and liberties shall be protected, equality shall be practised and actions concerning them would be as reasonable as may be humanly possible in the given set of circumstances so that the human society, in which people are knit together by bonds of fraternity may not only maintain itself but also fulfill the object of securing good to all and, conflicts and other evil factors which are detrimental to the human society may be completely avoided. When rule of law is violated and justice is denied, it is not only a single individual who is affected because when the peoples faith in rule of law and justice is shaken, the whole society is bound to suffer. The wounds caused by unjust acts do not heal until such time justice is vindicated and, the damage caused by breach of rule of law cannot be undone unless the majesty of law is restored by enforcing the rule of law. It explains why people prefer to wait for years together for the vindication of justice and enforcement of rule of law rather that adopt any other method for obtaining what they desire. It is never too late to uphold the majesty of law by enforcing the rule of law in the society. Similarly, it is never too late to do justice to the parties by declaring their respective rights and obligations ana giving them what is their due according to the law of the land. The needs of the individual may be short lived and the lives of the people have finite span but the humanity which has been created by hard toil, sufferings and pains, voluntarily suffered by millions of men and women, is neither short lived nor it has a limited span of life. It is perpetual and immortal and, therefore, the rule of law and the administration of justice which are necessary for upholding, preserving and perpetuating humanity and enabling it to make progress, cannot be allowed to be defeated on the ground of mere delay. We are, therefore, of the considered view that the duty to enforce the law and administer justice to the people cannot be avoided merely on the ground of delay unless there are exceptional circumstances justifying the denial of justice to a person in the given set of circumstances. The normal rule applicable to administration of justice and enforcement of the rule of law should be to enforce the rule of the law and administer justice, irrespective of the delay and, only in exceptional circumstances, this rule should be ignored. The burden to prove that such exceptional circumstances exist, as justify the denial of justice to the party approaching the Court, would naturally be on the person who alleges the presence of such exceptional circumstances because it is well established that the burden of proving that the case falls within exceptions to the general rule, is always on the person who makes such allegations. It is also well established that while interpreting the general rule, a liberal interpretation may be adopted but while dealing with the exceptions, rule of strict construction must be adopted because exceptions are carved out of the general rule on the ground of dire necessity and, therefore, they should be restricted to the cases of dire necessity and cannot be allowed to operate where there is no necessity of such exceptions.
59. So far as the merits of the case are concerned, we find no force in the submission that it is a fit case in which the writ petitions deserve to be thrown away on the ground of delay in approaching this Court under Article 226 of the Constitution. The reasons are given below:
(i) The right to get salary/wages in accordance with the award which has already attained finality, is a recurring right and, in the case of recurring right, a fresh cause of action, is available to the affected persons on every occasion whenever such right is violated. In the case of recurring rights, the petition cannot be thrown away on the ground of delay. We, therefore, hold that the petitions filed by the respondents were for the enforcement of recurring rights to salary/wages according to the award and, therefore, the petitions should not be thrown away on the ground of delay.
(ii) The right to salary/wages to which a man is entitled is so intimately related to his life and personal liberty conferred by Article 21 of the Constitution, that it is proper to hold that fight to livelihood is, for all practical purposes, in the case of persons possessed of limited resources, an integral part of their fundamental rights under Article 21 of the Constitution. In the case of persons' possessed of sufficient means other than their salary/wages, a different view may be possible but in the case of persons wholly or substantially dependant on the salary/wages for their livelihood, the right to get wages or salary must be regarded as a fundamental right under Article 21 of the Constitution. It is well established that fundamental rights cannot be waived by any person and, therefore, by no stretch of imagination, it can be said that mere delay in filing the petitions amounts to waiver of the right to get salary. We, therefore, hold that the writ petition filed by the respondents for enforcement of the right to livelihood could not be thrown away merely on the ground of delay in view of the mandatory provisions of Article 21 of the Constitution.
(iii) The discretion to reject the petition on the ground of delay is a discretion vested in the High Court. The parties to the cases, do not have any right in law to insist that the High Court should exercise its discretion by rejecting the petition on the ground of delay. In other words, the parties to the writ petition have no right at all to insist that the High Court should not exercise its constitutional power under Article 226 of the Constitution to grant relief because delay has been caused. The appellant has, therefore, no right in the eye of law to insist that the judicial discretion vested in the High Court should be exercised against the respondent by rejecting the petition on the ground of delay.
(iv) The Rajasthan State Electricity Board, is State under Article 12 of the Constitution. It is, therefore, duty bound to act in accordance with law of the land and to honour and protect the fundamental rights and legal rights of the respondents. No right much less a legal right is vested in the appellant-Board to do anything contrary to law or in contravention of the fundamental rights or legal rights of the respondents. Since the appellant-Board has no right at all to deny to the respondents their lawful wages/salary in accordance with the award which has already attained finality, rejection of the writ petitions filed by the respondents on the ground of delay would tantamount to confer upon the appellant-Board the right to do injustice and deprive the respondents of their right of livelihood under Article 21 of the Constitution. This Court does not have any power to confer on any person any right to do illegal and unconstitutional acts or omission. The constitutional power conferred by Article 226 of the Constitution is meant for enforcement of any fundamental right under Part III, or administration of justice or enforcement of rule of law and not for contrary purposes. What cannot be done by the Court directly, cannot be done indirectly. We are, therefore, of the opinion that we do not have any legal power to allow the appellant-Board to commit any illegality or to perpetuate the same and, therefore, the prayer that we should throw away the writ petition so that the appellant-Board may perpetuate the illegality committed by it, must be rejected.
(v) 'Begar' has been prohibited by Article 23 of the Constitution of India and Article 23 makes it punishable in accordance with law made by the Parliament. 'Begar' means labour or service exacted by Government or a person in power without giving remuneration for it. For the purpose of constituting the offence of 'Begar' under Article 23 of the Constitution, it is not necessary that there should be complete denial of the wages or salary which may be payable to the person from whom work is exacted. In order the fundamental right under Article 23 of the Constitution may not be frustrated, the expression' 'Begar will have to be liberally construed and if there is deliberate denial of substantial part of salary and wages to which a person is entitled, offence of 'Begar' may be committed if there is no other just cause for denying the salary or wages to the worker. In the instant case, the appellant-Board, has deliberately passed an order which is contrary to the award which is binding on it. To allow the appellant-Board to deny salary and wages to the respondents and the persons similarly situated, would amount to allowing the appellant-Board to contravene the provisions of Article 23 of the Constitution. It is impermissible.
(vi) The judgments delivered by this Court in Jawahar Singh's case (supra) and N. C. Kutti's case (supra) have attained finality. By these judgments, the impugned order by which lawful wages were denied to the respondents and similarly situated persons, has been found to be invalid and inoperative on account of being contrary to the terms of the award. The decisions given by this Court are binding on the appellant-Board and any act or omission which has the effect of showing disrespect or disobedience to the judicial orders passed by this Court, would amount to contempt of Court and would be punishable in accordance with law. It was necessary for the appellant-Board, to have corrected its mistakes as soon as the decisions given by this Court in Jawahar Singh's case (supra) and N.C. Kutti 's case (supra) attained finality. The appellant-Board, in place of showing respect to the decisions of this Court, has deliberately omitted to correct its mistakes on the misconceived notion that delay in filing the writ petition is sufficient to defeat the rule of law and the supremacy of justice or to render the judgments delivered by this Court ineffective. The prayer that the writ petition filed by the respondent be dismissed on the ground of delay, in the context of the binding decisions of this Court means that his Court should grant a licence to the appellant-Board to disregard and disobey the judgments delivered by this Court in the cases of Jawahar Singh and N. C. Kutti (supra).
(vii) It has been urged on behalf of the appellant that the impugned order whereby the wages/salary of the respondents were ordered to be fixed by the Deputy Director (Award) has attained finality and, therefore, that order cannot be disturbed by the order passed by the learned single Judge under Article 226 of the Constitution of India. This argument is wholly misconceived and without any basis. Illegal and void acts, are void ab initio. In the eye of law, they do not survive and much less mature into a powerful instrument by lapse of time. Even the law enacted by the legislature, does not acquire immunity from judicial review merely by lapse of time. The executive acts which are illegal and void can hardly be said to acquire any lease of life from inactions of those to whose detriment they operate. Every act of mankind is open to correction unless the Legislature in its wisdom attaches finality to it. The learned counsel for the appellant has not brought to our notice any provision of law which may be said to confer any finality or immunity from judicial review on account of lapse of time or the inaction on the part of the respondents to file the writ petition before this Court under Article 226 of the Constitution. These are only the judicial acts, which attain finality because of express provisions of law and the statutory finality which is attached to judicial acts is further subjected to the condition that the judgments and orders which are void ab initio, do not have any force to bind any party and can be collaterally challenged as and when the occasion arises. The executive orders passed by the appellant-Board relating to fixation of salary, do not attain any finality nor they acquire immunity from judicial review as to the legality, constitutionality and correctness. It is not only within the powers of the appellant-Board to correct a wrong order of fixation passed by it, it is a legal and constitutional obligation of the appellant-Board to honour the award and the decisions of this Court in Jawahar Singh's case and N. C. Kutti 's case (supra) and give to the respondents and persons similarly situated, what is their due.
(viii) Since the respondents have already tendered services to the appellant-Board in terms of the employment, they have become entitled to the salary/wages in accordance with the award and, therefore, the position of the appellant-Board vis-a-vis the respondents, is virtually that of the debtor. It is, therefore, the legal duty of the appellant-Board to give the salary/wages to which the respondents are entitled. No sufficient cause has been shown to us for not discharging this legal obligation.'
(ix) The impugned order dated January 7, 1984, passed by the Deputy Director (Award), is only a step taken by the appellant-Board to give effect to the award given by the Arbitrators. The entitlement to salary/wages claimed by the respondent, is not dependant on the order dated January 7, 1984 passed by the Deputy Director (Award). Since the entitlement to salary/wages, is founded on the award and not on the orders passed by the Board from time to time, unless the award is altered, modified or revoked, the appellant-Board cannot escape its liability to pay the salary and wages in terms of the award. Any other view would amount to holding the award giver, by the Arbitrators as subject to executive orders passed by the Board or its officers and it would be impermissible.
60. For the above mentioned reasons, we do not find any force in the submission that the writ petition filed by the respondents ought to have been dismissed by the learned single Judge on the ground of delay. In our considered opinion, the learned single Judge has followed the normal rule that in a petition instituted under Article 226 of the Constitution of India, the fundamental rights conferred by Part III should be enforced, justice should be administered to the aggrieved party and rule of law should be enforced by passing suitable orders or by giving suitable directions or issuing appropriate writs. The burden to prove that the case was of an exceptional nature warranting the dismissal'of the writ petitions was on the Board and the Board has failed in discharging this burden.
61. These special appeals have no merits and they deserve to be dismissed and are hereby dismissed.